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Comments adopted by the CEACR: Namibia

ADOPTED_BY_THE_CEACR_IN 2021

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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.

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Article 1(1)(a) of the Convention. Discrimination based on sex. Sexual harassment. In its previous comment, the Committee requested the Government to provide information on: (1) any legislative amendment in relation with the definition of “sexual harassment” to ensure that it covers all forms of sexual harassment (both “quid pro quo” and “hostile environment” sexual harassment); and (2) the results of the study conducted on harassment and violence in the world of work, and the possible measures adopted in this context to address sexual harassment in employment and occupation. The Committee notes that, in its report, the Government provides the text of a possible amendment to section 5(7)(b) of the Labour Act which would read as follows: “Sexual harassment includes a hostile environment or unwarranted conduct of a sexual nature affecting an employee or employer representative in the context of employment.” The Committee welcomes this information. However, the Government does not provide information on the status of this proposed amendment nor on when it is expected to be tabled in Parliament. The Committee takes this opportunity to recall that the scope of the protection against sexual harassment should cover all employees, male and female, with respect not only to employment and occupation, but also vocational education and training, access to employment and conditions of employment (2012 General Survey on the fundamental Conventions, paragraph 793). As for the scope of protection, it should cover employers, supervisors and co-workers and, where possible, clients or other persons met in connection with performance of work duties, such as, for example, providers, contractors, or patients (see the Committee’s general observation of 2002 on sexual harassment). Regarding the study conducted on harassment and violence in the world of work, the Committee notes the Government’s indication that the study was published in 2019 and found that: (1) the prevalence of violence and harassment in the world of work is high and it negatively affects a large part of Namibia's workforce, and needs to be addressed as a matter of urgency; and (2) cases of violence and harassment in the world of work remain largely unreported, unresolved and unpunished because of a series of reasons, among which: (a) the fact that the Labour Act is not explicit and comprehensive in this regard; (b) unclear and inefficient reporting structures and procedures; (c) the absence of comprehensive workplace policies and reporting structures; (d) a general attitude of shifting blame to the female victims in cases of sexual harassment and victims experiencing a misplaced sense of shame; (e) victims’ fear of retaliation or victimization (such as losing their job) or of not being believed if they report violence and/or harassment, or being unable to prove cases of harassment; (f) limited protection for whistle-blowers and witnesses in laws and policies; and (g) a general acceptance of power inequalities. The Government draws attention to the ratification of the Violence and Harassment Convention, 2019 (No. 190) in December 2020 and the establishment of a tripartite working group to assist in the implementation of Convention No. 190. It also indicates that a training manual was developed and 15 master trainers were trained to train ‘change agents’ who will be responsible for the rolling out of training sessions in their respective workplaces. In view of the above, the Committee asks the Government to provide information on: (i) the state of progress regarding the amendment to section 5(7)(b) of the Labour Act with a view to cover all forms of sexual harassment; and (ii) the concrete measures taken or envisaged to follow-up on the recommendations of the study published in 2019 on harassment and violence in the world of work, especially with regards to sexual harassment.
Sexual orientation. Previously, the Committee asked the Government to provide information on the results of the review of the Labour Act with regard to the protection against discrimination based on sexual orientation, expressing the hope that sexual orientation would be included in the list of prohibited grounds of discrimination in the 2007 Labour Act as it had been the case in the previous 1992 Labour Act. The Committee takes note of the indication by the Government that the Tripartite Task Force recommended that section 5(2) of the Act be amended by inserting “Or any other arbitrary (ground)” so that employees be protected from discrimination on arbitrary grounds not specifically listed in the Act, which, according to the Government, would include discrimination based on sexual orientation. Noting this information, the Committee asks the Government to provide information on the state of progress regarding the amendment to section 5(2) of the Labour Act. In the meantime, it asks the Government to provide information on the number and nature of any complaints or cases of discrimination based on sexual orientation dealt with by the labour inspectorate or the courts, as well as the sanctions imposed and remedies granted.
