Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Namibia (Ratification: 1995)

Observation (CEACR) - adopted 2022, published 111st ILC session (2023)

Article 2 of the Convention. Right to organize of prison staff. The Committee recalls that it had previously noted that section 2(2)(d) of the Labour Act excluded members of the Namibian prison service from the Labour Act’s provisions unless the Prisons Service Act provided otherwise. The Committee had further noted that the Prisons Service Act did not provide for the extension of the new Labour Act’s guarantees to the Namibian prison service; nor did it contain any provisions establishing their freedom of association rights. The Committee requested the Government to provide information on the legislative amendments adopted to ensure that prison staff have the right to establish and join organizations for furthering and defending their interests. The Committee notes the Government’s indication that the final report of the Tripartite Task Force proposes the deletion of section 2(2)(d) of the Labour Act and that the final report would be submitted to the minister before December 2021. The Committee requests the Government to take all necessary steps to expedite the process for adoption of legislative amendments to ensure that the prison services enjoy the guarantees under the Convention without further delay. The Committee once again requests the Government to provide information on any progress in this regard.

Replies received to the issues raised in a direct request which do not give rise to further comments (CEACR) - adopted 2017, published 107th ILC session (2018)

The Committee notes the information provided by the Government, which answers the points raised in its previous direct request, and has no further matters to raise in this regard.

Observation (CEACR) - adopted 2017, published 107th ILC session (2018)

The Committee notes the observations of the International Trade Union Confederation (ITUC), received on 1 September 2017, alleging violation of the right to strike in various sectors. The Committee requests the Government to provide its comments thereon.

Article 2 of the Convention. Right to organize of prison staff. In its previous observation, the Committee had requested the Government to take all necessary steps to expedite the process for adoption of legislative amendments to ensure that prison staff enjoy the guarantees under the Convention. The Committee notes the Government’s indication that a Tripartite Task Working Committee has been established and is currently reviewing the Labour Act together with the prison service issues; an appropriate recommendation is expected on this matter. The Committee expects that the relevant legislative amendments will soon be adopted in order to ensure that prison staff have the right to establish and join organizations for furthering and defending their interests. It requests the Government to provide information on any progress made in this regard.

Direct Request (CEACR) - adopted 2014, published 104th ILC session (2015)

Article 3 of the Convention. Determination of essential services. In its previous comments, the Committee requested the Government to indicate if the designation of an essential service by the Minister, under section 77(4), (5) and (15) of the Labour Act, 2007, could be appealed or revised by the courts. The Committee notes the Government’s indication that section 117 of the Labour Act provides that the Labour Court may review decisions of the Minister made under the Act, including decisions by the Minister designating essential services. The Committee requests the Government to provide information concerning any requests made to the Labour Court for review of ministerial designations of essential services and their outcome.

Article 5. Right to form federations and confederations. In its previous comments, the Committee requested the Government to specify the legal basis for the right of trade unions and employers’ organizations to form confederations. The Committee notes the Government’s indication that it is not aware of a difference between a confederation and federation, and that Namibian legislation provides for trade unions and employers’ organizations to form federations. The Committee hopes that the Government will ensure that federations of workers’ and employers’ organizations have the right to form confederations in accordance with the law.

Observation (CEACR) - adopted 2014, published 104th ILC session (2015)

The Committee notes the observations of the International Trade Union Confederation (ITUC) received in 2011 and on 1 September 2014 and the observations of the International Organisation of Employers (IOE) in a communication received on 1 September 2014.

Article 2 of the Convention. Right to organize of prison staff. In its previous observation, the Committee noted the indications from the Government that it was in the process of consulting in the Cabinet with the hope that permission would be granted to proceed with legislative amendments to guarantee to the prison service the rights provided under the Convention and the Committee expressed the hope that the necessary legislative amendments would be adopted in the near future. The Committee notes the Government’s indication that new legislation has not been tabled to Cabinet and that a proposal was made in August 2014 for a tripartite meeting to include the Minister of Labour and Social Welfare, the Minister of Prison Services and a union representative to discuss ways to resolve this matter with a support of technical assistance from the Office. The Committee requests the Government to take all necessary steps to expedite the process for adoption of legislative amendments to ensure that the prison services enjoy the guarantees under the Convention without further delay. The Committee requests the Government to provide information on any progress in this regard.

