In a historic first for Namibia the Minister of Labour and Social Welfare, Doreen Sioka, has declared certain services in the healthcare and local authorities sectors as 'essential services' whose employees cannot strike.
An essential service is defined in Section 1 of the Labour Act, 2007, as a service of which the interruption would endanger the life, personal safety or health of the whole or any part of the population of Namibia. "The significance of essential services can be understood within the context of the right to strike and to lockout. Strikes and lockouts are weapons of last resort, which can be used by workers and employers respectively, to apply economic pressure to their negotiating partner when their efforts to reach an agreement through collective bargaining have reached a deadlock," explained Sioka.
While the Labour Act guarantees the right of employees to strike and of employers to lock out workers, these actions have to be taken in accordance with the provisions of the Act. However, the law recognises exceptions to the right to strike and to lockouts.
Section 75 of the Labour Act prohibits strikes and lockouts over disputes between parties engaged in essential services.
Sioka elaborated that despite the need to protect important labour rights, it is important that the exercise of such rights should not be permitted to jeopardize the health, life or safety of any person.
"This is a principle that has been recognised in international jurisprudence developed by the International Labour Organisation and is accepted by governments, trade unions and employer organisations," she said. Services of economic or institutional importance do not fall within the ambit of 'essential services'. The minister's first designation of essential services was published in the Government Gazette on December 31, 2012 and came about as a result of tripartite cooperation between representatives of employers, workers and the state.
Present at yesterday's official announcement of essential services were John Kwedhi, secretary general of the Namibia Transport and Allied Workers Union and chairperson of the Essential Services Committee of the Labour Advisory Council, as well as Engelhardt Unaeb the chairperson of the Labour Advisory Council.
Section 77 of the Labour Act provides for the designation of essential services by the minister, upon the recommendation of the Labour Advisory Council, following an investigation and report of the Essential Services Committee, which is established as a standing committee of the Labour Advisory Council in terms of Section 97 of the Act.
Sioka emphasised that the designation of essential services does not in any way limit the rights of the affected employers and employees in terms of the Labour Act.
In addition, in accordance with Section 78 of the Labour Act employers and employees rendering designated essential services will have alternative avenues available to resolve disputes, should they reach a deadlock during collective bargaining. "If a deadlock is reached, either party has the right to refer the dispute to the Labour Commissioner for binding arbitration. This means that after hearing both sides the arbitrator will have the power to make a binding declaration of the terms of the parties' new collective agreement," she said.
Parties to a collective agreement are free to agree to exclude the right to strike or lockout in areas beyond the statutory definition of essential services. There are precedents for this already in the mining industry, where some of the collective agreements contain provisions prohibiting strikes in areas of vital importance to the preservation of mining structures or equipment.
The designation of 'essential services' can also be seen to curb the escalating number of illegal strikes that hit the Namibian economy during the last two years. One of these strikes was undertaken by the National Broadcaster, NBC, but Sioka and her deputy, Alpeus Muhehua, yesterday confirmed that no application has yet been received to designate the NBC as an essential service.
• The following have been classified as essential services:
- Ambulance Services
- Casualty Services
- Theatre Services
- Intensive Care Unit (ICU) Services
- Clinical/Cardiac Services
- Laboratory Services
- Pharmaceutical Services
- Dental Services
- Radiography Services
- Physiotherapy Services
- Mortuary Services
- Medical Services, including Specialist Services
- Hospital Kitchen Services
- Hospital Laundry Services
- Emergency Management Services
- Disaster Management Services
- Potable Water Services
- Waste Water Management Services
- Water Reclamation Services
- Scientific Services