Discrimination based on race, colour and national extraction. In its previous comment, the Committee drew the Government’s attention to its 2018 general observation on race, colour and national extraction. In that regard, the Committee refers the Government to this year’s observation regarding the application of the Convention. The Committee asks the Government to provide information on the measures adopted or envisaged to: (i) assess the situation in employment and occupation of all ethnic groups and the discrimination faced by them; (ii) redress discrimination based on race, colour and national extraction; (iii) undertake awareness-raising and educational programmes to combat prejudice and stereotypes based on race, colour and national extraction; and (iv) monitor and assess the results achieved.
Articles 1 and 2. Equality of opportunity and treatment of members of indigenous communities. In its previous comment, the Committee asked the Government to provide information on the practical impact of the measures adopted by the Division of Marginalized Communities on the employment situation of members of the indigenous communities, including statistical information on the participation of indigenous workers in employment and various occupations, and earning levels, disaggregated by sex and by sector of activity. The Committee notes the Government’s statement that the Division of Marginalized Communities operates on three strategic pillars, namely: education support, livelihood support and land redistribution, in order to achieve its mandate, which is “to integrate the Marginalized Communities (the San, Ovatue and Ovatjimba Communities) into the mainstream of the Namibian economy”. It also notes that the pamphlet annexed to the Government’s report issued by the Division, while noting achievements attained – notably in education and livelihood support programmes, land redistribution and awareness campaign and public relations – also underlines the recurring challenges in terms of human capacity and financial constraints which limited the implementation of some projects. The Government indicates that the statistical information requested by the Committee on the employment situation of members of the indigenous communities is not available to the Division. The Committee further notes the declaration of the Government, in the national report it submitted to the United Nations Human Rights Council in the context of the Universal Periodic Review, that rights and welfare of indigenous peoples remain a government priority and that, after validation by Government and community representatives, the final draft White Paper on Indigenous Peoples (originally prepared in 2014) had been submitted to the Ministry of Justice for further processing by legal drafters (A/HRC/WG.6/38/NAM/1, 11 February 2021, paragraph 108). The Committee asks the Government to continue to provide information on concrete measures adopted and their impact to support the employment situation of members of indigenous communities. It also asks the Government to put in place measures to collect statistical information on the participation of indigenous workers in employment and various occupations, and earning levels, disaggregated by sex and by sector of activity; and to provide the information collected. Finally, it asks the Government to submit a copy of the White Paper on Indigenous Peoples once finalized and provide information on any follow-up.
Article 2. National policy to promote gender equality in employment and occupation. The Committee notes the information provided by the Government in response to its requests in the previous comment. Firstly, regarding the strengthening of the implementation of the affirmative action scheme to increase the participation of women in employment at all levels and in all sectors of activity, the Government indicates that: (1) the implementation of the National Gender Policy (2010-2020) resulted in remarkable progress in making women and the girl child's issues integral to development initiatives at the regional and national levels; (2) the formulation of the new National Gender Policy for 2021-2031 would be finalized this year; and (3) the Government adopted a gender-responsive budgeting approach. Secondly, as regards the improved access of women to productive resources, in particular land and credit, it emphasizes that the Land Resettlement Policy (2018-2027) was developed to address unequal land distribution and designed to benefit those landless Namibians who were previously disadvantaged (minority/marginalized groups, disadvantaged/destitute groups and women). Thirdly, in relation to the promotion of girls and women’s access to and maintenance in education and training with a view to promoting their access to a wider range of fields and occupations, the Government indicates that more girls are enrolling for tertiary education than boys. In terms of the impact of these measures, the Committee notes the Government’s statement that: (1) the Namibian Parliament almost reached gender parity as 46.2 per cent of the seats were held by women in 2018, a continuous increase since 2004 when it stood at 26.4 per cent; and (2) Namibia scored 65.1 for gender parity in the 2020 Ibrahim Index of African Governance Report (based on the 2019 assessment). As regards the latter, the Committee notes that this represents a slight increase (+ 1.7 points) compared to 2010, which puts Namibia at the seventh place among the 54 countries assessed. The Committee asks the Government to provide: (i) concrete examples of the measures adopted in order to increase the participation of women in employment at all levels and in all sectors of activity; (ii) information on the impact of the Land Resettlement Policy (2018-2027) such as, for example, the number of women who benefited from land redistribution since the adoption of the policy; and (iii) information on the type of support provided to women with a view to accessing non-traditional occupations. It asks the Government to provide information on the adoption of the new National Gender Policy for 2021-2031.
