Observación (CEACR) - Adopción: 2024, Publicación: 113ª reunión CIT (2025)

Convenio sobre la discriminación (empleo y ocupación), 1958 (núm. 111) - Namibia (Ratificación : 2001)

Road map for ILO technical assistance. Following the detailed discussion which took place at the 109th Session of the Conference Committee on the Application of Standards in June 2021 concerning the application of the Convention by Namibia, the Committee notes the Government’s indication, in its report, that an ILO Technical Advisory Mission made possible the development and agreement by the Government and social partners of a road map for ILO technical assistance. This road map contains 14 activities to be implemented, with clear timeframes, including: (1) the training of the Tripartite Labour Advisory Council on international labour standards; (2) an awareness campaign on discrimination for the general public; (3) training of 15,000 “change agents at workplaces” on the Convention; and (4) amendments to the Labour Act 2007 for full compliance with the requirements of the Convention. The Committee welcomes the development of such a road map, and it asks the Government to provide information on its implementation, including on the results achieved in meeting targets and deadlines, and any difficulty encountered to do so.

Article 1(1)(a) of the Convention. Discrimination based on sex. Sexual harassment. The Committee notes with regret the Government’s indication that: (1) the amendment to section 5(7)(b) of the Labour Act to prohibit all forms of sexual harassment – which the Government announced in the report it submitted in 2021 to the Committee – is yet to be finalized (in this regard, the Committee refers to its 2012 General Survey on fundamental Conventions, paragraph 789 and footnote 1979); and (2) the 2019 study conducted on harassment and violence in the world of work did not formulate specific recommendations with regard to sexual harassment. The Government adds, nevertheless, that in December 2022, to facilitate access to appropriate and effective remedies and safe, fair and effective dispute resolution mechanisms and procedures, the Ministry of Labour, Industrial Relations and Employment Creation (Ministry of Labour) trained arbitrators on how to deal with violence and harassment cases, including sexual harassment. The Committee further notes, from the concluding observations of the United Nations (UN) Committee on the Elimination of Discrimination against Women (CEDAW), the adoption and implementation of the National Plan of Action on Gender-Based Violence 2019–2023 and the establishment of the Tripartite Working Committee to implement the Violence and Harassment Convention, 2019 (No. 190). However, the CEDAW also noted with concern: (1) the reports of gender-based violence against women, including sexual harassment; and (2) the fact that statistical data on sexual harassment in the workplace is limited to cases lodged with the Office of the Labour Commissioner (CEDAW/C/NAM/CO/6, 12 July 2022, paragraphs 5(b), 27 and 39). The Committee requests the Government to amend section 5(7)(b) of the Labour Act with a view to ensure that it covers all forms of sexual harassment (both “quid pro quo” and “hostile environment” sexual harassment). In the meantime, the Committee requests the Government to provide information on: (i) the number, nature and outcome of complaints filed on the basis of section 5(7)(b) of the Labour Act, and the penalties imposed; and (ii) any preventive and awareness-raising measures implemented, including within the framework of the National Plan of action on Gender-Based Violence 2019–2023, by the Tripartite Working Committee to Convention No. 190 or any other relevant authority, to combat sexual harassment in employment and occupation, as well as on the results achieved.

Article 1(1)(b). Prohibited grounds of discrimination: HIV status, disability and family responsibilities. Legislation. The Committee notes the Government’s indication that the amendment to section 33 of the Labour Act on unfair dismissal has not been finalized. The Committee recalls that it has been raising this issue since 2009 and therefore notes with regret that while the general non-discrimination provision of the Labour Act (section 5) includes the grounds of HIV and AIDS, degree of mental disability and family responsibilities, these grounds are still not included in the prohibition against unfair dismissal contained in section 33 of the Act. The Committee requests the Government, once again, to take all necessary measures to ensure progress towards amending section 33 of the Labour Act in order to prohibit dismissals on the grounds of HIV status (actual or perceived), the degree of physical or mental disability, and family responsibilities, so as to ensure consistency with section 5 of the Labour Act.

