Agency work : comparative study between Namibia and South Africa

Abstract

Namibia and South Africa are members of the International Labour Organisation and thus have to comply with the international labour norms on agency work as outlined in the ILO's Private Agency Employment Convention No. 181 of 1997. However, both countries have not signed the Convention. Despite the fact that both countries have not ratified the Convention, the Convention exerts an influence in their national law in view of their constitutional architecture. Both Namibia and South Africa have recently been grappling with regulation of agency work. Namibia recently amended its legislation in order to unban agency work and regulate it whilst South Africa recently amended its regulatory framework to further regulate agency. Since international norms exert an influence in both Namibia and South Africa the study firstly critically discusses the international norms on agency work. Secondly, Namibia’s assessment of compliance with international norms is embarked upon. It is concluded that in reality Namibia’s regulatory framework is not consistent with international norms in that the user enterprise is regarded as an employer of agency workers. This policy decision is informed by the historically hostile view that Namibia has of agency work that saw Namibia legislatively ban agency work and such ban being confirmed by the High Court and subsequently reversed by the Supreme Court. Consequently, the Namibian government was forced to amend its regulatory framework, as such its regulatory framework is nationalistic and still fixed on the common law contract of employment as a foundation for regulation of the employment relationship. Thirdly, South Africa’s assessment with international norms is also embarked upon. In general, South Africa’s regulatory framework complies with international norms even though the regulatory framework has some shortcomings. Lastly, the study compares both the regulatory frameworks of Namibia and South Africa.