Abstract
Labour hire, the practice of hiring out employees to clients by a labour broker, has been a part of Namibia’s history since the early 1900s in the form of the contract labour system. This form of employment was characterized by inhumanity and unfair labour practices. These employees were subjected to harsh working conditions, inhumane living conditions and influx control. The contract labour system continued until 1977, when it was abolished by the General Law Amendment Proclamation of 1977. It was during the 1990s that the hiring out of employees returned in the form of labour hire. It continued in this form without being regulated until it was banned in the Namibian Labour Act of 2007. In 2009 Africa Personnel Services, Namibia’s largest labour broker, brought a case before the court against the Namibian Government in an attempt to have the ban nullified on grounds of unconstitutionality. It argued that the ban infringed on its right to carry on any trade or business of its choice as contained in section 21(1)(j) of the Constitution of the Republic of Namibia. APS triumphed. It was not until April 2012 that new legislation was promulgated in order to officially lift the ban and to regulate labour hire in its current form. This new legislation came into force in August 2012. Various very important provisions are contained in the Labour Amendment Act 2 of 2012 concerning labour brokers. Part IV of the Employment Services Act 8 of 2011, containing provisions for the regulation of labour brokers as juristic persons per se, was also introduced and came into force in September 2012. The aim of this note is to serve as a lesson to the South African government as to what could happen if labour brokers continue without legislation properly addressing the pitfalls associated with labour brokers. Also, it could serve as an example as to how the employees of a labour broker should be protected. In this regard the history of labour hire and the current strides in Namibia cannot be ignored.
Highlights
Since the 1990s labour hire has increased rapidly in Namibia, without being regulated.[1]
From 2007, labour hire was banned by the Namibian Government, up to the point in late 2008 where the Namibian Supreme Court case of Africa Personnel Services v Government of the Republic of Namibia[2] once again focused the attention on this form of employment
Instead the Namibian Government, apparently assuming that the labour hire system was based on the contract labour system of the 1900s, argued that a total ban of labour hire was justified
Summary
Since the 1990s labour hire has increased rapidly in Namibia, without being regulated.[1]. These organisations provided temporary employees to the mines in Namibia from 1925 to 1943 and were considered responsible for the breakdown of traditional Ovambo society.[25] SWANLA is regarded as the body that introduced the first forms of the exploitation of temporary employees, in 1943 It used the desperation and vulnerability of the employees to the advantage of Namibian ( South West African) employers.[26] The organisation made it possible for white employers to employ indigenous Namibians, in which case the employer could use the services of the employee in whichever way was deemed suitable.[27]. Various labour laws were subsequently introducing an attempt to regulate labour hire, giving rise to its current form
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