Martin Endjala
The Mine Workers Union of Namibia Assistant Secretary, Paul Situmba says as much as he wants to be excited about the review of the Labour Law, he lamented the length of time that the process is taking.
Situmba said while the review is underway, workers continue to suffer in their workplaces while the review keeps going on and never concludes.
“It is long overdue. They have dragged on with the review for years now. When are they going to conclude so that we can finally see the law addressing some of these shortcomings? I have even lost the appetite and I doubt if it will be in the interests of the workers or investors,” Situmba said.
He expressed his concerns about the consultations conducted by the government in terms of inputs into the law and added that although people are sharing their inputs, the end product is decided by the government when it amends the law.
He emphasized that the government tends to amend the law to suit investors and not its people.
“We are victims of our laws in this country, and even if they amend the laws to benefit us, it is so sad, to continue seeing our people suffering because the law fails to protect its people,” he said.
He called on the government to keep in mind when making amendments to the law, not to suit investors only but Namibians as well. The unionist wants the government to address most of the issues affecting workers, especially severance packages to accord a deserving retirement or retrenchment life.
In response, the Ministry of Labour Industrial Relations and Employment Acting Executive Director, Otniel Podewiltz explained that the present Labour Act No. 11 of 2007 is a result of tripartite consultations and compromises.
“In terms of addressing the limitations specified by the Labour Act. “It is important to note that the Ministry does not possess exclusive authority to modify the provisions of the Labour Act. The process of initiating any changes requires tripartite consultations involving the state representative (the Ministry), Employers; representatives (Employers; Organisations), and worker representatives (Trade Unions), respectively,” said Podewiltz.
He said that these consultations facilitate a collective decision-making process to review and potentially amend the existing provisions of the Labour Act.
He confirmed that the Labour Act is currently under review and that the Ministry hopes that through this opportunity, concerns like that of MUN, relating to reasonable severance package would be addressed.
He explained that termination payment is provided for in Section 37 of the Labour Act, in accordance with Section 37 of the Labour Act, employees whose services are terminated are entitled to receive their rightful dues upon termination.
This includes work done before termination, any paid time off that the employee is entitled to in terms of sections 21(5) or (6) or 22(5) that the employee has not taken, any period of annual leave due for any completed annual leave cycle in terms of section 23, any annual leave pay which the employee is entitled to in any incomplete annual leave cycle in terms of subsection (2), any severance pay due in terms of section 35 which is payment equivalent to at least one week’s remuneration for each year of continuous service with the employer, any notice pay contemplated in section 31 if the employee is paid instead of being given notice and any transport allowance due in terms of section 36.
Dismissal arising from collective termination or redundancy as provided for in Section 34 Employers seeking to downsize their workforce must adhere to the provisions outlined in Section 34 of the Labour Act No. 11 of 2007.
This legislation, Podewiltz said, requires that employers inform their employees about any planned terminations or reductions in staff resulting from reorganization, business transfers, discontinuation, or economic/technological reasons, with a minimum notice period of four weeks before the intended date of dismissal.
A notice of termination in terms of Section 34 is to be provided in writing to the Office of the Labour Commissioner as well as the Employees and in the case of a trade union recognized as the exclusive bargaining agent to that trade union as well.
“In practice, employers in most cases do provide such a notice verbally before submitting the written notice of termination to comply with section 34. Although a verbal notice can be given, a written notice is still required,” he said.
When a verbal notice is given the employer has to still proceed to notify the Office of the Labour Commissioner, employees and trade unions in writing four weeks prior to the actual date of termination, said the acting ED.
Section 34 (2) has made provision for a notice of less than four weeks if it is not practicable to do so within the period of four weeks.
Employers are required to disclose all relevant information necessary for the trade union or workplace representatives to engage effectively in the negotiations over the intended dismissals and to negotiate in good faith with the trade union or workplace representatives.
Negotiations during retrenchments must also cover areas such as alternatives to dismissals, the criteria for selecting employees for dismissals, how to minimize the dismissals, the conditions on which the dismissals are to take place and how to avert the adverse effects of the dismissals. If after the negotiations and selections, the parties do not reach an agreement, either party, may, within one week after the notice period refer the matter to the Office of the Labour Commissioner who must appoint a conciliator to assist the parties to resolve their dispute.
After his/her appointment, the conciliator must convene meetings of the parties as may be necessary up to a maximum period of four (4) weeks as per the date the dispute was referred to the Office of the Labour Commissioner.
He maintained that it is necessary to deal with the issue of disguised transfer or continuance of an employer’s operation after retrenchment.
If there is a disguised transfer or continuance of an employer’s operation which employs or employed employees who are to be dismissed or were dismissed in terms of Section 34 the union or the employees may apply to the Labour Court for relief.
