Observation (CEACR) - adoptée 2007, publiée 97ème session CIT (2008)

1. Articles 1 and 2 of the Convention. Legislative developments. The Committee notes that section 5 of the Labour Act (No. 15 of 2004), which replaces the 1992 Labour Act, contains detailed provisions on equality of opportunity and treatment. The 2004 Act prohibits discrimination in any employment practice, directly or indirectly, against any individual on one or more of the following grounds: race, colour, ethnic origin, marital status or family responsibilities, religion, creed or political opinion, social or economic status, degree of physical or mental disability, AIDS or HIV status, and previous, current or future pregnancy (section 5(2)). “Employment practice” is broadly defined in section (1)(b) to cover all aspects of employment and occupation in accordance with Article 1(3) of the Convention. The Committee notes with satisfaction that the new legislation explicitly prohibits indirect discrimination and defines and prohibits sexual harassment (section 5(4)–(5)), as recommended by the Committee in its previous comments. In addition, the Committee notes that section 7 of the Labour Act 2004 provides that disputes concerning the application or interpretation of section 5 may be referred to the Labour Commissioner who may appoint a conciliator to attempt to resolve the dispute. If the dispute remains unresolved, an arbitrator is to be appointed. Persons who consider that their fundamental rights under section 5 have been infringed or threatened can also bring the matter before the competent courts. The Committee understands that a new Labour Act has been adopted in 2007, but has not yet been enacted. The Committee requests the Government to provide in its next report information on the practical application of sections 5 and 7 of the Labour Act, 2004, including information on the number, nature and outcomes of disputes brought before the competent authorities. In this regard, the Government is requested to indicate any measures taken to assist victims of discrimination to take legal action. The Committee also requests the Government to provide information on the status of the 2007 Labour Act.

2. Article 1(1)(b). Additional grounds. In its previous comments the Committee requested the Government to indicate whether the additional grounds set forth in the Labour Act, 1992 (economic status, marital status, sexual orientation, family responsibilities and disability) are to be covered by this Article of the Convention. In its report, the Government stated that “the additional grounds as set out in the Labour Act, 1992 (Act No. 6 of 1992) are to be covered under this section of the Convention”. In this regard, the Committee notes that the Labour Act, 2004, no longer prohibits discrimination based on the ground of sexual orientation, which was the case under the 1992 legislation. In the light of the Government’s statement indicating its acceptance that the ground of sexual orientation is to be included in the definition of discrimination for the purpose of this Convention, the Committee requests the Government to take measures to ensure that workers are protected against discrimination on the ground of sexual orientation, and to provide information in this regard.

3. Articles 2 and 5. Affirmative action. The Committee notes with interest that the Employment Equity Commission carried out an Affirmative Action Impact Assessment Study in 2004. The Study examined the results achieved between 2000 and 2004 in promoting equal participation in employment of persons belonging to one of the three designated groups (racially disadvantaged persons, women, persons with disabilities) under the Affirmative Action (Employment) Act, 1998. The study showed that most workplaces covered by the Act were still far from being balanced in terms of gender and colour. White men continued to dominate in management positions with women, particularly black women, being concentrated in lower job categories. Only some enterprises employed persons with disabilities and only very few of them implemented concrete programmes to accommodate persons with disabilities.

4. The Committee notes from the 2005–06 Annual Report of the Employment Equity Commission that, in response to the impact assessment study of 2004, assistance to and training for employers was stepped up in order to strengthen affirmative action at the enterprise level. In its report, the Employment Equity Commission concludes that, as a result of these efforts, the number of affirmative action reports received under the Act has increased during 2005–06. However, this has not necessarily translated into an improvement of the representation of persons in designated groups in management positions. In addition, the Committee notes that, while previously workplaces with more than 50 employees were required to report under the 1998 Act, the reporting threshold has been lowered to workplaces with more then 25 employees.

5. The Committee welcomes the continuing efforts made in Namibia to assess and strengthen national policies and mechanisms to promote equality in employment and occupation in a proactive manner. The Committee requests the Government to continue to provide information on the implementation of affirmative action in employment and occupation and on any measures taken to increase the impact of the laws and policies providing for such action. The Committee also requests the Government to provide more detailed information on the measures taken to respond to the training needs of women, racially disadvantaged persons and persons with disabilities in order to promote equal opportunities for all, including statistical information on their participation in training and education at all levels.

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