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LAL112S - LABOUR LAW 1B - 2nd Opp - Jan 2023 |
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nAmlBIA unlVERSITY
OF SCIEnCE Ano TECHnOLOGY
FACULTY OF COMMERCE, HUMAN SCIENCESAND EDUCATION
DEPARTMENT OF SOCIAL SCIENCES
QUALIFICATIONS: BACHELOR OF HUMAN RESOURCES MANAGEMENT; BACHELOR OF
BUSINESS AND INFORMATION ADMINISTRATION
QUALIFICATION CODES: 07BHRM;
07BBIA
COURSE CODE: LAL112S
SESSION: JANUARY 2023
DURATION: 2 HOURS
LEVEL: S
COURSE NAME: LABOUR LAW 18
PAPER: THEORY
MARKS: 100
SECOND OPPORTUNITY/ SUPPLEMENTARY EXAMINATION QUESTION PAPER
EXAMINER{S}
Dr. C. Harris
Ms. M.M. van Zyl
MODERATOR: Ms. E. Wabomba
INSTRUCTIONS
1. This paper consists of 7 (seven) questions.
2. All questions are compulsory.
3. All questions must be answered in your Examination Book
4. Read all questions carefully before answering.
5. Incorrect spelling and illegible handwriting may prevent mark allocation.
PERMISSIBLE MATERIALS
1. Calculator
THIS QUESTION PAPER CONSISTS OF 10 PAGES (Including this front page)
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QUESTION 1
Choose the correct answer from the given options in each of the following questions. There is
only ONEcorrect answer for each question. Negative marking will not be applied but answers
to questions will not be marked where more than one answer has been given.
Only write the chosen letter next to the corresponding question number.
1.1 Choose the correct statement from the following:
In terms of the Labour Act 11 of 2007, an employer is entitled to terminate the services
of an employee:
(a) If such an employee fails or refuses to do anything that an employer must not
lawfully require or permit an employee to do.
(b) On account of the re-organisation, transfer, reduction or discontinuance of the
business for economic or technological reasons.
(c) If such an employee is a workplace union representative and represents a
fellow employee in a disciplinary hearing.
(d) If such employee's political opinion conflicts with that of the employer and/or
fellow employees.
(e) Neither one of the above options.
(2)
1.2 What will the notice period (in terms of the Labour Act 11 of 2007) be if an employee
terminates his/her contract of employment by notice within the first year of
employment?
(a) One working days
(b) One week
(c) One month
(d) 14 days
(e) Neither one of the above options.
(2)
1.3 One of the procedural requirements for a fair dismissal based on operational
requirements is to notify certain parties of the intended dismissal(s). Unless a
collective agreement provides for more favourable procedures, Section 34 of the
Labour Act 11 of 2007 prescribes as follows:
(a) The employer must inform the Labour Commissioner and all trade unions
represented at the workplace.
(b) At least 3 (three) months before the intended dismissals are to take place, the
employer must inform, among others, the Labour Commissioner of the
intended dismissals.
(c) At least four weeks before the intended dismissals are to take place, the
employer must inform, among others, the Labour Commissioner and any trade
union recognised as the exclusive bargaining agent of the intended dismissals.
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(d) A notice about the intended dismissal based on operational requirements must
indicate, among others, the names of those employees whose services will be
terminated.
(e) None of the above.
(2)
1.4 In a labour context, bargaining in bad faith includes:
(a) A fair reason for refusing to make a concession.
(b) Refusal to compromise.
(c) A fair reason for refusing to agree to a proposal.
(d) A failure and/or refusal to negotiate honestly and sincerely.
(e) Neither one of the above options.
(2)
1.5 A collective agreement binds:
(a) The parties to the agreement.
(b) Members of the parties to the agreement.
(c) All the employees in the bargaining unit if the agreement was concluded by an
exclusive bargaining agent.
(d) Any employee or employer who becomes a member of the respective trade
union or employers' organisation after the agreement became binding.
(e) All of the above.
(2)
1.6 Choose the correct statement:
(a) A recognised trade union is referred to in the Labour Act as a "sole bargaining
union" of employees.
