Gender and the Labour Act 11 of 2007

© Based on a template produced by the Gender Research and Advocacy Project

of the Legal Assistance Centre

The Legal Assistance Centre takes no responsibility for any changes

made to the template.

Introduction

The aim of the Labour Act is to ensure that all employees receive the same basic rights and protections. This presentation focuses on:

– Discrimination on the basis of sex, family responsibilities or pregnancy

– Pregnancy & maternity leave– Family responsibilities– Compassionate leave– Sexual harassment

Who is covered by the Labour Law?

• Provisions on discrimination and sexual harassment apply to ALL employees

• Provisions on maternity leave and compassionate leave apply to all EXCEPT the following members:– Namibian Defence Force

– Namibian Police Force

– Municipal police services referred to in the Police Act of 1990

– Namibian Central Intelligence Service

– Prison Service

Discrimination

An employer may not directly or indirectly treat employees different on basis of:

• sex• marital Status• family responsibilities• previous, current or future pregnancy

Example

Discrimination applies to

• All aspects of employment – including things such as:– promotions and demotions– transfers– selection for training programmes

BUT

It is NOT discrimination to apply affirmative action with women for same opportunities or

equal representative in the workplace

It is discrimination to decide between equally-qualified job applicants on the basis of their sex

– UNLESS the sex of the employee is an essential part of the job

Example:Is this discrimination?

WHY?

• Constitution and Labour Act allow special measures to make up for women previously disadvantaged

What is a family responsibility?

It is a duty to provide care and support to a parent, child, wife or some other dependent

The law & family responsibilities

• An employer may not discriminate on the basis

of family responsibilities

• Must make allowances for family responsibilities

• This applies to both men and women

Pregnancy and maternity leave

Can a woman be treated differently at work during pregnancy?

• When pregnant a woman may not be able to complete usual tasks

• Employer may assign different tasks• BUT may not reduce salary or benefits

Is this discrimination?

Are all women entitled to maternity leave?

• Any women who has worked at least SIX months in a row is entitled to maternity leave and benefits

How long is maternity leave?

A woman is entitled to: • 4 weeks BEFORE her expected due date • 8 weeks AFTER the delivery of the baby

= A total 12 weeks of maternity leave

• But sometimes maternity leave might be longer

Examples

• Suppose a woman goes on leave 4 weeks before her due date but the baby comes 2 weeks early

• She must get 10 weeks maternity leave after the baby is born (not 8)

• Suppose another woman goes on leave 4 weeks before expected date, BUT the baby comes after she has been on leave for 6 weeks

• She must still get 8 weeks leave after baby’s birth

Every mother needs a minimum of 8 weeks after the birth to allow for breastfeeding and

caring for the newborn

Payment during maternity leave

• Social Security Commission pays a basic wage of 100%, up to a ceiling of N$10 000 from June 2011*– Includes only ordinary wages, without extras like S&T,

housing, overtime, etc

• Employer continues to pay other benefits, such as pension and medical aid

• All employers must register their employees with the SSC

* Confirmed March 2010

What if there are health problems?

• Maternity leave may be extended if you or the baby have unusual health problems– This can be for one month or for the amount of sick

leave accumulated, whichever is longer

• Must provide a doctor’s certificate for the extended leave

Pregnancy-related dismissal?

• An employer may not dismiss a pregnant woman for pregnancy related reasons, but suppose you are unable to do your usual job because of your situation?– Your employer is required to

offer comparable work at the same wages

– If you refuse, then you could be dismissed

Compassionate Leave Compassionate leave is leave required because

of death or serious illness in the family

(child, parent, brother, etc)

• Employees receive 5 days compassionate leave in every year of continuous employment

• It is not part of sick leave or maternity leave

• It cannot be carried over

Sexual harassment

A person may not, in any employment decision

or in the course of an employee’s employment,

directly or indirectly sexually harass an employee.

Labour Act, section 5(8)

What is sexual harassment?

• It is unwarranted sexual behaviour towards an employee by the employer or a co-worker

Examples of sexual harassment

There are 2 types of sexual harassment:

(1) where the employee has indicated that the conduct is unwelcome

David asks Jessica to go for a drink with him after work. Is this sexual harassment?

No, unless David has asked before and Jessica has indicated that his attention is not wanted

(2) where any reasonable person would find

the conduct unacceptable

Pauline is the manager of the company, she has asked Brian to go on a date with her but he has refused. She says that unless he goes on a date with her she will fire

him. Is this sexual harassment?

Yes. Pauline is using her role as an employer to try to influence Brian.

What is the employer’s responsibility in cases of sexual harassment?

• It is illegal for an employer to engage in sexual harassment of employees

• Employers are expected to take reasonable steps to make employees safe from sexual harassment by co-workers

What can you do if you think your employer has violated the Labour Act?

• Collect evidence to support your case

• Make a complaint to your employer

• If the issue is not resolved, you can make a complaint to a labour inspector or the Labour Commissioner

What are the consequences for an employer who does not

follow the Labour Act?

The employer could be asked to:

• reinstate an employee who was unfairly dismissed

• pay compensation to the employee• take other steps ordered by a labour inspector or

Labour Court

For further information

• Contact the Ministry of Labour and Social Welfare (061 2066111)

• Contact the Legal Assistance Centre (061 223356; info@lac.org,na )