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

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Namibia (Ratification: 1995)

Articles 1 and 2 of the Convention. Protection against acts of anti-union discrimination and interference. In its previous comments, the Committee had noted that the Labour Act of 2007 prohibits and sanctions acts of anti-union discrimination and acts of interference by the employer in the internal affairs of a trade union. The Act also provides for reinstatement and back pay compensation awards as remedies for acts of anti-union discrimination. The Committee further noted that allegations of anti-union discrimination or interference may be referred to the Labour Commissioner for referral to arbitration, and cases alleging anti‑union discrimination suits may also be brought before the Labour Court. The Committee had requested the Government to provide detailed information on the rapidness of the arbitration procedures in cases alleging anti-union discrimination and interference. The Committee notes that, unless a dispute has already been conciliated, the arbitrator must attempt to resolve the dispute through conciliation before beginning the arbitration (section 86(5) of the Labour Act). In this regard, the Committee notes that the Government indicates in its report that, according to section 82(10) of the Labour Act, a conciliator must attempt to resolve a dispute within 30 days of the date the Labour Commissioner received the referral of the dispute. However, the Government does not provide details on the rapidness of the subsequent arbitration procedures (Part C, section 84 and ss. of the Labour Code) in cases alleging anti-union discrimination and interference. In this regard, the Committee notes that, according to section 86(7)(a) of the Labour Act, the arbitrator may conduct the arbitration in a manner that he considers appropriate in order to determine the dispute fairly and quickly. The Committee therefore once again requests the Government to provide details on the rapidness of the arbitration procedures in cases alleging anti-union discrimination and interference.

Article 4. Recognition for purposes of collective bargaining. In its previous comments, the Committee had noted that section 64(1) of the Labour Act states that: “a registered trade union that represents the majority of the employees in an appropriate bargaining unit is entitled to recognition as the exclusive bargaining agent of the employees in that bargaining unit for the purpose of negotiating a collective agreement on any matter of mutual interest”. Furthermore, section 64(2) prohibits an employer or employers’ organization from recognizing a trade union as an exclusive bargaining agent unless the requirements of section 64(1) have been fulfilled. The Committee recalled that problems may arise when the law stipulates that a trade union must receive the support of 50 per cent of the members of a bargaining unit to be recognized as a bargaining agent: a majority union which fails to secure this absolute majority is thus denied the possibility of bargaining. The Committee also recalled that, in these conditions, if no union covers more than 50 per cent of the workers, collective bargaining rights should be granted to all the unions in this unit, at least on behalf of their own members (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 241). In this respect, the Committee notes that, in its reports, the Government refers to section 64(2) and (3) of the Labour Act, the section already mentioned above by the Committee, without further explanations. The Committee therefore once again requests the Government to indicate whether, if no union covers more than 50 per cent of the workers, the minority unions in the bargaining unit enjoy collective bargaining rights, at least on behalf of their members. The Committee also requests the Government to indicate in practice, whether, minority unions enjoy collective bargaining rights in cases where there is no union representing 50 per cent of the workers concerned. If this is the case, the Committee requests the Government to provide relevant examples and statistics.

Trade union federations and confederations and collective bargaining. Finally, in its previous comments, the Committee had requested the Government to indicate whether trade union federations and confederations enjoy the right to bargain collectively and, if so, to specify the legal basis for said right. The Committee considers that section 64 of the Labour Act poses a problem with the Convention, in that the requirement of exclusive bargaining agent may lead to a prohibition on trade union federations and confederations from engaging in collective negotiations. The Committee also considers that the right to bargain collectively should also be granted to federations and confederations; any restriction or prohibition in this respect hinders the development of industrial relations and, in particular, prevents organizations with insufficient means from receiving assistance from higher level organizations, which are in principle better equipped in terms of staff, funds and experience to succeed in such bargaining. The Committee recalls that the choice should normally be made by the partners themselves, since they are in the best position to decide the most appropriate bargaining level, including, if they so wish, by adopting a mixed system of framework agreements supplemented by local or enterprise-level agreements (see General Survey, op. cit., paragraph 249). In these circumstances, the Committee once again requests the Government to indicate whether trade union federations and confederations enjoy the right to bargain collectively and, if so, to specify the legal basis for said right.