LABOUR ACT - CommonLII

1 [Act No. - 2004]REPUBLIC OF NAMIBIAPARLIAMENT_____LABOUR ACT2 ACTTo consolidate and amend the LABOUR law; to establish a comprehensive LabourLaw for all employers and employees; to entrench fundamental LABOUR rightsand protections; to regulate basic terms and conditions of employment; toensure the health, safety and welfare of employees; to protect employees fromunfair LABOUR practices; to regulate the registration of trade unions andemployers organisations; to regulate collective LABOUR relations; to providefor the systematic prevention and resolution of LABOUR disputes; to establishthe LABOUR Advisory Council, the LABOUR Court, the Wages Commission andthe LABOUR inspectorate; to provide for the appointment of the LabourCommissioner and the Deputy LABOUR Commissioner; and to provide forincidental OF CONTENTSCHAPTER 1 INTRODUCTORY PROVISIONS1. Definitions and interpretation2. Application of ActCHAPTER 2 FUNDAMENTAL RIGHTS AND PROTECTIONS3. Prohibition and restriction of child labour4.

2 Prohibition of forced labour5. Prohibition of discrimination and sexual harassment in employment6. Freedom of association7. Disputes concerning fundamental rights and protectionsCHAPTER 3 BASIC CONDITIONS OF EMPLOYMENTPART AAPPLICATION OF THIS CHAPTER8. Definitions relating to basic conditions of employment9. Basic conditionsPART BREMUNERATION10. Calculation of various wage rates11. Payment of remuneration12. Deductions and other acts concerning remuneration13. Wage order14. Exemptions from a wage orderPART CHOURS OF WORK15. Declaration of continuous shifts16. Ordinary hours of work17. Overtime318. Meal intervals19. Night work20. Daily spread-over and weekly rest period21. Work on Sundays22. Public holidaysPART DLEAVE23. Annual leave24. Sick and compassionate leave25. Maternity leave26. Extended maternity leavePART EACCOMMODATION27. Provision of accommodationPART FTERMINATION OF EMPLOYMENT28. Period of employment29. Termination of employment on notice30.

3 Payment instead of notice31. Automatic termination of contracts of employment32. Unfair dismissal33. Dismissal arising from redundancy34. Severance pay35. Transportation on termination of employment36. Payment on termination and certificates of employmentPART GDISPUTES CONCERNING THIS CHAPTER37. Disputes concerning this ChapterCHAPTER 4 HEALTH, SAFETY AND WELFARE OF EMPLOYEESPART ARIGHTS AND DUTIES OF EMPLOYERS AND EMPLOYEES38. Employer duties to employees39. Employer duties to persons other than employees40. Employee duties41. Employee s right to leave dangerous place of workPART BHEALTH AND SAFETY REPRESENTATIVES AND COMMITTEES42. Election of health and safety representatives43. Rights and powers of a health and safety representative44. Duties to provide information45. Health and safety committees46. Disputes concerning this Chapter4 CHAPTER 5 UNFAIR LABOUR PRACTICES47. Unfair disciplinary action48. Employee and trade union unfair LABOUR practices49. Employer and employers organisation unfair LABOUR practices50.

4 Disputes concerning this ChapterCHAPTER 6 TRADE UNIONS AND EMPLOYERS' ORGANISATIONSPART ATRADE UNIONS AND EMPLOYERS' ORGANISATIONS51. Definitions relating to this Chapter52. Constitutions of trade union or employers organisation53. Changing constitution of registered trade union or registered employers organisation54. Winding up of trade union or employers organisation55. Appeals from decision of LABOUR CommissionerPART BREGISTRATION OF TRADE UNIONS AND EMPLOYERS ORGANISATIONS56. Requirements for registration57. Effect of registration of trade union or employers organisation58. Rights of registered trade unions and registered employers organisations59. Obligations of registered trade unions and registered employers organisations60. Failure to comply with constitution or obligations under this Part61. Appeals from decision of LABOUR CommissionerPART CRECOGNITION AND ORGANISATIONAL RIGHTS OF REGISTEREDTRADE UNIONS62. Recognition as exclusive bargaining agent of employees63.

5 Trade union access to the premises of the employer64. Deduction of trade union dues65. Workplace union representatives66. Organisational rights in collective agreements67. Disputes concerning certain provisions of this ChapterPART DCOLLECTIVE AGREEMENTS68. Legal effect of collective agreements69. Extension of collective agreements to non-parties70. Exemptions from an extended collective agreement71. Disputes arising from application, interpretation or enforcement of collectiveagreement5 CHAPTER 7 STRIKES AND LOCKOUTS72. Right to strike or lockout73. Prohibition of certain strikes and lockouts74. Strikes and lockouts in compliance with this Chapter75. Designation of essential services76. Disputes in a designated essential service77. Urgent interdictsCHAPTER 8 PREVENTION AND RESOLUTION OF DISPUTESPART ADISPUTES AFFECTING THE NATIONAL INTEREST78. Disputes affecting the national interestPART BCONCILIATION OF DISPUTES79. Definitions80. Resolution of disputes through conciliation81.

