Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

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

The Committee notes the observations of the International Trade Union Confederation (ITUC) received by the Office on 1 September 2021. The Committee requests the Government to provide its comments in this respect.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 109th Session, June 2021)

The Committee notes the detailed discussion which took place at the 109th Session of the Conference Committee on the Application of Standards (CAS) in June 2021 concerning the application of the Convention by Namibia. The Committee notes with interest that, following the CAS conclusions, an ILO Technical Advisory Mission was undertaken – virtually, due to the prevailing pandemic situation – from 14 September to 27 October 2021 to review the progress made and discuss a possible roadmap of future measures to be taken in consultation with the social partners. The Committee hopes that the road map will allow all the issues raised to be dealt with in a tripartite manner, setting deadlines for discussion. The Committee asks the Government to provide information on the outcome of this mission and its follow-up.

Article 1(1)(b) of the Convention. Prohibited grounds of discrimination: HIV status, disability and family responsibilities. Legislation. In its previous comments, the Committee requested the Government to take steps to ensure coherence between the general non-discrimination provision of the Labour Act (section 5) and section 33 of the Act which prohibits unfair dismissal, so as to prohibit dismissals on the grounds of HIV status, the degree of physical or mental disability, and family responsibilities. The Committee notes that, in its observation, ITUC recalls that, despite the Committee raising this issue for a number of years, the Labour Act still does not explicitly prohibit dismissal based on HIV status, physical or mental disability, or family responsibilities. The Committee notes that the Government indicates in its report that it will consult the tripartite Labour Advisory Council on a proposed amendment to add these three prohibited grounds of discrimination to section 33 of the Labour Act so as to ensure consistency with section 5, and will pursue the necessary steps to table the amendment before the National Assembly. In view of the above, the Committee asks the Government to provide information on the progress made in the adoption of the amendment to section 33 of the Labour Act so as to prohibit dismissals on the grounds of HIV status (actual or perceived), the degree of physical or mental disability, and family responsibilities.

Articles 2 and 5. Implementation of the national equality policy. The Committee recalls that the CAS, in its conclusions, requested the Government to: (1) provide detailed information on the concrete measures taken to implement the National Human Rights Action Plan (NHRAP) for the period 2015–19 and following and in particular the review of the legislative and regulatory framework, and report on the results achieved; and (2) report on the implementation of the recommendations of the Office of the Ombudsman's Special Report on Racism and Discrimination submitted to the National Assembly in October 2017, including with regard to the review of recruitment procedures, training to detect discrimination, and the establishment of procedures to deal with discrimination claims. The Committee recalls that the following actions were envisaged in the NHRAP: (1) a comprehensive review of the regulatory framework to assess its compliance with the principle of non-discrimination; (2) the development of a White Paper on Indigenous Peoples’ Rights; (3) research into comparable legal instruments protecting the rights of persons with disabilities and the development of benchmarks (i.e. building design standards); (4) 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); (5) 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 affirmative action criteria; and (6) the review of the current Racial Discrimination Prohibition Act (Act No. 26 of 1991) with a view to enacting new legislation against discrimination. The Committee notes the ITUC’s observations in this regard in which it: (1) notes that despite being designed to be delivered by 2019, the NHRAP has not led so far to concrete results; and (2) recalls that persons with disabilities are almost absent from the Namibian labour market. Regretting that the only action taken by the Government regarding the recommendations contained in the Special Report on Racism and Discrimination was to disseminate them to employers, the ITUC also calls for concrete and proactive action appropriate to national conditions and practice. The Committee notes the Government’s indication that the two key interventions in order to implement the NHRAP recommendations are: (1) research on current discriminatory practices in recruitment in the public service; and (2) a review of the Affirmative Action (Employment) Act. Furthermore, the Government indicates that the Ministry of Labour, Industrial Relations and Employment Creation (MLIREC) and the Office of the Ombudsman agreed to: (1) conduct thorough research in the public sector in order to establish the existence of discrimination in employment pertaining to racism, ethnicity and inequality; (2) design a research proposal on discrimination that would include the component of race and ethnicity; and (3) mobilize funds for these research projects. The Committee also notes that, in the information that it submitted to the CAS on 20 May 2021, the Government indicated that the Prohibition of Unfair Discrimination, Hate Speech and Harassment Bill, which repeals the Racial Discrimination Prohibition Act of 1991, has been circulated for comments and that a stakeholders’ consultative meeting was scheduled for 28 May 2021. Regarding specifically the recommendations contained in the Ombudsman's Special Report on Racism and Discrimination, the Government indicates that the measures it has identified to address these recommendations are as follows: (1) review the recruitment process in the public service; (2) introduce a code of good practice on the elimination of discrimination in employment; (3) disseminate information on the elimination of discrimination in employment; (4) train arbitrators to adjudicate cases of discrimination and labour inspectors to detect “victimization” in employment and occupation; and (5) train affirmative action reports review officers and ombudsman officials on the concepts of discrimination. The Committee notes the list of measures identified by the Government as necessary to implement the NHRAP and the recommendations contained in the Ombudsman’s Special Report on Racism and Discrimination. The Committee therefore asks the Government to provide detailed information on the progress achieved regarding: (i) the review of the recruitment process in the public service; (ii) the development and adoption of a code of good practice on the elimination of discrimination in employment in consultation with employers’ and workers’ organizations; (iii) the dissemination of information on the elimination of discrimination in employment; (iv) capacity building for judges, arbitrators, labour inspectors, affirmative action reports review officers and Ombudsman officials; and (v) the adoption of the Prohibition of Unfair Discrimination, Hate Speech and Harassment Bill.

