Trade Unions

Freedom to Join and Form a Union

The Constitution of Namibia states that there is a fundamental right to freedom of association, which includes the freedom to form and join associations or unions, including trade unions or political parties.

A domestic worker has the right to associate with a trade union. Employers should not deny access to the premises for trade union-related activities as prescribed in the Labour Act. An employer cannot discriminate against an employee or an individual seeking employment because of a past, present or anticipated membership in a trade union, or participation in the lawful activities of a trade union outside of ordinary working hours or during working hours with the permission of the employer.

Sources: §21(1)(e) of the Constitution of Namibia and §6 & 65 of the labour Act, 2007; §11 Wage order for setting minimum wage and supplemental minimum conditions of employment for domestic workers: Labour Act, 2007 (Government Notice No. 258 of 2017)

Freedom of Collective Bargaining

Under the Labour Code, 2007, a registered trade union which represents the majority of the employees in an appropriate bargaining unit is entitled to be recognized as its exclusive bargaining agent to negotiate a collective agreement on any matter of mutual interest.

To be recognised as an exclusive bargaining agent, the registered trade union must ask the employer or the employers’ organisation to recognise it as the exclusive bargaining agent. The trade union will then submit to the labour commissioner a copy of its request for recognition to the employer or the employers’ organisation, proof that the request has been served to the employer and proof that the trade union represents the majority of the employees within the bargaining unit. Within 30 days of the request, the employer or the employers’ organisation must inform the trade union that it has been recognised as an exclusive bargaining agent.

Where the trade union is not recognized, the trade union may then refer the dispute to the labour commissioner. The labour commissioner must then refer the dispute to the arbitrator. If the arbitrator is satisfied that the trade union represents the majority of the workforce in the bargaining unit, then the arbitrator can make an order recognising the trade union as the exclusive bargaining unit.

The Labour Advisory Council is to investigate and inform the Minister of Labour of matters such as collective bargaining, national policy concerning basic conditions of employment, as well as health and safety at work, the prevention and reduction of employment, issues arising from the International Labour Organisation, etc.

Sources: §64 & 93 of the Labour Code, 2007

Right to Strike

Employees have a right to strike where the dispute has already been referred to the labour Commissioner for conciliation, where the employees’ representatives have attended the conciliation meetings, and even then, the dispute remains unresolved at the end of 30 days of the referral. The period may be shorter or longer, either because of non-attendance by the employers’ representatives or employees’ representatives, respectively.

After the end of the applicable period, the employees have to give 48 hours’ notice of the strike to the labour commissioner and other parties to the dispute. The strike has to conform to any agreed-upon rules regulating the conduct of the strike or any rules determined by the conciliator.

A person cannot participate in a strike if the dispute is referred for arbitration or adjudication, or where the dispute concerns an essential service. The Essential Services Committee must recommend to the labour Advisory Council the essential services where the interruption to the service would endanger the life, personal safety or health of the population. The Labour Advisory Council, after considering the report of the Essential Services Committee, has to forward its recommendation to the Minister of Labour. Upon consideration, the Minister can decide to designate a particular service as an essential service and have the notice of its designation be published in the Gazette.

Hiring of replacement workers in place of the striking workers is prohibited under the Labour Act.

Sources: §74-77 of the Labour Act, 2007