Enforcement. Ombudsman. In its previous comment, the Committee asked the Government to: (1) provide information on any activities undertaken by the Ombudsman’s Office to address specifically discrimination in employment and occupation; and (2) collect data on the number of cases brought to the attention of the monitoring and enforcement authorities in relation with discrimination in employment and occupation. The Committee notes the Government’s indication that it will provide information on the outcome of the envisaged collaboration between the Ombudsman and the Ministry of Labour in due course. As regards the number of reported cases of discrimination in employment, the Office of the Labour Commissioner recorded eight cases since 2009 (including five cases in 2021), whereas no case was recorded by the courts for the past three years. In this regard, the Government indicates that it has discussed the enhancement of the case management system for both the Office of the Labour Commissioner and the Employment Equity Commission with the ILO Technical Advisory Mission which took place following the conclusions of the 109th Session of the Conference Committee on the Application of Standards (CAS) in June 2021. The Committee asks the Government to provide information on any progress on the collaboration between the Ministry of Labour and the Ombudsman’s Office in relation to the elimination of discrimination in employment and occupation. It asks the Government to provide information on cases of discrimination in employment and occupation dealt with by the Ombudsman’s Office and the results thereof.

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Article 4 of the Convention. Valid reason for termination. In its previous comments, the Committee requested the Government to provide information relevant to the application of section 33(1)(a) of the Labour Act (Act No. 11 of 2007), which provides that an employer may not dismiss an employee without a “valid and fair reason”. The Committee recalls the Government’s indication in its previous report that the Labour Court has not established criteria for determining when a termination may be considered to have been made for a “valid and fair reason”. It further recalls that the Tripartite Task Force would consider including criteria for determining the existence of valid and fair reasons for dismissal in the Code of Good Practice to be included in the final amendments to the Labour Act. The Government reports that the Labour Act is still under review and that copies of the amended Act and Code of Good Practice will be shared with the ILO once these are finalized. The Committee also welcomes the copies of court decisions provided by the Government relevant to the application of section 33(1)(a) of the Labour Act. It takes particular note of the decision in Rossing Uranium Limited v Goseb (HC-MD-LAB-APP-AAA-2018/00034) [2019] NALCMD 4 (7 February 2019), in which the Court concluded that the overall requirement of substantive fairness within the meaning of section 33(1)(a) of the Labour Act must satisfy both the “valid reason” requirement, which demands the establishment of justification, and the “fair reason” requirement, which demands the establishment of reasonableness in the sense that the decision to dismiss is one that a reasonable employer acting fairly would take. Additionally, in its judgment in Fisheries Observer Agency v Everson, concerning an appeal against an arbitral award, the Court ruled that the process followed for dismissal was fair, but the reasons for dismissal were invalid and thus substantively unfair, because the employer failed to prove the employee’s breach of the employer’s written rule or policy. In its analysis, the Court cited the Rössing decision, observing that the two separate subrequirements of substantive fairness, a “valid” and “fair” reason, must both be met to satisfy the requirements of section 33(1)(a) of the Labour Act. In this context, the Committee recalls that “the more general the terms used in the applicable provisions, the more the definition of valid reasons for termination of employment depends on how these provisions are interpreted by the bodies that apply them (courts, industrial tribunals, arbitrators or other bodies). To understand the extent to which the reasons considered in practice as justifying termination of employment correspond to the valid reasons covered by the Convention, it is therefore important for countries which ratify the Convention, to communicate the decisions which form the basis of case law or to provide relevant information on how the provisions are applied in practice” (1995 General Survey on the Termination of Employment Convention (No. 158) and Recommendation (No. 166), paragraph 88). The Committee therefore invites the Government to continue to provide further information, including copies of additional court decisions, if any, relevant to the application of section 33(1)(a) of the Labour Act. The Committee also reiterates its request that the Government provide information on the status of the amendments to the Labour Act, and to transmit a copy of the amended legislation as well as the Code of Good Practice once these are adopted.
