I've got to say it

What the Employment Service Bill means?

2011-01-20T15:05:00.000+02:00

The Employment Service Bill was passed by National Assembly before the Assembly adjourned at the beginning of November 2010. To date, 20 January 2011, it is not law yet but it is on its way to become law.

In essence the Ministry of Labour and Social Welfare will keep a data bank of all vacant positions at “designated employers” within Namibia and people. Job seekers that wish to be recruited and designated employer intends to recruit for vacant positions (any including temporary employees) must inform the Ministry of Labour as such.

Whether an employer must comply with the Employment Service Bill [when it is promulgated into law and came into force will in force] will depend on the definition or meaning of a designated employer.

A designated employer in terms of the Affirmative Action Act means any employer with 25 or more employees, but it should not be confused with whatever meaning will be allocated to it.

The Ministry will then notify the designated employer by recommending candidates selected from the list of job seekers, for consideration for employment at the designated employer.

If the designated employer wishes not to appoint one of the candidates recommended by the Ministry, then the designated employer must explain why not, and can only do so if the evaluation pertaining to capability and competency was performed by psychometric evaluation, conducted by person so registered in Namibia in terms of the Social Work and Psychology Act, 2004.

Thus, Human Resources Managers who are not registered (and qualified as such) will in future not be able to select and recruit candidates, safe to just accept a candidate recommended by the Ministry.

This piece of legislation appears to elements of a socialist employment system to supersede all recruitment services in Namibia, as far as designated employers are concerned.

The practicality will be done through a National Employment Service created in terms of the Employment Service Bill. However, the purpose of the Bill is noble and aims to achieving full, productive and decent employment in Namibia through a national professional labour market service.

The Employment Service will consist of a Board and of a Bureau.

The Board

The Board will report annually to the Minister upon which the Minister must lay the report before parliament within 30 days after receipt thereof and the Board will advise and interact with the Minister of Labour and Social Welfare.

The Bureau

The Bureau will inter alia:

1. register job seekers;
2. register vacant positions in private and public service
assist job seeker to find employment and to recommend suitably qualified job seekers to employers
3. provide vocational guidance;
4. regulate psychometric tests for selection and recruitment in terms of the Social Work and Psychology Act, Act 6 of 2004 Public Service
5. keep a list of non-Namibian citizens employed within Namibia
6. register private employment agencies and regulate their work.

Designated employers

The provisions of the Employment Service Act will be applicable to designated employers and private employment agencies. The restrictions placed on private employment agencies will by implication not be applicable to the employment agency that will be known as the National Employment Service Bureau.

If a designated employer places a job advertisement, the Bureau must be notified thereof not later than the date of the advertisement.

A designated employer will be prohibited from employing any person through a private employment agency if the designated employer has:

1. An outstanding compliance order issued by a labour inspector; or
2. Not a certificate of good standing with the Social Security Commission; or
3. Not a certificate of compliance with the Affirmative Action (Employment) Act.

Recruitment

No position may be filled temporary or otherwise by a designated employer if the vacancy has not been reported to the Bureau.

Employment Officers

Employment Officers will be appointed to enforce compliance with this Act. Their powers include powers to enter and inspect any p[lace of employment and they may exercise powers equal to powers given to labour inspectors in terms of section 125 of the Labour Act, which include power to search premises as if they are police officers, however, they must comply with the Criminal Procedure Act.

The employment officer may without notice and at any reasonable time during the day enter the premises of the employer and conduct a search. The only protection of the rights of employers is that it must be at a reasonable time, hopefully they will be trained on the meaning of reasonableness, and that a search must be in line with chapter 2 of the Criminal Procedure Act, 1977.

Promulgation

The Act will only come into operation when the Board has been appointed and the Board advised the Minister on what would be the meaning of a “designated employer”.

In my opinion, so many things need to happen and take place before any impact on the employment market, that it may very well be a “never to be implemented” piece of legislation filed right next to the Tobacco Control Act. We’ll see…

The Rule of Law and the wheels of Justice

2010-11-01T22:00:00.000+02:00

The authority to adjudicate labour disputes is subject to compliance with the regulations, rules and provisions contained in legislation.

The arbitration of labour disputes must, and should, be preceded by compliance with the administrative requirements. Even though frustrating for the complainant, powers cannot be exercised unless the process commenced in line with the prerequisites. Those in power, who wish to exercise its discretion for some of other reason, will step over the line by getting involved or failing to ensure compliance.

Great, in normal language it means that if the process is not followed and rule snot adhered to, those that exercise the powers do so without legislative authority and are overstepping the basic principles of the Rule of Law. Statutory appointed Conciliator and Arbiters must adhere to the rules and ensure that parties comply with the rules, regardless of the sad story behind the complaint.

If they cannot follow their own rules, the public will continue to mistrust their competencies and abilities, which are the corner stone of justice.

We have seen cases won and lost based on the wording of a power of attorney, at first it appears to be that justice was not done, but in absence of compliance with the prerequisites, the authority to adjudicate has not come into force, and whatever is done thereafter, could be worthless.

Follow the letter of the rules and regulations and its opens the door to justice, ignore it and injustice will follow.

No Smoking Please

2010-07-19T23:31:00.000+02:00

Namibia joined a large number of countries that undertook to regulate smoking. The Tabacco Control Act has been promulgated but has not come into force. Although smokers and non-smokers have been talking a lot about it, it is mostly restaurants that became concerned about the impact it will have on there businesses.

It is clear that the Regulations which has not been published yet will be a corner stone for the implementation of the Act. A positive point in development of law in Namibia is the fact that draft regulations must be published and the public will be invited to comment during a period of three months before the regulations will be accepted. This means that the Tobacco Control Act will not come into force in the near future.

I hope that this Act will not follow the "new" Criminal Procedures Act" or "new" Companies Act and many more that has been promulgated but of which the coming into force depends on never ending struggle to ensure that the implementation will be practical possible - if that is the delay in the coming into force of it.

Be that as it may, the Tobacco Control Act does not permit a "smokers corner" in a restaurant, bar or place entertainment or at the work place. So we probably will see the smokers taking off to the streets, once the Act comes into force. I just hope they take their ashtrays with them.