Violence and Harassment Convention, 2019 (No. 190) - Namibia (RATIFICATION: 2020)

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The Committee notes the Government’s first report. It wishes to recall that the Convention has a broad scope of application and aims to protect all persons referred to in its Article 2, and not only women, against violence and harassment in the world of work.

General. Legislative and other developments. The Committee welcomes the “Rapid Assessment” that was conducted between June and September 2019 regarding violence and harassment in the world of work in Namibia, which concludes that such occurrences remain largely unreported, unresolved and unpunished because: (1) it is not always clear what is and what is not acceptable; (2) victims fear retaliation, including losing their job, victimization or not being believed; (3) there is a general acceptance of power inequalities and belief that dynamics cannot be changed or challenged; and (4) there seems to be a general attitude of shifting blame to female victims in cases of sexual harassment, and victims may experience a misplaced sense of shame. The Study also concludes that the Labour Act is not explicit and comprehensive with regards to violence and harassment in the world of work and that reporting structures, including preventive mechanisms, and procedures are unclear and inefficient.

The Committee notes that the Labour Act (Act No. 11 of 2007) does not contain specific provisions to prevent, address and eliminate violence and harassment in the world of work, except for sexual harassment (section 5(7)(b)). However, it notes with interest the Government’s indication in its report that : (1) the Ministry of Labour, Industrial Relations and Employment Creation, together with workers’ and employers’ organizations are in the process of amending the Labour Act to include a new section on “Prohibition of Violence and Harassment” under Chapter 2 on Fundamental Rights and to supplement other provisions; (2) a Tripartite Working Group was established for that purpose and to assist in the implementation of the Convention; (3) the proposed amendments will be tabled at the Tripartite Labour Advisory Council and approved before they are taken through the law reform process; and (4) it envisaged to draft a national referral policy as well as a standard operating procedural framework and tools such as guidelines, codes of good practices and human resources policies. Regarding the proposed amendments to the Labour Act communicated by the Government in its report, the Committee welcomes the fact that some of them reproduce the provisions of the Convention, namely the definition of violence and harassment and gender-based violence and harassment (Articles 1, 4(2)(a) and 7), the personal scope and the world of work (Articles 2 and 3) and the right to a world of work free from violence and harassment and to effective protection from violence and harassment (Article 4(1)).

Articles 1, 4(2)(a) and 7 of the Convention. Defining and prohibiting violence and harassment and gender-based violence and harassment. Additional definition. 1. Bullying. In addition to the proposed amendments to the Labour Act providing for definitions of violence and harassment and gender-based violence and harassment that are in line with the Convention, the Committee welcomes the proposed insertion in the Act of a separate definition of “bullying” as a form of violence and harassment. Noting however that the proposed amendments transmitted by the Government do not contain an explicit prohibition of all forms of violence and harassment, the Committee hopes that the new provisions will clearly and explicitly not only define but also prohibit violence and harassment, including bullying, and gender-based violence and harassment in the world of work.

2. Sexual harassment. Referring to its comments under the Discrimination (Employment and Occupation) Convention (No. 111), 1958, adopted in 2021, the Committee notes that: (1) the definition and prohibition of “sexual harassment” in sections 5(7)(b) and 5(8) the Labour Act do not explicitly cover both quid pro and hostile work environment sexual harassment; and (2) it was envisaged by the Government to amend these provisions to include an explicit reference to hostile work environment. With reference to its comments under Convention No. 111, the Committee requests the Government to: (i) take the necessary measures to ensure that, on the occasion of its forthcoming revision, the Labour Act will include a clear definition of sexual harassment covering all its forms; and (ii) provide information on any measures taken to that end as well as the number and outcome of cases of sexual harassment dealt with by the labour inspectors, and the Office of the Labour Commissioner

Article 4(2) and (3). Inclusive, integrated and gender-responsive approach. The Committee recalls that: (1) “inclusive” refers to the need to have a broad scope of protection and ensure consultations to address all the different needs and realities; (2) “integrated” refers to the need to address violence and harassment in various areas other than labour law, such as occupational safety and health, equality and non-discrimination and criminal law ; and (3) “genderresponsive” refers to the need to take into account and address the root causes of gender-based violence and harassment, including gender stereotypes. With a view to ensuring a broad and effective prevention of, and protection against, all forms of violence and harassment, the Committee requests the Government to ensure that an inclusive, integrated and gender-responsive approach is adopted, in consultation with representative employers’ and workers’ organizations.

Article 6. Equality and non-discrimination. The Committee observes that the Constitution and the Labour Act (section 5) include non-discrimination and equality provisions to which the Committee refers in its last comments under Convention No. 111.