The Committee is raising other matters in a request addressed directly to the Government.

Direct Request (CEACR) - adopted 2010, published 100th ILC session (2011)

Article 3 of the Convention. In its previous comments, the Committee had noted that section 77 of the Labour Act, 2007, establishes the procedures for the determination of an essential service, and in particular that the final decision on the determination of a service as essential rests with the Minister of Labour, after consideration of the recommendations formulated by the Labour Advisory Council and the Essential Services Committee (section 77(1), (3), (4) and (5) of the Labour Act). The Committee had requested the Government to indicate whether parties directly affected by decisions of the Minister taken under section 77 of the Labour Act may appeal the Minister’s decisions, and if so to indicate the legal provision providing for this right of appeal. The Committee notes that the Government refers in its report to sections 77(9) and (12) and 78 of the Labour Act concerning the possibility to refer to the Essential Services Committee a dispute about whether or not an employee or an employer is engaged in an essential service. In these circumstances, the Committee requests the Government to indicate if the designation of an essential service by the Minister, under section 77(4), (5) and (15) of the Labour Act, can be appealed or revised by the courts of Namibia.

Article 5. In its previous comments, the Committee noted that section 59 of the Labour Act guarantees to trade unions and employers’ organizations the right to form and participate in the activities of federations, as well as the right to affiliate with, and participate in, the activities of international organizations. The Committee requested the Government to indicate whether federations of workers’ and employers’ organizations have the right to form confederations. The Committee notes that the Government indicates in its report that trade unions and employers’ organizations have the right to form confederations and have been in existence for many years. The Committee requests the Government to specify the legal basis for the said right.

Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

Article 2 of the Convention. Right to organize of prison staff. In its previous comments, the Committee had noted that section 2(2)(d) of the Labour Act excludes members of the Namibian prison service from the Labour Act’s provisions, unless the Prisons Service Act, 1998 (Act No. 17 of 1998), provides otherwise. The Committee further noted, in this regard, that the Prisons Service Act does not provide for the extension of the new Labour Act’s guarantees to the Namibian prison service; nor does it contain any provisions establishing their freedom of association rights.

The Committee had noted the Government’s indication that it was willing to consider the issue, and that it is therefore thought appropriate to first consult widely with all the relevant parties before a decision is taken on whether to amend the Labour Act or the Prisons Service Act in order to give effect to the principles of freedom of association and the right to organize, as well as to provide for effective mechanisms to deal with and resolve labour disputes. The Committee notes that, in its report, the Government indicates that it is in the process of consulting in the Cabinet with the hope that permission will be granted to proceed with the legislative amendments that are required. In these circumstances, the Committee once again expresses the hope that the necessary legislative amendments to guarantee to the prison service the rights provided under the Convention will be adopted in the near future and requests the Government to indicate, in its next report, any developments in this regard.

Finally, the Committee notes the comments made by the International Trade Union Confederation (ITUC) in a communication dated 24 August 2010 on the application of the Convention, and in particular on the arrests of trade unionists who were participating in strike pickets. The Committee recalls that the detention of trade union members for trade union activities is contrary to the principles of freedom of association. The Committee requests the Government to provide its observations in this respect.

The Committee is raising other points in a request addressed directly to the Government.

Direct Request (CEACR) - adopted 2008, published 98th ILC session (2009)

The Committee notes the Government’s report and the provisions of the new Labour Act of 2007.

Article 3 of the Convention. The Committee notes that section 77 establishes the procedures for the determination of an essential service, and in particular that the final decision on the determination of a service as essential rests with the Minister of Labour, after consideration of the recommendations formulated by the Labour Advisory Council (sections 77(4) and 77(15)). The Committee requests the Government to indicate whether parties directly affected by decisions of the Minister taken under section 77 of the Labour Act may appeal the Minister’s decisions, and if so to indicate the legal provision providing for this right of appeal.

