The Affirmative Action (Employment) Act, 1998 (No.29 of 1998) only applies to relevant employers. In terms of the Act, an employer is identified as a relevant employer by means of a notice in a Government Gazette issued by the Minister of Labour, either individually or by category.
WHAT REQUIREMENTS MUST AN EMPLOYER MEET TO BE DECLARED AS RELEVANT EMPLOYER?
As per the Government Gazette 3658, Notice 95 of 8 June 2006 an employer who employs 25 or more employees is designated as a relevant employer. Therefore, presently, all employers in Namibia employing 25 or more employees are regarded as relevant employers and are required to comply with the Affirmative Action (Employment) Act.
In the case of employers whose employee numbers vary from time to time in any given year based on economic or other factors, the number of employees shall be calculated by summing the number of employees employed by the employer at the end of each of the proceeding twelve months divided by the number 12.
An employer shall cease to be a relevant employer if the number of employees decreases and the employer employs less than 25 employees. The employer is required in such a case to inform the Employment Equity Commission by way of the prescribed notice and within 30 days from the date of such reduction. Failure to do so is a criminal offence. Similar provisions apply to those employers who at the time of the Minister’s notice in the Government Gazette employed less than 25 employees and the number subsequently increased to 25 and more employees.
WHO IS TREATED AS A SINGLE EMPLOYER?
Section 21 of the Act stipulates that the Employment Equity Commission (EEC) may, on its own accord or on application made to it, make an order that an employer is regarded as a relevant employer and any or all its subsidies, branches, or any other subdivision, as they may be, constitute a single relevant employer for the purposes of this Act.
A relevant employer may in writing apply to the EEC, in the prescribed form determined by the Commission, to make an order that such employer and any other relevant employer named in such application constitute a single relevant employer for the purpose of this Act.
A registered trade union representing the interest of the employees of a relevant employer or any other representative of such employer’s employees, may also in writing apply to the Commission, in the prescribed form determined by the Commission to make an order that such employer and any other relevant employer named in such application constitute a single relevant employer for purposes of this Act.
The EEC shall in writing inform the relevant employer and the registered trade union or other representative of any order made in respect of an application under section 21.
WHAT CAN A PARTY DO WHEN THEY ARE AGGRIEVED WITH AN ORDER OF THE COMMISSION?
An Employer, a registered trade union or other representative who is aggrieved by an order of the Commission made under section 21 may within a period of 30 days from the date upon which the notice was received, in writing, appeal against such order to the Labour Court.
The Labour Court may allow an appeal to be noted in terms of section 21 (3), notwithstanding the expiry of the period of 30 days.
An appeal to the Labour Court in terms of the Affirmative Act shall be subject to the provisions of the Labour Act, 2007 (No.11 of 2007), and its regulations.
The Labour Court may in respect of an appeal lodged confirm the order appealed against, set aside such an order, or make such order as it deems fit.