Articles 11 and 12. Serious misconduct. In its previous comments, the Committee requested the Government to continue to provide copies of relevant decisions rendered by the labour courts in applying section 35(2)(a) of the Labour Act, specifically in relation to dismissals on grounds of misconduct or poor work performance. In its response, the Government reiterates its previous reference to the Labour Court decision in Schmitz Services CC v. Titus and Another. In that case, the Court applied section 35(1) and (2) of the Labour Act in finding that the worker’s dismissal for misconduct was fair and that he was therefore not entitled to severance pay. No additional examples of jurisprudence were provided. The Committee recalls the relevance of jurisprudence to enable it to assess the manner in which Articles 11 and 12 of the Convention are applied in practice. The Committee therefore reiterates its request that the Government continue to provide copies of additional relevant decisions rendered by the labour courts applying section 35(2)(a) of the Labour Act, specifically in relation to dismissals on grounds of misconduct or poor work performance.
Application of the Convention in practice. The Committee notes the statistical information provided by the Government on cases registered and handled by the Labour Commissioner during the period from 1 April 2018 to 30 June 2019. The Government indicates that the Labour Commissioner handled 5,334 cases from 1 April 2018 to 31 March 2019. Of these, 2,191 cases were resolved through conciliation, 538 cases were resolved by arbitration, 2,605 were pending and 75 appeals had been registered. During the period from 1 April 2019 to 30 June 2019, the Labour Commissioner handled 1,143 cases, with 479 resolved through conciliation, 160 resolved by arbitration and 506 pending. Appeals were lodged in 20 cases. The Committee requests the Government to continue to provide updated information in its next report on the manner in which the Convention is applied in practice, including, for example, available statistics on the activities of the bodies of appeal (such as the number of appeals against unjustified termination, the outcome of such appeals, the nature of the remedy awarded and the average time taken for an appeal to be decided) and on the number of terminations for economic or similar reasons in the country. The Committee also requests the Government to continue to provide copies of decisions rendered by the labour courts or the Labour Commissioner involving questions of principle relating to the application of the Convention.

ADOPTED_BY_THE_CEACR_IN 2020

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Articles 1 and 2 of the Convention. Assessing and addressing the gender pay gap. In follow up to its last requests on the country gender pay gap and statistics on earning levels by sector and occupation, disaggregated by sex, the Committee takes note of the Namibia Labour Force Survey of 2018, indicating that: (1) the average monthly wage income for employees was higher for men (N$ 8,052) than for women (N$7,789), and that the average monthly wage income was higher for men in all industries except in the three sectors of electricity and related industries, transportation and storage, and extraterritorial organizations and bodies; and (2) women workers are more represented than men workers in the accommodation and food industry, domestic work, education, and financial and insurance industry. It also notes from the same survey that within these sectors, the average monthly wage is higher for men than for women, in particular in education (N$18,144 for men and N$14,138 for women) and in the financial and insurance industry (N$28,215 for men and N$16,296 for women), and that the sectors of accommodation and food and domestic work are the lowest paid industries (N$2,819 and N$1,387 respectively for a national average of N$7,325). The Committee requests the Government, in cooperation with employers’ and workers’ organizations, to take proactive measures to make progress in reducing the gender pay gap and to provide information on the measures taken in this regard, such as by promoting women’s access to a wider range of jobs with career prospects and higher pay, and combating stereotypes regarding women’s professional aspirations, preferences and capabilities, their role in the family and the concentration of women in low-paid sectors. It also asks the Government to provide information on any assessment made of such measures and their effective impact in addressing the gender pay gap and vertical and horizontal occupational segregation.