Articles 2 and 5. Implementation of the national equality policy. In reply to its previous comment, the Committee notes with regret the Government’s indication that the Prohibition of Unfair Discrimination, Hate Speech and Harassment Bill, repealing the Racial Discrimination Prohibition Act of 1991, has not yet been adopted. It further notes the Government’s repeated information that, as a result of the Conference Committee discussion, the Ministry of Labour and the Office of the Ombudsman agreed to: (1) conduct thorough research in the public sector in order to establish the existence of discrimination in employment pertaining to racism, ethnicity and inequality; (2) design a research proposal on discrimination that would include the component of race and ethnicity; (3) mobilize funds for these research projects; (4) launch an awareness campaign on discrimination and racism; and (5) train arbitrators to adjudicate cases of discrimination and labour inspectors to detect “victimization” in employment and occupation. The Committee also notes that the Government fails to provide the requested information on the measures taken to implement both the National Human Rights Action Plan (NHRAP) for the period 2015–19 and the recommendations contained in the Ombudsman’s Special Report on Racism and Discrimination. The Committee further notes that, in its concluding observations, the CEDAW expressed concern that the National Gender Policy (2010–2020) and the NHRAP (2015–2019) had not been renewed or extended (CEDAW/C/NAM/CO/6, paragraph 19). In the absence of information provided, the Committee must request, once again, that the Government take the necessary measures in order to implement both the NHRAP 2015–19 and the recommendations contained in the Ombudsman’s Special Report on Racism and Discrimination, including: (i) the review of the recruitment process in the public service; (ii) the development and adoption of a code of good practice on the elimination of discrimination in employment in consultation with employers’ and workers’ organizations; (iii) the dissemination of information on the elimination of discrimination in employment; (iv) capacity building for judges, arbitrators, labour inspectors, affirmative action reports review officers and Ombudsman officials; and (v) the adoption of the Prohibition of Unfair Discrimination, Hate Speech and Harassment Bill. The Committee also requests the Government to provide information on any progress made in the implementation of these measures, on any assessment undertaken of the results achieved through the NHRAP 2015-2019 and on its possible renewal or extension.

Persons disadvantaged on the ground of race, women and persons with disabilities. Affirmative action. The Committee notes with regret the Government’s indication that the amendment to the Affirmative Action (Employment) Act 1998 aimed at, among others, broadening the mandate of the Employment Equity Commission (EEC), is not yet finalized. It takes note of the Government’s undertaking to keep the ILO updated with any progress achieved towards the amendment. The Committee further notes, from the concluding observations of the CEDAW, that the Government has been taking measures to increase the representation of women in management positions and introduced a scorecard system to increase affirmative action at the workplace. However, the CEDAW also expressed concern about the limited use of temporary special measures where groups of women are underrepresented or disadvantaged, such as the participation of women with disabilities in the workforce and the representation of indigenous women in political and public life (CEDAW/C/NAM/CO/6, paragraph 23). The Committee requests the Government to take the necessary measures in order to: (i) review the Affirmative Action (Employment) Act 1998, amended in 2007; and (ii) reinforce the mandate of the Employment Equity Commission to deal with cases of discrimination, strengthen its capacity and clarify how its decisions affect the employers’ filling of certain job positions, as requested by the Conference Committee on the Application of Standards in June 2021. Further, noting the absence of information provided in reply to its previous requests, the Committee once again asks the Government to provide information on: (i) the concrete measures taken to promote access to employment and occupational training for designated groups (defined, in section 18(1) of the Affirmative Action (Employment) Act 1998, as “racially disadvantaged persons”, women and persons with disabilities); and (ii) the measures put in place to review regularly the affirmative action measures to assess their relevance and impact. Please also provide information on the most recent Affirmative Action Report of the EEC.

Enforcement. The Committee notes the Government’s indication that it is continuing its public awareness campaign on labour rights through various platforms including national radio and trade fairs. The Government adds that: (1) no record of cases of discrimination dealt with by the Labour Courts was available at the time of reporting; and (2) from January to March 2023, among the 1,401 cases dealt with by labour inspectors, none of them concerned discrimination. In this regard, the Committee wishes to recall that where no cases or complaints, or very few, are being lodged, this is likely to indicate a lack of an appropriate legal framework, lack of awareness of rights, lack of confidence in, or absence of, practical access to procedures, or fear of reprisals. The lack of complaints or cases could also indicate that the system of recording violations is insufficiently developed (see the 2012 General Survey on the fundamental Conventions, paragraph 870). Further, the Committee notes that the Government does not provide information on the previously mentioned measures which were envisaged to make remedies more accessible such as: (1) carrying a desktop research on how other countries ensure effective access to legal remedies; (2) enacting regulations requiring employers to display information at the workplace informing employees of available legal remedies for discrimination and how to access them; (3) disseminating information to members of the public and specific stakeholders on rights and remedies regarding discrimination; and (4) designing electronic pamphlets on referral of discrimination disputes, to be displayed on a wide range of platforms. The Committee therefore asks the Government to take measures to: (i) improve the capacity of the competent authorities, particularly labour inspectors, magistrates and other public officials, to identify and address cases of discrimination and to facilitate access to legal remedies; and (ii) raise public awareness of equality and discrimination rights granted by the Convention, including within the framework of the Roadmap for ILO technical assistance, through the labour inspectorate or any other means. It once again asks the Government to provide information on: (i) the measures taken to this end, including by indicating the progress made towards the implementation of the measures enumerated by the Government to make remedies more accessible for victims of discrimination on the basis of any of the prohibited grounds; and (ii) the number and nature of cases of discrimination dealt with by labour courts and the labour inspectorate, if any, and their outcome.

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