By:Megameno Shinana
With a supreme court judgement having ruled two years ago that scab labourers acted independently when performing the work of striking workers, a prominent lawyer Nixon Markus has bashed the court for effectively rendering strikes meaningless.
Labour experts are now taking the war onto the doorstep of the law itself.
The supreme court judgement was handed down in the matter between Shoprite and striking workers back in 2020 after the latter accused the former of undermining their strike by employing scab labour.
Public policy analysts, Professor Lucy Edwards-Jauch and Ndumba Kamwanyah, in the latest Inequality and Social Justice Report, have come out in full support of the views of Markus who have heavily criticised the judgement.
They are now calling for a change in the law itself, as a way to take the wind off the wing of the judgement and rescue striking workers from having their collective bargaining efforts undermined by employers through replacements.
In their analysis, the two public policy analysts contend that the article demonstrates how ideological persuasions and biases of judicial officers are reflected in the interpretation of the law.
“In his opinion piece ‘From Collective Bargaining to Collective Begging: Namibia’s Supreme Court Undermines the Right to Strike’, Marcus details how a recent judgement by the Namibian Supreme Court rendered the right to strike meaningless,” they wrote.
“In the case of the Shoprite workers’ strike of 2020, different courts came to different conclusions about how the use of scab labour undermines the right to strike. Markus argues that the Supreme Court demonstrated indifference to power differentials by assuming that non-striking workers acted “autonomously” when they performed the work of striking workers,” they further wrote.
“The court was of the opinion that non-striking workers “volunteered” to do the work of strikers, without considering the coercive effects of economic power. Markus maintains that the court’s imperviousness to power imbalances resulted in a ruling that undermines collective bargaining,” they added.
The two analysts reasoned that only a revision of the law to explicitly and unambiguously protects the right to strike from the use of scab labour can effectively restore the right to strike.
The experts also observed that declines in labour’s share of income is directly increasing income inequality and they have as such called on the protection of labour rights as central to overcoming wage inequality.
“Despite progressive labour laws, high levels of unemployment, underemployment and informal employment undermine labour rights granted in law. This affects wage inequality (Martin, 2022). High levels of unemployment and power imbalances between capital and labour also undermine the bargaining position of individual workers.”
“It is through collective bargaining that workers are able to assert their labour rights and engage in industrial action to improve their working and living conditions. The right to strike is an essential aspect of collective bargaining and is legally protected. Where this right is violated, workers have recourse to the courts and the Office of the Labour Commissioner to seek relief,” they said.
In its opening pages, the Inequality and Social Justice Report re-affirms that Namibia, like most of southernAfrica, is still trapped in an unequal economic development model, and hence displays persistently high levels of inequality.
This inequality, according to the report, affects groups diferentially, depending on their social class, race, gender, ethnicity and geographic location.
“The multi-dimensional nature of inequality is revealed in unequal access to productive resources, particularly arable land; unequal wealth ownership; highly skewed levels of income; unequal access to housing, education, health care and other services; a lack of comprehensive social security coverage; high levels of unemployment, informal employment, and wage inequality; differential and unequal access to labour rights; and persistent racism,”the report stated.