Article 1(b). Work of equal value. Legislation. The Committee had requested the Government to provide information on the application in practice of sections 5(1) and 5(3) of the Labour Act on the principle of the Convention, after noting that section 5(1)(g) defining “work of equal value” appeared to be narrower than the concept protected under the Convention as it referred to work “similar” or “broadly similar in nature”. The Committee takes note of the indications in the report of the Government that: (1) there are no court decisions recorded on the interpretation of the concept of “work of equal value” during the reporting period; and (2) a Statutory Tripartite Plus Employment Equity Commission (EEC) is examining the possibility of expanding its mandate in order to deal with pay equity related issues which include work of equal value principle, through the amendment of the Affirmative Action (Employment) Act (Act No. 29 of 1998) which has already started. The Committee notes this information and recalls that the concept of “work of equal value” must permit a broad scope of comparison, including, but going beyond equal remuneration for “equal”, “the same” or “similar” work, and also encompasses work that is of an entirely different nature, which is nevertheless of equal value (General Survey of 2012 on Fundamental Conventions, paragraph 673). The Committee therefore requests the Government: (i) to consider amending section 5(1)(g) of the Labour Act that defines “work of equal value” to ensure that the application of the principle allows for the comparison between jobs that are of entirely different nature, but nevertheless of equal value; and (ii) to provide information on whether the mandate of the Tripartite Plus Employment Equity Commission has been modified to deal with pay equity and whether it covers the application of the principle of the Convention.
Article 2. Minimum wages. In its previous comment, the Committee had welcomed the adoption of sectoral minimum wages in agriculture, security industry, construction industry, and in domestic work and requested the Government to provide information on: (1) any developments in determining minimum wages in other sectors; and (2) the steps taken to incorporate the principle of equal pay for work of equal value into the method of establishing minimum wages. The Committee takes note of the information provided by the Government on the security sectoral collective agreement adopted in 2017 and the indication that the criteria used in determining the minimum wage for entry level security officers were free of gender bias as they consisted of the need of employees and their dependants, the capacity of the employer to pay, the level of wages in the country as a whole, existing social security benefits, economic factors, and the need to improve security officers’ working conditions. In this regard, the Committee recalls that minimum wages set at the sectoral level tend to be lower in sectors predominantly employing women and that special attention is needed in the design or adjustment of sectoral minimum wage schemes to ensure that the rates fixed are based on objective criteria free from gender bias and in particular that certain skills considered “female” are not undervalued. Therefore, the Committee requests the Government to provide information on whether the method used to establish sectoral minimum wages ensures that skills considered “female” (such as manual dexterity, care delivery, service-type occupations) are not undervalued and that, consequently, the work in sectors with a high proportion of women is not being undervalued in comparison with sectors in which men are predominantly employed. The Committee also requests the Government to indicate whether minimum wages have been set in other sectors.
Article 3. Objective job evaluation. The Committee had requested information on the impact of the objective job evaluation systems in place in the public and private sectors. In this regard, the Committee notes that the Government refers to the grading exercise carried out in the public sector in 2013 by the Public Service Management System but does not provide information on the impact of this exercise on the reduction of the gender pay gap in the public sector nor on the effect of the job grading systems used by many organizations in the private sector to measure jobs according to their content and to establish comparative worth between jobs. The Committee reiterates its requests to the Government to report on any information available on the impact of the objective job evaluations conducted on the gender pay gap, both in the private and public sector.
Monitoring and enforcement. Noting the Government’s indication that there were no cases on the application of the principle since the ratification of the Convention, the Committee recalls that the fact that no new cases have been dealt with by the courts in the past decade may be an indicator of the lack of awareness, lack of access to remedies, or fear of retaliation. The Committee requests the Government to actively promote awareness of the principle of equal remuneration for men and women for work of equal value, in particular the concept of “equal value” and the procedures available to seek remedies, among workers, employers and their respective organizations as well as enforcement authorities.
Statistics. The Committee notes the statistical information on the employment of women and men disaggregated by occupation provided by the Government. The Committee invites the Government to continue to collect and analyse on a regular basis statistical data disaggregated by sex on employment, in particular in sectors in which workers are predominantly women and subject to lower levels of remuneration in comparison with jobs of equal value in other sectors.
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