Article 8(a) and (c). Informal economy workers. Role of public authorities. The Committee notes the explicit reference to “the right to dignity of informal economy operators” in the Code of Conduct for the Namibian Informal Economy published in July 2021 (Principle 2). It further notes the Government’s indications that: (1) a proposed amendment provides for the protection against violence and harassment to all persons in the world of work, including in the informal economy; (2) it is envisaged to train the informal economy operators to know their rights as provided for in the Convention and be able to collaborate with the law enforcement officers and local authorities’ officials; and (3) it is also envisaged to train and empower the local authorities and the police to understand and respect the rights of informal economy operators and workers and to ensure that they are not subject to violence and harassment. In light of the above, the Committee requests the Government to provide information on: (i) any legal or practical measures adopted to protect informal economy workers from violence and harassment; and (ii) the number and outcome of cases of violence and harassment against informal workers that have been brought to the attention of the competent authorities.

Article 8(b) and (c). Prevention. Sectors, occupations or arrangements in which workers and other persons are more exposed to violence and harassment. The Committee notes that, according to a proposed amendment to the Labour Act (section 135(1)), the Minister may make regulations in relation to measures to prevent and eliminate violence and harassment and to protect and compensate the victims. It also notes that the Government indicates that the sectors or occupations and work arrangements in which workers and other persons concerned are more exposed to violence and harassment have not been identified yet. The Committee requests the Government to take steps to identify and provide information on the specific sectors, occupations, and work arrangements, where, in consultation with the workers’ and employers’ organizations concerned, a higher incidence of violence and harassment has been identified. It also requests the Government to indicate the prevention and protection measures taken in this regard.

Article 9. Responsibilities of employers. 1. General. The Committee notes that, although it does not contain specific provisions on violence and harassment, the Labour Act provides for a general duty of the employer to protect the safety and health of workers. Sections 39 and 40 of the Labour Act require the employer : (1) to provide a safe working environment, the necessary information, training, instructions and supervision to work safely and without risk to the health of employees; and (2) to conduct its business operations on its premises in a manner that, as far as is reasonably practicable, persons who are not employees are not exposed to risks for their safety or health.

2. Workplace policy. The Committee notes the Government’s indication that the proposed amendments to the Labour Act will: (1) place a duty on the employer to adopt and publicise, in consultation with a recognised trade union or if no trade union has been recognised, with workers a gender responsive policy to prevent and prohibit violence and harassment arising out of its operation.; (2) require employer's workplace policy to include the following: an assessment of the potential risk of violence and harassment that could arise from its operations; measures, including a Code of Conduct, to prevent violence and harassment in its operations and to address its impact on its employees and all persons working in its operation, regardless of contractual status; an effective mechanism and procedures for reporting violence and harassment, which includes measures to protect complainants, victims, witnesses an whistle-blowers against victimization or retaliation; a disciplinary code providing appropriate sanctions for persons within the control of the employer who engage in violence or harassment; and measures to mitigate the impact of domestic violence. Welcoming this information, the Committee hopes that these amendments to the Labour Act will be adopted soon with a view to requiring employers to adopt and implement, in consultation with workers and their representatives, a comprehensive workplace policy to prevent and address violence and harassment, including gender-based violence. It asks the Government to provide information on the development of any model workplace policy.

3. Occupational safety and health management, including in relation to identification of hazards and assessment of risks of violence and harassment. The Committee notes that the Occupational Safety and Health Regulations, 1997, require the employer to investigate and identify the hazards attached to any work that is performed or may be performed by any of his or her employees, including the risks or potential risks to the health and safety of employees associated with such work, or to the health and safety of any other person who may be affected by such work, and to assess such hazards and risks. The Committee requests the Government to provide information on any laws and regulations adopted to require employers to take steps to: (i) identify hazards and assess the risks of violence and harassment, with the participation of workers and their representatives; (ii) prevent and control them; and (iii) provide to workers and other persons concerned information and training in this regard, in accessible formats where appropriate.

Article 10(a) and (h). Monitoring and law enforcement. Labour inspection. The Committee notes that, pursuant to section 126 of the Labour Act, “an inspector who has reasonable grounds to believe that an employer has not complied with a provision of this Act may issue a compliance order in the prescribed form”. It notes however that, according the “rapid assessment report” of 2019, when filing a complaint with the labour inspector or the Office of the Labour Commissioner, “violence and/or harassment” is not one of the options on the form under “Nature of Dispute”. The Committee requests the Government to provide information on the manner in which the application of legal provisions on violence and harassment is or will be effectively monitored and enforced. It also requests the Government to clarify whether and how section 126 of the Labour Act applies to cases of violence and harassment and empowers labour inspectors to deal with these cases and issue compliance orders.

