Observation (CEACR) - adopted 2018, published 108th ILC session (2019)

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Namibia (Ratification: 2001)

Article 1(1)(b) of the Convention. Additional grounds. Legislation. The Committee recalls its previous comments in which it noted that while the general non-discrimination provision of the Labour Act (section 5) includes the grounds of HIV and AIDS, degree of mental disability and family responsibilities, these grounds are not included under section 33 of the Act which prohibits unfair dismissal. The Committee notes the Government’s indication that a task force comprising representatives of workers, employers and the Government was set up and is reviewing the Labour Act section by section. The Government adds that the request from the Committee to consider including specific provisions prohibiting dismissal based on the grounds of HIV and AIDS status, the degree of physical or mental disability and family responsibilities with a view to ensuring consistency between sections 5 and 33 of the Labour Act, will be taken into consideration during this process. The Committee hopes that, further to the review process of the Act, the Government will amend the Labour Act so as to extend the prohibition on dismissal to ensure that dismissal on the grounds of HIV and AIDS status, the degree of physical or mental disability and family responsibilities is prohibited and therefore introduce consistency between sections 5 and 33 of the Labour Act. Recalling that section 6.2(2)(iii) of the 2007 National Policy on HIV and AIDS prohibits termination of employment on the grounds of HIV status or family responsibilities relating to HIV/AIDS, the Committee asks the Government to provide information on any case of a violation dealt with by labour inspectors and labour courts.

Articles 2 and 5. Implementation of the equality national policy and affirmative action. The Committee notes with interest the adoption of the National Human Rights Action Plan (NHRAP) 2015–19 which identifies as one of the main areas of focus “the right not to be discriminated against”, in particular with respect to certain groups including women, indigenous peoples, persons with disabilities and LGBTI persons. The Committee notes that the following actions are envisaged: (i) a comprehensive review of the regulatory framework to assess non-discrimination compliance; (ii) the development of a White Paper on Indigenous Peoples’ Rights; (iii) research of comparable legal instruments providing protection of the rights of persons with disabilities and developing benchmarks (i.e. building design standards); (iv) research and review of laws and policies to identify and rectify provisions that discriminate against “vulnerable groups” (i.e. women, children, elderly persons, sexual minorities, persons with disabilities and indigenous peoples); (v) the review of the Affirmative Action (Employment) Act (Act No. 29 of 1998) with a view to establishing the continued relevance of race as part of the affirmative action criteria; and (vi) the review of the current Racial Discrimination Prohibition Act (Act No. 26 of 1991) with a view to enacting new legislation against discrimination. In this regard, the Committee welcomes the publication by the Office of the Ombudsman of the Special Report on Racism and Discrimination that gives a full picture of the situation in the country, including in education and employment, and makes specific and detailed recommendations to the Government and the employers’ organizations to address all forms of discrimination in the country. Those recommendations include: (i) for the Government: to raise awareness among employers and employees of the prohibition of discrimination in employment and the remedies for victims; to develop and disseminate programmes and strategies to eliminate discrimination in employment; to provide support to victims; and to resolve speedily disputes relating to discrimination; and (ii) for employers’ organizations: to ensure that recruitment procedures, including job advertisements, are free from bias; to review qualifications and experience requirements to ensure their relevance for the job; to train senior and middle management to detect manifestations of discrimination in the workplace; to cooperate with workers’ organizations and representatives to develop procedures to deal with racial discrimination and other forms of discrimination, including sexual harassment; and to take steps to broaden the pool of candidates for jobs among “previously disadvantaged groups”. The Committee asks the Government to provide information on the implementation of the NHRAP (2015–19) regarding equality and non-discrimination issues, in particular with respect to any legislative developments and the adoption of practical measures such as awareness-raising campaigns for mutual tolerance and respect and appropriate training, and to communicate copies of any implementation or assessment reports available. The Committee also asks the Government to provide information on any measures taken or envisaged to implement the recommendations made by the Ombudsman in its report in the fields of education, training and employment, as well as information, where available, on any steps taken by employers’ organizations in this regard.

With respect to the implementation of the Affirmative Action (Employment) Act (Act No. 29 of 1998) to address the under-representation of persons within “designated groups” (i.e. “racially disadvantaged persons”, women, persons with disabilities), the Committee notes from the Government’s report containing data for the periods 2013–14 and 2014–15 and the Employment Equity Commission’s (EEC) Annual Report 2015–16, that there had been a 10 per cent increase in the number of reports received from relevant employers (that is, employers with 25 employees or more), totalling 763 for 2015–16. The number of employees covered by the affirmative action reports also increased by 18 per cent (199,126 employees across all industrial sectors for 2015–16). The Committee notes that, according to the EEC Report 2015–16, although the previous racially disadvantaged employees constituted 93 per cent of the total number of employees covered by the employers’ reports, only 28 per cent of them occupied positions at the executive director level (compared to 58 per cent occupied by “whites”). According to the same EEC Report, however, they improved their representation at the management level from 56 per cent in 2014–15 to 66 per cent in 2015–16. The EEC Report adds that for 2015–16, women represented only 44 per cent of employees at managerial positions (compared to 39 per cent for 2014–15), and persons with disabilities accounted for 0.4 per cent of the workforce. The Committee further notes from the Government’s report that the EEC pressed charges against a number of employers who failed to comply with the Affirmative Action Plan and 53 were convicted during 2014–15. In this regard, the Committee welcomes the Government’s indication that the assignment of a police officer to the EEC had a positive impact on the speedy and timely prosecution of the offenders. The Committee also notes the New Equitable Economic Empowerment Framework Bill 2015 which aims to promote the achievement of the constitutional right to equality and to bring about socio-economic transformation in order to enhance equity, social justice and empowerment of the previously disadvantaged majority, and to promote a higher economic growth rate, increased employment and more equitable income distribution. Noting the EEC Report’s conclusion that “the pace of progress towards an equitable representation [of persons from designated groups] is regrettably slow”, in particular at the upper levels of management and therefore at higher remuneration levels and noting too the under-representation of persons with disabilities at all occupational levels, the Committee asks the Government to step up its efforts to promote access to training and employment opportunities for designated groups, in particular at the managerial level and above, and to continue to review regularly the affirmative action measures to assess their relevance and impact. The Government is asked to provide information on any measures taken to this end and any legislative developments regarding the New Equitable Economic Empowerment Framework Bill 2015.

The Committee is raising other matters in a request addressed directly to the Government.