Denver Isaacs
25 November 2008
Debate around the controversial practice of labour hire yesterday moved to the High Court in Windhoek, where the biggest labour-hire company in the country made good on its promise to challenge the new Labour Act.
Africa Personnel Services (APS), which has been at the centre of the heated debate about labour hire, yesterday challenged the constitutionality of the new law, saying that it restricts its fundamental right to "practise any profession, carry on any occupation, trade or business".
But while the company came prepared for business, so did a number of protesters who filled the courtroom, shouting "Down APS" and "Stop Sell-Outs".
The protesters were accompanied by various trade union leaders who sat in for the duration of the day-long proceedings.
Advocate Dave Smuts handled the case for APS, making a case for the company's position representing about two-thirds of the labour-hire industry.
The company employs around 6 600 workers out of a sector of approximately 10 000, making it one of the largest employers in the labour-hire industry.
Smuts described the company as one that strictly abides by good labour practices, and one that is simply following a global trend towards greater flexibility in employer-employee relationships, which he argued came about as a result of over-regulation and an inflexible labour market.
The company also argues that, as it is written, the clause in the Labour Act which bans labour hire can also be interpreted as banning other companies dealing with outsourcing, including cleaning agencies and security companies.
Government's counsel, Matthew Chaskalson, however argued that what APS and others like it are in fact doing is reducing human labour to a commodity.
APS was criticised for advertising openly to clients that it could remove the risk and burden of labour hassles, in effect allowing both the labour-hire company and the client company to evade responsibility for their employees.
Labour hire, the three reviewing judges heard, leaves the individual workers subject to abuse at the hands of their employer and the client company.
For example, if a company doesn't like a person sent to them, it can simply call and have that worker replaced.
The relevant clause of the Labour Act states that "no person may, for reward, employ any person with a view to making that person available to a third party to perform work for the third party".
Contravention of this section could cost the culprit up to N$80 000, a prison sentence of five years, or both.
APS once again found itself compared to exploitative examples of contract labour such as the South West African Native Labour Association.
"We're dealing here with a society with a particular history.
Symbolic resemblance is something to be taken seriously by legislators," Chaskalson said to criticism of the comparison.
He further argued that, although APS considers itself an outstanding example of the practice of labour hire, Government was expected to make laws based on the norms of the industry, which APS itself has often criticised.
The case is being heard by Judges Collins Parker and Nate Ndauendapo and Acting Judge Johan Swanepoel.
The APS case is one of at least two challenges of the Labour Act.
The Public Service Union of Namibia (PSUN) yesterday confirmed that it was set to challenge a clause in the act which bans prison service workers from forming or joining trade unions.
PSUN Deputy Secretary General Manfred Jutamunua confirmed yesterday that a weekend meeting between the union's national executive committee and council resolved to take their case to the High Court and were waiting for a legal opinion on the decision.
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