Article 5. The Committee notes that section 59 of the Labour Act guarantees to trade unions and employers’ organizations the right to form and participate in the activities of federations, as well as the right to affiliate with, and participate in, the activities of international organizations. The Committee requests the Government to indicate whether federations of workers’ and employers’ organizations have the right to form confederations.

Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

The Committee notes the comments submitted by the Public Service Union of Namibia (PSUN) dated 26 October 2007, and by the International Trade Union Confederation (ITUC) dated 29 August 2008, concerning the application of the Convention and, in particular, the exclusion of prison service staff from the provisions of the new Labour Act of 2007, and hence from the guarantees afforded by the Convention.

Article 2 of the Convention. Right to organize of prison staff. The Committee notes the adoption of the new Labour Act of 2007, which is not yet in force. The Committee notes that section 2(2)(d) of the Labour Act excludes members of the Namibian Prison Service from the Labour Act’s provisions, unless the Prisons Service Act, 1998 (Act No. 17 of 1998) provides otherwise. The Committee further notes, in this regard, that the Prisons Service Act does not provide for the extension of the new Labour Act’s guarantees to the Namibian Prison Service; nor does it contain any provisions establishing freedom of association rights for the latter.

The Committee notes the Government’s indication that it is willing to consider the issue, and that it is therefore thought appropriate to first consult widely with all the relevant parties before a decision is taken on whether to amend the Labour Act or the Prisons Service Act in order to give effect to the principles of freedom of association and the right to organize, as well as to provide for effective mechanisms to deal with and resolve labour disputes. The Committee further notes that, according to the Government, the consultation process – which would include the ILO – will take considerable time before any tangible decision to change the legislation can be taken. In these circumstances, the Committee expresses the hope that the necessary legislative amendments to guarantee to the prisons service the rights provided under the Convention will be adopted in the near future and requests the Government to indicate, in its next report, any developments in this regard.

A request concerning other points is being addressed directly to the Government.

Direct Request (CEACR) - adopted 2005, published 95th ILC session (2006)

The Committee notes the comments submitted by the International Confederation of Free Trade Union (ICFTU) in a communication dated 31 August 2005. The Committee notes that these comments concern alleged restrictions on union organizing and deportation of workers from Bangladesh for protesting. Other comments concern Convention No. 98. The Committee requests the Government to provide its observations on these comments in its next report.

Observation (CEACR) - adopted 2004, published 93rd ILC session (2005)

The Committee takes note of the Government’s report.

In its previous comments, the Committee had noted with satisfaction the information provided by the Government that Labour Act No. 6 of 1992 was applicable in its entirety to all zones, including export processing zones (EPZs). It requested, in this respect, that the Government transmit a copy of the repealing order relevant to the Export Processing Zones Amendment Act, 1996, which had prohibited any employee from taking industrial action in EPZs. The Committee notes with satisfaction from the Government’s report that the provision in the EPZ Amendment Act lapsed automatically and is thus no longer valid.

Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee takes note of the Government’s report.

In its previous comments, the Committee had noted the need to repeal the provision in the Export Processing Zones Amendment Act, 1996, which prohibited any employee from taking action by way of, or participating in, a strike in an export processing zone (EPZ), an action for which the worker was liable to disciplinary penalty or dismissal.

The Committee now notes with satisfaction that the Labour Act, No. 6, of 1992 is applicable in its entirety to all zones, including the export processing zones. It requests the Government to transmit a copy of the repealing order in question with its next report.

Observation (CEACR) - adopted 2000, published 89th ILC session (2001)

The Committee notes the information provided in the Government’s report.

Articles 3 and 10 of the Convention. Right to strike in export processing zones. In its previous comments, the Committee noted the need to repeal the provision in the Export Processing Zones Amendment Act, 1996, which prohibited any employee from taking action by way of, or participating in, a strike in an export processing zone (EPZ), an action for which the worker is liable to disciplinary penalty or dismissal. The Committee notes with interest from the Government’s latest report that the tripartite Labour Advisory Council agreed to recommend to the Minister of Labour to advise Parliament by June 2001 not to re-enact the provision in the EPZ Amendment Act which prohibits strikes in the zones. The Government adds that it can only communicate the official government position once this issue is discussed in Parliament. The Committee hopes that the necessary measures will be taken in the near future to ensure that workers in export processing zones are not penalized for strike action taken in defence of their interests and requests the Government to keep it informed of the progress made in this regard.

