ALS loses labour law challenge

28 June 2013 | Justice

WINDHOEKFRED GOEIEMAN

African Labour Services' challenge of the constitutionality of the Labour Act has suffered a severe blow.
The Windhoek High Court yesterday ruled that the regulation of labour hire in terms of the amended Labour Act section 128 and Employment Service Act of 2011 is not in conflict with the provisions of the Namibian constitution.
Judge Harald Geier and Judge Chris Liebenberg, who presided over the ALS application, yesterday ruled that the amendment constitutes a rational regulation of the right of a labour-hire agency to practise or trade.
They found that the regulation was not so invasive of the labour-hire entities' right to trade or carry on business that it constituted a material barrier to the practice of that profession, trade or business.
"Regulation of labour hire in terms of the amendment is not in conflict with Article 21 (1)(1) of the constitution relating to freedom to carry on economic activity."
The amendment was an attempt by the government to close the gap in the existing legislative framework which had in the past allowed the circumventing of the Labour Act. "That is a far cry from being irrational," the judges found and added that on the contrary nothing in the sections indicates that the regulation is irrational, even though it might amount to 'overkill'.
They concluded that the amendment is not so invasive of the freedom to carry on economic activity and that such restrictions are not to be regarded as an impermissible material barrier to their business.
According to them it is important to keep in mind that the courts in modern democratic countries proceed from the premise that it is not for them to dictate economic policy and regulation.
They further said that the minister's power to make regulations is discretionary and added that his failure to promulgate regulations prior to the putting into operation of the Act could thus not be regarded as him having acted beyond his powers which would have entitled the applicant to have the Act set aside.
"The application will have to be dismissed with costs," the judges ruled.
The new section 128 of the Labour Act came into force on August 1, 2012. The parliament approved the amendment after the Supreme Court in December 2009 ruled that a previous version of section 128 which outlawed labour hire was unconstitutional.
The new section stipulates that a labour-hire worker is an employee of the company and as such enjoys the same rights, such as protection against unfair dismissal and the right to join a trade union, as other employees of the company under the Labour Act.

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