GOVERNMENT will not allow the labour-hire system to continue to exist in Namibia in its current form, the Minister of Labour and Social Welfare, Immanuel Ngatjizeko, vowed yesterday.

Ngatjizeko made the promise when he addressed a press conference in Windhoek on the Supreme Court judgement in which Namibia's highest court ruled on Monday that section 128 of the Labour Act of 2007, through which the labour-hire system in Namibia had been banned, was unconstitutional.

Government does not agree with the Supreme Court's decision, but it nevertheless respects the court's authority, Ngatjizeko said.

"The Supreme Court has spoken," he said. "As a nation built on the rule of law, the Namibian Government respects the final authority of the Supreme Court to interpret the Namibian Constitution. However, Government would be remiss if it did not exercise its constitutional right to voice its disagreement with the court's judgement."

He said Government was disappointed with the Supreme Court's ruling, in which five judges of the court unanimously found that the outright ban of the labour hire system was in conflict with the Constitution's protection of the right to practise any profession and to carry on any occupation, trade or business.

"It is ironic that a provision of the Namibia Constitution that was intended to eradicate apartheid practices that subjected black workers to the injustice and humiliation of job reservation, influx control and the like has now been interpreted to turn a blind eye to commercial arrangements for the rental of human labour in order to avoid the protections afforded to workers by the labour laws," Ngatjizeko commented.

One of the grounds for the court's decision was a finding by the five judges that the current labour hire system, which exists in a democratic Namibia where the Constitution provides protection for the human rights of everyone, is distinguishable from the notorious contract labour system that was one of the defining characteristics of the apartheid era in pre-Independence Namibia.

Ngatjizeko said Government had to "respectfully disagree" with this opinion of the Supreme Court as well.

"Although this may appear to be a valid theoretical distinction, the reality of the Namibian labour market demonstrates otherwise," he said.

EXPLOITATION

He charged that in the current labour hire system in Namibia - in which labour hire companies employ people who are then provided to clients of the companies to perform work for the clients, who in turn do not pay the workers directly but pay the labour hire companies for the employees' services - exploitation in various forms is still a daily reality.

Employees have no choice of their actual employer or place of work, Ngatjizeko said. He charged employees are referred to as "bodies", with identification numbers, rather than by their names, by those who use their labour.

Sick leave, maternity leave and vacation are denied to labour hire employees under the principle of "no work no pay", Ngatjizeko added.

He charged that employees may also be dismissed at will without legal protection, regardless of how long they have worked for a particular client company, and that employers may ignore the Labour Act's protections for retrenched employees.

Ngatjizeko further charged that labour hire companies and client companies can agree to exclude trade unions from having access to employees at their work place.

"Today's labour hire is notorious for its low pay, employment insecurity and the absence of minimum conditions of employment and health and safety protections," Ngatjizeko said.

Labour hire and the former apartheid-era contract labour system in Namibia are similar in that both "ensure a cheap labour supply to employers unfettered by labour protections or workers' rights," Ngatjizeko said.

Using the South West Africa Native Labour Association (Swanla), which as a labour recruitment and placement agency played a key role in the contract labour system, as an example, Ngatjizeko said: "We are aware that, just as was the case in the days of Swanla, unemployed persons in Namibia take up employment today with labour hire companies because most have few or no other options for gainful employment. It is therefore obvious that labour hire employees are among the most vulnerable workers in our country and that they require protection by the organs of the State."

NEW LAW

While the Supreme Court ruled that section 128 of the Labour Act in its current form does not conform to the requirements of the Constitution, the court did not preclude Government from enacting a new law to address the problems of labour hire, Ngatjizeko noted.

The Labour Ministry will not allow the court's judgement "to divert it from its duty to protect the most marginalised and vulnerable workers in our country," Ngatjizeko said.

The Ministry will, after studying the court's judgement in the fullest detail, prepare legislation "that will put an end to the practice of labour hire as we know it today, in accordance with constitutional requirements, and will create a strong administrative framework to enforce such legislation," Ngatjizeko undertook.

The Ministry will still have to decide whether it will target the labour hire system through regulation or through legislation, he said.

Regardless of what route it chooses to follow, it will be taking measures "to ensure that those who continue to disobey the law are taken to task", Ngatjizeko said.

He stated: "Government will not allow labour hire to continue in its current form."

The Secretary General of the Namibia Employers' Federation, Tim Parkhouse, reacted to the court's ruling earlier this week by saying that it would add to Namibia's attraction as an investment destination. He also emphasised that the NEF supported the regulation and control of the labour hire industry, which he said was critical in modern day business.

While it welcomed the court's ruling, the NEF does not approve of the abuse of workers' rights, and is of the opinion that labour inspectors can play an important role in protecting these rights, Parkhouse said.