A Critical Analysis Of The New Labour Act Number 11 Of 2007 In Light Of The Law On Labour Brokerage

ABSTRACT

Labour brokerage is a term used to describe the relationship that exists between labourers, known as contractors or hired employees and the labour brokerage organizations that employ the labourers. The company to which they provide labour is not their employer. The term therefore refers to the situation in which the labour broker provides clients to render services or perform work for the third party that contracts with the labour broker and in return, the third party rewards the labour broker for the services rendered. The case of African Personnel Services (Pty) Ltd v Government of the Republic of Namibia & Others 2009 (2) NR 596 (SC) thus sums up the powerful and painful memories of the abusive “contract labour system” which was part of the obnoxious practices inspired by past policies of racial discrimination. This study thoroughly examined how labour brokerage has polarized the Namibian society as a result of the painful memories it evokes. In light of the Supreme Court`s decision to allow the operation of labour brokerage, albeit within a regulated framework, the study examined in detail the Labour Amendment Act of 2012 enacted on the 1st of August 2012.The regulatory framework is examined by making a comparative analysis of the law on labour brokerage in other jurisdictions. The jurisdictions examined in this study included South Africa, the Netherlands, Australia, the United Kingdom and the Republic of Zimbabwe. The challenges Namibia has faced vis a vis each of these jurisdictions in relation to the regulations were critically analyzed. The study was based on both primary and secondary sources of law which include statutes, conventions, judicial precedent and academic writers. The research found that even though the various jurisdictions including Namibia have faced challenges with the implementation of a 6 uniform regulatory framework, it has been concluded that permitting a system of regulated labour brokerage rather than an outright ban is the best available option. Most of these countries have adopted regulatory frameworks in their respective jurisdictions in compliance with ILO Convention 181 of 1997. The only exceptions are Zimbabwe, which has an outright ban on labour brokerage, and South Africa, which drafted a Labour Amendment Bill in 2012. It is an inescapable conclusion that the regulatory framework in Namibia which has conferred on the temporary employees a degree of permanency has similarities with the South African legislation. It is evident that the regulations comply with the ILO Convention 181 of 1997. The study concludes that this is a positive development in the jurisprudence on labour brokerage in Namibia as it will curtail the abuses and exploitation of temporary employees which was the major concern of its opponents.