By: Ludorf Iyambo
The Namibia Food and Allied Workers Union (NAFAU) says they are considering a countrywide demonstration after suffering a heavy defeat in their Supreme Court case vs Shoprite.
The High Court last year ruled in favour of Shoprite’s striking employees after the retailer decided to hire scab labour. However, Shoprite filed an appeal with the Supreme Court, requesting the High Court’s decision to be set aside. The Supreme Court then delivered a judgement in Shoprite’s favour in April.
“We are considering calling a national demonstration regarding the Supreme Court decision. To our lawmakers, protect the rights of the Namibian workers that are taken away. Namibian workers, stand up against this extreme judgement to organise and mobilise fellow workers to join the upcoming national demonstration,” said NAFAU’s secretary-general, Jacob Penda.
Penda described the judgement as a shocking outcome. He said the decision undermines the constitutional rights of all Namibian workers to strike effectively and takes away the protection found in sections 76 (3) (a & b) of the Labour Act No.11 of 2007.
“It is crucial to note that this judgement hurts any future legal strike in Namibia. We are sharing this with Shoprite employees and all workers across the country to express our strong opposition to this decision. We should not compromise our right to strike. Now is the time to seek help and rescue workers urgently,” stated Penda.
According to the NAFAU SG, workers are suffering at the hands of the laws, and he requested it to stop. He also called upon the labour, industrial relations and employment creation ministry to finalise the labour Act amendment soonest to include section 76.
Section 76 states that “despite the provisions of any contract of employment or collective agreement, an employer must not require an employee who is not participating in a strike that is in compliance with this Chapter or whom the employer has not locked out to do the work of a striking or locked-out employee unless the work is necessary to prevent any danger to the life, personal safety or health of any individual.”
According to the Supreme Court Judgement, NAFAU lost a case on various grounds. One of those is that the appeal raises the questions concerning the rights of employers during a strike and the labour court’s jurisdiction to grant urgent interim relief, whilst the review concerns whether there was an irregularity in proceedings which led to a finding of contempt of court.
The review proceedings also raise how petitions directed to the Chief Justice to invoke the court’s review jurisdiction are to be brought.
The judgement further stated that during the first half of 2020, Shoprite and the Union were engaged in annual wage negotiations regarding employee wages and conditions within the bargaining unit. These negotiations reached a deadlock, and the Union, on 26 June 2020, referred a dispute of interest to the labour commissioner in terms of 82 of the labour Act 11 of 2007, which is an appeal and a review of the decisions of the court quo originating from the same protracted labour dispute, which culminated in a strike.
The judgement added that the Union argued that clause 8 precluded Shoprite from hiring ‘scab’ labour to perform the work of striking employees and that clause 9 meant that Shoprite could not require non-striking employees to complete the work of striking employees.
The Union contended that both forms of conduct fell foul of 76(3)(a). The Union argued that 76(3)(a) prohibited an employer from engaging employees to do the work of striking employees and banning managerial employees from doing such work.
Shoprite’s response was to point out that seasonal employees were employed annually as an established practice during the peak festive season up to the re-opening of schools in January.
The Union demanded an undertaking from Shoprite that additional seasonal employees would not be employed in contravention of clause 9 of the strike rules. This, they said, was not forthcoming from Shoprite.
This resulted in the Union approaching the labour court on an urgent basis to prevent Shoprite from contravening clause 9 and s 76(3)(a) on 23 December 2020.