Articles 2 and 3. Application of the Labour Act and the provisions of the Convention in EPZs. In its previous comments, the Committee had noted that section 8(10) of the EPZ Amendment Act provided that the entire section, which provides in particular for the application of the Labour Act to EPZs (section 8(1)), will be deemed to have been repealed if not re-enacted by June 2001. The Committee requests the Government to keep it informed of the discussions held in Parliament in respect of the re-enactment of the general application of the Labour Act and to indicate in its next report whether the Labour Act will continue to be applied to export processing zones.

Observation (CEACR) - adopted 1999, published 88th ILC session (2000)

The Committee takes note of the information provided by the Government in its report.

1. Articles 3 and 10 of the Convention. Right to strike in export processing zones. The Committee recalls that its previous comments concerned the need to repeal the provision in the Export Processing Zones Amendment Act, 1996, which prohibited any employee from taking action by way of, or participating in, a strike in an export processing zone (EPZ), an action for which the worker is liable to disciplinary penalty or dismissal (section 8(2)(a) and (b)). In its latest report, the Government acknowledges that the prohibition of industrial actions in EPZs could be incompatible with the provisions of the Convention and has therefore referred this issue to a tripartite Labour Advisory Council for advice and corrective measures. While taking note of this information, the Committee requests the Government to indicate in its next report any progress on measures taken or envisaged in order to ensure that workers in export processing zones will not be penalized for strike action taken in defence of their interests.

2. Articles 2 and 3. Application of the Labour Act and the provisions of the Convention in EPZs. With regard to section 8(10) of the EPZ Amendment Act, 1996, which provides that the provisions of that section shall be deemed to have been repealed if not re-enacted by Parliament by June 2001, the Committee notes the Government's statement according to which the re-enactment of the prohibition of strikes and lockouts was not advisable and should thus disappear automatically in 2001. Nevertheless, with regard to the general application of the Labour Act to EPZs after the year 2001, the Committee requests once again the Government to indicate the measures taken or envisaged to ensure that workers in EPZs will continue to be afforded the full protection of the Convention, including the full exercise of the right to organize, beyond this period.

Observation (CEACR) - adopted 1998, published 87th ILC session (1999)

The Committee notes the information provided by the Government in its latest report.

In its previous comments, the Committee had noted the adoption of the Export Processing Zones Amendment Act, 1996, which provided for the application of the Labour Act to export processing zones, an Act whose application had previously been excluded in these zones. The Committee had asked the Government, however, to repeal the provision in the Amendment Act which prohibited any employee from taking action by way of, or participating in, a strike in an export processing zone (EPZ), an action for which the worker is liable to disciplinary penalty or dismissal (section 8(2)(a) and (b)).

In its latest report, the Government indicates that disputes in EPZs have to be channelled through the dispute resolution mechanisms as provided for in the Labour Act and, in the event a dispute remains unresolved, it shall be referred to compulsory arbitration. The Government indicates that, due to the high rate of unemployment, it reached a compromise with the labour movement to prohibit strikes and lockouts for a period of five years. The Government adds that, in Namibia, the right to employment is more fundamental than the right to strike.

While noting the Government's statement that, due to the high rate of unemployment, the prohibition of strikes for five years was the result of a compromise with the labour movement, the Committee cannot but observe that the prohibition of strikes in export processing zones is not drafted as a clause in a collective agreement, but is rather incorporated in legislation with provision for severe penalty. In the view of the Committee this is incompatible with the provisions of the Convention, which provide that all workers, without distinction whatsoever, shall have the right to establish organizations of their own choosing and that such organizations shall have the right to organize their activities and to formulate their programmes (Articles 2 and 3 of the Convention) (see General Survey on freedom of association and collective bargaining, 1994, paragraph 169). It therefore requests the Government to indicate at an early date any progress made in ensuring that workers in export processing zones, like other workers in the country, will not be penalized for strike action taken in the defence of their interests.