Designated groups. Persons disadvantaged on the ground of race, women and persons with disabilities. Affirmative action. The Committee notes that, in its conclusions, the CAS requested the Government to: (1) report on the actions taken to promote access to employment and occupational training for groups disadvantaged because of race, gender or disability, pursuant to the Affirmative Action (Employment) Act, 1998; (2) report on the planned legislative review, including the final legislative changes to the Affirmative Action (Employment) Amendment Act 6 of 2007; (3) reinforce the mandate of the Employment Equity Commission (EEC) to deal with cases of discrimination, strengthen its capacity and clarify how its decisions affect the employers’ filling of certain job positions; and (4) report on the reform to the New Equitable Economic Empowerment Framework Bill 2015. In its observations, the ITUC noted that the Government reported a number of planned affirmative action measures but did not indicate the results expected through these initiatives, such as, for example, setting specific targets on improving the representativity of different groups in workplaces. ITUC considers that the Government must step up its efforts to implement effectively its national equality policy. The Committee notes the Government’s statement that section 17(3)(a) and (b) of the Affirmative Action (Employment) Act – which empowers the EEC to determine whether a designated group is equitably represented in the various positions of employment offered by a “relevant employer” – is the legislative framework on which the EEC relies regarding the issue of access to training and employment opportunities for designated groups. Regarding the amendments to this Act, the Government, in the information it submitted to the CAS in May 2021, indicated that the final draft amendment Act, including the inputs provided by the Labour Advisory Council, was submitted to the Employment Equity Commissioner on 11 May 2021 and that the EEC was now conducting a desk review with a view to align it with international law and best practices on several issues. As regards the definition of “relevant employer”, the EEC is of the view that it is time to reduce the threshold (which stands since 2007 at 25 or more employees) in order to cover more employers (and employees). The Committee takes note of the Government’s undertaking to share the final legislative changes with the ILO before they are adopted into law. The Committee also notes the pamphlet annexed to the Government’s report issued by the Division of Marginalized Communities of the Ministry of Gender Equality, Poverty Eradication and Social Welfare and refers, in that regard, to the direct request it addresses to the Government on this issue under the Convention. The Committee asks the Government to continue to provide information on: (i) the actions taken to promote access to employment and occupational training for designated groups and the measures put in place in order to review regularly the affirmative action measures to assess their relevance and impact; (ii) the progress made towards the revision of the Affirmative Action (Employment) Act 1998, amended in 2007; and (iii) any measure taken to reinforce the mandate of the EEC to deal with cases of discrimination.

The Committee refers to the CAS request to the Government to report on the adoption of 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. In this respect, the Committee notes that the Government, in the information it submitted to the CAS in May 2021, indicated that the draft bill was “almost ready for Cabinet consideration before it is tabled in the National Assembly in the third or fourth quarter of the 2021–22 financial year”. However, it notes that, in its report, the Government declares that it is premature to report on the Bill as there is no consensus with stakeholders. The Committee takes note of this information.

Enforcement. The Committee notes that, in its conclusions, the CAS asked the Government: (1) to adopt specific measures to ensure that workers who are victims of discrimination on the basis of any of the prohibited grounds have effective access to legal remedies; and (2) to provide information on the number of cases of discrimination dealt with by labour courts and on their outcome. In this regard, the Committee takes note of ITUC’s concerns vis à vis the shortcomings of the labour inspections and labour courts and of its view that the absence of cases of discrimination based on HIV status (actual or perceived) is an indication of significant barriers to a remedy for victims, lack of awareness of rights and fear of retaliation. The Committee notes the Government’s statement that the following measures are envisaged to make remedies more accessible: (1) carrying a desktop research on how other countries ensure effective access to legal remedies; (2) enacting regulations requiring employers to display information at the workplace informing employees of available legal remedies for discrimination and how to access them; (3) disseminating information to members of the public and specific stakeholders on rights and remedies regarding discrimination; (4) designing electronic pamphlets on referral of discrimination disputes, to be displayed on a wide range of platforms; and (5) airing radio announcements in different languages. Regarding the number of cases of discrimination, the Government indicates that, in the last three years there were six cases recorded by the Office of the Labour Commissioner and none registered by the courts. The Committee asks the Government to provide information on: (i) the progress made towards the adoption and implementation of the measures enumerated by the Government to make remedies more accessible for victims of discrimination on the basis of any of the prohibited grounds; and (ii) cases of discrimination dealt with by labour courts, if any, and their outcome.

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