6 Consequences of failing to attend conciliation meetingsPART CARBITRATION OF DISPUTES82. Definitions and application of the Arbitration Act, 196583. Resolving disputes by arbitration84. Effect of arbitration awards85. Variation and rescission of awards86. Appeals or reviews of arbitration awards87. Enforcement of awardsPART DPRIVATE ARBITRATION88. Private arbitrationCHAPTER 9 LABOUR INSTITUTIONSPART ALABOUR ADVISORY COUNCIL89. Continuation of LABOUR Advisory Council90. Functions of LABOUR Advisory Council91. Composition of LABOUR Advisory Council92. Terms of office and conditions of membership93. Removal of members and filling of vacancies94. Committees95. Meetings96. Administration of LABOUR Advisory Council6 PART BCOMMITTEE FOR DISPUTE PREVENTION AND RESOLUTION ANDESSENTIAL SERVICES COMMITTEE97. Functions of Committee for Dispute Prevention and Resolution98. Composition of Committee for Dispute Prevention and Resolution99. Terms of office and conditions of membership100.

7 Procedures of Committee for Dispute Prevention and Resolution101. Essential Services CommitteePART CWAGES COMMISSION102. Continuation of Wages Commission103. Functions of Commission104. Composition of Commission105. Terms of office of members of Commission106. Meetings of Commission107. Administration of Commission108. Terms of reference of Commission109. Powers of Commission110. Matters to be considered in investigation111. Reports of CommissionPART DLABOUR COURT112. Continuation and powers of LABOUR Court113. Composition of LABOUR Court114. Assignment of judges of LABOUR Court115. Jurisdiction of the LABOUR Court116. Costs117. Rules of LABOUR CourtPART ETHE LABOUR COMMISSIONER118. Appointment of LABOUR Commissioner and Deputy119. Powers and functions of the LABOUR Commissioner120. LABOUR Commissioner may delegate certain powers and functionsPART FLABOUR INSPECTORATE121. Interpretation122. Appointment of inspectors123. Powers of inspector124. Power to issue compliance order125.

8 Offences in relation to inspectorsCHAPTER 10 GENERAL PROVISIONS126. Employment Hire Services127. Service of documents7128. Records and returns129. Preservation of secrecy130. Liability for contravention of this Act by manager, agent or employee131. Evidence132. Limitation of liability133. Regulations134. Administration of regulations135. Guidelines and codes of good practice136. Contracts entered into by State for provision of goods and services137. Exemptions138. Delegation of powers139. Repeal of laws, transition and consequential amendments140. Short title and commencementSCHEDULETRANSITIONAL PROVISIONS1. Definitions2. General preservation of rights, duties, regulations, notices and other instruments3. Continuation of time4. Applications and notices concerning continuous work and overtime hours5. Applications and notices concerning Sunday or public holiday work6. Maternity Leave7. Remuneration deposited with Permanent Secretary8. Health and safety representatives9.

9 Registration of trade unions and employers organisations10. Collective bargaining11. Strikes, lock-outs and essential services12. Wages Commission, Wage orders and exemptions13. LABOUR Commissioner and LABOUR Inspectors14. LABOUR Advisory Council15. LABOUR Court16. Pending disputes17. References in other laws18. Resolution of other transitional matters8 PREAMBLETo give effect to the constitutional commitment to promote and maintain the welfareof the people of Namibia in Chapter 11 of the Constitution; andTo further a policy of LABOUR relations conducive to economic growth, stability andproductivity by -promoting an orderly system of free collective bargaining;improving wages and conditions of employment;advancing individuals who have been disadvantaged by past discriminatorylaws and practices; andregulating the conditions of employment of all employees in Namibia withoutdiscrimination on grounds of sex, race, colour, ethnic origin, religion, creed,or social or economic status, in particular -ensuring equality of opportunity and terms of employment, maternity leaveand job security for women.

10 Promoting sound LABOUR relations and fair employment practices byencouraging freedom of association, in particular, the formation of tradeunions to protect workers rights and interests and the formation of employers organisations;setting minimum basic conditions of service for all employees;ensuring the health, safety and welfare of employees at work;prohibiting, preventing and eliminating the abuse of child LABOUR ;prohibiting, preventing and eliminating forced LABOUR ;giving effect, if possible, to the conventions and recommendations of theInternational LABOUR Organisation;9 NOW THEREFORE BE IT ENACTED by the Parliament of the Republic of Namibia,as follows:CHAPTER 1 INTRODUCTORY PROVISIONSD efinitions and interpretation1.(1) In this Act, unless the context indicates otherwise - arbitrator means one or more persons appointed, in terms of this Act, to determine adispute or any other matter arising from the interpretation, implementation or applicationof this Act; basic wage means that part of an employee s remuneration, as calculated in terms ofsection 10, paid in respect of work done during the hours ordinarily worked but does notinclude -(a) allowances, whether or not based on the employee s basic wage;(b) pay for overtime, as defined in section 8(1);(c) additional pay for work on a Sunday or a public holiday; or(d) additional pay for night work, as required in terms of section 19(1); competent court means the LABOUR Court or any magistrates court established in termsof the Magistrates Courts Act, 1944, (Act No.)