In addition, the Committee notes that section 8(10) of the EPZ Amendment Act, 1996, provides that the provisions of that section, which concern the application of the Labour Act to EPZs and the prohibition of strikes and lockouts, shall be deemed to have been repealed if not re-enacted by the Parliament within a period of five years after the commencement date of the Amendment Act. The Committee notes with concern that this would appear to affect the application generally of the Labour Act to EPZs after the year 2001. The Government is therefore requested to indicate the measures taken or envisaged to ensure that workers in EPZs will continue to be afforded the full protection of the Convention, including the full exercise of the right to organize, beyond this period.

[The Government is asked to report in detail in 1999.]

Observation (CEACR) - adopted 1997, published 86th ILC session (1998)

In its previous comments, the Committee had noted with concern that section 8(1) of the Export Processing Zones Act, 1995 (Act No. 9 of 1995) stipulated that the provisions of the Labour Act did not apply in an export processing zone (EPZ) and requested the Government to take appropriate steps to amend Act No. 9 so as to ensure the application of the Labour Act in EPZs.

In this regard, the Committee notes with interest the adoption of the Export Processing Zones Amendment Act, 1996, which provides that the Labour Act shall be applicable in an export processing zone, subject to certain modifications and exceptions. The Committee must, however, note with concern that the EPZ Amendment Act prohibits any employee from taking action by way of, or participating in, a strike in an export processing zone. In this respect, the Committee would draw the Government's attention to paragraph 169 of its 1994 General Survey on freedom of association and collective bargaining in which it has indicated that the prohibition of strikes in export processing zones is incompatible with the provisions of the Convention, which provide that all workers, without distinction whatsoever, shall have the right to establish organizations of their own choosing and that such organizations shall have the right to organize their activities and to formulate their programmes without interference by the public authorities (Articles 2 and 3 of the Convention).

The Committee therefore requests the Government to take appropriate steps to further amend the Export Processing Zones Act so as to ensure that workers in export processing zones, like other workers in the country, are not denied the right to strike and requests the Government to indicate in its next report the progress made in this regard.

Direct Request (CEACR) - adopted 1996, published 85th ILC session (1997)

While noting with interest the contents of Labour Act (No. 6 of 1992) which recognizes, amongst other things, the right of workers and employers, respectively, to establish and join trade unions and employers' organizations of their own choosing, the Committee notes with concern that section 8(1) of the Export Processing Zones Act, 1995 (Act No. 9 of 1995) stipulates that the provisions of the Labour Act shall not apply in an export processing zone (EPZ). The Committee has emphasized the importance it attaches to the need for all workers, without distinction whatsoever and including those employed in EPZs, fully to enjoy the trade union rights provided for by the Convention. It has also recalled that the Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy, adopted by the Governing Body in November 1977, states in paragraph 45 that "where governments of host countries offer special incentives to attract foreign investment, these incentives should not include any limitation of the workers' freedom of association or the right to organize and bargain collectively." (See 1994 General Survey on freedom of association and collective bargaining, paragraph 60.)

The Committee therefore requests the Government to take appropriate steps to ensure that the Export Processing Zones Act is amended so as to allow the application of the Labour Act in EPZs. It requests the Government to inform it in its next report of any progress made in this regard.

Observation (CEACR) - adopted 1996, published 85th ILC session (1997)

The Committee notes the detailed information supplied by the Government in its first report, as well as the entry into force on 8 April 1992 of Labour Act (No. 6 of 1992). The Committee notes with satisfaction that the provisions of this Act recognize the right of workers and employers, respectively, to establish and join trade unions and employers' organizations of their own choosing without previous authorization. The Committee further notes that this Act allows workers' and employers' organizations to draw up their constitutions and rules, to elect their representatives in full freedom and to organize their administration and activities including the right to take action by way of strike. In addition, a request regarding another point is being addressed directly to the Government.