Article 10(b) and (e). Easy access to safe, fair and effective reporting and dispute resolution mechanisms and procedures. Support to victims. The Committee notes from the Government’s report that the Labour Act provides for dispute resolution mechanisms at the Labour Commissioner (section 86) and for the Labour Court to adjudicate on fundamental rights disputes (sections 7(5)). The Committee requests the Government to indicate in detail how a complainant or a victim of any forms of violence and harassment in the world of work, including gender-based violence and harassment (including sexual harassment), can currently in law and in practice: (i) report and prove such occurrence; and (ii) obtain redress, including protection against reprisals, appropriate remedies and legal, social, medical and administrative support. It also requests the Government to provide specific information on the measures envisaged to ensure easy access to appropriate and effective remedies and safe, fair and effective reporting as well as dispute resolution mechanisms and procedures in cases of violence and harassment in the world of work.

1. Courts. The Committee notes from the national report to the United Nations Committee on the Elimination of Discrimination against Women (CEDAW), that special courts for gender-based violence offenses were established countrywide (CEDAW/C/NAM/RQ/6, 25 February 2022, paragraph 17). The Committee requests the Government to indicate whether the gender-based violence courts are empowered to examine cases of gender-based violence and harassment in the world of work and, if so, to provide information on the number, nature and outcome of any cases examined. It also requests the Government to specify any other remedies that exist in case of gender-based violence and harassment in the world of work.

2. Protection against victimization of or retaliation against complainants, victims, witnesses and whistle-blowers. The Committee takes note of the Witness Protection Act (Act No.11 of 2017) and the Whistleblower Protection Act (Act No. 10 of 2017). The Committee requests the Government to indicate whether and, if so, how these two acts protect witnesses or whistleblowers in all cases of violence and harassment, including gender-based violence and harassment, in the world of work.

Article 10(c). Protection of privacy and confidentiality.The Committee requests the Government to provide information on any measures taken, to the extent possible and as appropriate, to protect the privacy of the individuals involved in cases of violence and harassment in the world of work, and to prevent the misuse of privacy and confidentiality requirements.

Article 10(d). Sanctions. The Committee notes the Government’s indication that a proposed amendment to section 86(15) concerning dispute resolution through arbitration empowers the arbitrator to issue an award including damages, as well as remedies to end, prevent, eliminate or mitigate the impact of violence and harassment. The Committee hopes that the amendment will be soon adopted and requests the Government to provide information on any other sanctions applicable to cases of violence and harassment in the world of work.

Article 10(f) Domestic violence. The Committee notes that, pursuant to the Combating of Domestic Violence Act (Act No. 4 of 2003), a protection order can include a “no-contact” provision forbidding the respondent to be at or near the workplace. It further notes the Government’s indication that a proposed amendment to the Labour Act provides that the workplace policy should include measures to mitigate the impact of domestic violence on its operation and particularly on employees or other persons protected by the Act. The Committee hopes that the proposed amendments will be adopted soon and requests the Government to provide information on any other measures taken to recognize the effects of domestic violence and, so far as is reasonably practicable, mitigate its impact in the world of work.

Article 10(g). Right to remove oneself from a work situation and the duty to inform management. The Committee notes that section 42 of the Labour Act provides for the employee’s right to leave a dangerous place of work and welcomes the proposed amendment according to which “this section would apply to cases of violence and harassment”. The Committee hopes that the proposed amendment will be adopted soon and requests the Government to provide information on the implementation of this requirement of the Convention.

Article 11(a). Addressing violence and harassment in relevant policies. The Committee recalls that each Member, in consultation with representative employers’ and workers’ organizations, shall seek to ensure that violence and harassment in the world of work is addressed in relevant national policies, such as those concerning occupational safety and health, equality and non-discrimination, and migration. In this regard, it wishes to emphasize the importance of ensuring that the relevant provisions, whether they are set out in labour, occupational safety and health, equality or criminal laws or the various action plans, such as the National Plan of Action on Gender Based Violence (2019–23), read jointly, prevent and address all forms of violence and harassment in the world of work and are well-articulated and harmonized.

Article 11(b) and (c). Training tools and guidance, and awareness-raising campaigns. With respect to training, the Committee welcomes the Government’s indication that: (1) 15 master trainers (7 women and 8 men) from the workers, the employers and the government were trained, and training manuals are being developed; (2) in 2022, master trainers commenced with the training of 200 change agents who will be required to train workers at their workplace countrywide; and (3) various awareness-raising activities were conducted. The Committee requests the Government to continue to provide information on the training tools and guidance developed, and any awareness-raising campaigns conducted at the national and local levels as well as training activities organized at the workplace on violence and harassment in the world of work, including data on the participation of men and women in such initiatives, and the criteria adopted to ensure they are provided in an accessible format.