(b) A registered trade union may seek recognition by delivering a request to the
Labour Commissioner and a copy of such request must be submitted to the
employer.
(c) An arbitrator can make an order declaring the union to be recognised as an
exclusive bargaining agent, as requested.
(d) Only a trade union recognised by the employer as an exclusive bargaining agent
may have workplace union representatives at the workplace.
(e) In the event that the membership of an exclusive bargaining agent within the
specified bargaining unit drops below the required majority, the employer
must withdraw the recognition immediately and notify the Labour
Commissioner of such withdrawal.
(2)
1.7 "Essential services" means:
(a) Any service that, if interrupted, would endanger the life, personal safety or
health of the whole of the population of Namibia.
(b) A service that, if interrupted, would endanger the life, personal safety or health
of the whole or any part of the population of Namibia and which has been
designated as such by the Minister in the Government Gazette.
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(c) A service that, if interrupted, would endanger the life of only Namibian citizens.
(d) A service essential for the productivity of the country.
(e) Neither one of the above options.
(2)
1.8 Any party to a dispute who is involved in the rendering of essential service which, if
interrupted, would endanger the life, health or personal safety of the whole or any
part of the residents of Namibia:
(a) Shall, where the dispute is a dispute of rights, refer the matter to the Labour
Court.
(b) May, where the dispute is a dispute of interests, refer the matter to arbitration.
(c) Shall have the right to take action by way of a strike or lock-out.
(d) Shall have the right to picket.
(e) Neither one of the above options.
(2)
1.9 The Namibian Constitution guarantees:
(a) The right to lock-out by an employer.
(b) The right to strike by employees.
(c) The right to assemble peaceably and without arms.
(d) Freedom of association.
(e) All of the above except (a).
(2)
1.10 In terms of the Labour Act 11 of 2007 an unfair labour practice includes:
(a) Any unfair conduct of an employer towards an employee.
(b) Discrimination
(c) Sexual harassment
(d) Conduct where the employer unilaterally changes any term or condition of
employment.
(e) All of the above.
(2)
1.11 Evaluating fairness in an employment context, involves, among others:
(a) A consideration as to whether the conduct was objective and justifiable.
(b) A consideration of the basic wage and benefits being provided by the employer.
(c) The favouring of the right of the stronger party, which is usually the employer.
(d) The favouring of the right of the weakest party, which is usually the employee.
(e) None of the above.
(2)
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1.12 Choose the correct statement:
(a) An arbitrator in statutory arbitration is entitled to make a cost order
irrespective of the circumstances.
(b) Arbitration tribunals have jurisdiction to hear and determine any dispute or any
other matter arising from the interpretation, implementation or application of
the Labour Act.
(c) Unless the dispute has already been conciliated, the arbitrator must first
attempt to resolve the dispute through conciliation.
(d) All the statements are correct.
(e) Only (b) and (c)
(2)
1.13 An arbitration award:
(a) Is binding, unless the award is advisory.
(b) Is automatically an order of the Labour Court.
(c) May be varied or rescinded by the arbitrator who has made the award.
(d) May be enforced by a labour inspector.
(e) All the statements, except (b), are correct.
(2)
1.14 Conciliation in terms of the Labour Act 11 of 2007:
(a) Is based on consensus between the parties, as no settlement will be imposed
on any party.
(b) Always includes an advisory award.
(c) Is always followed by an arbitration process if the matter remains unresolved
at the end of the conciliation period.
(d) All of the statements above.
(e) Neither one of the above options.
(2)
1.15 Choose the incorrect statement:
(a) No maternity benefits shall be payable to a female member who resumes her
employment or takes up any other employment during any period while she
receives maternity leave benefits.
(b) A medical practitioner, nurse or midwife registered as such may certify the
expected date of birth of a female member in terms of Section 29 (5) of the
Social Security Act 34 of 1994.
(c) A self-employed person is allowed to register himself or herself voluntarily as
an employer and employee in terms of the Social Security Act 34 of 1994.
(d) An employer, who deducts any contributions from the remuneration of an
employee and fails to pay over such contribution to the Commissioner within
the prescribed period, shall be guilty of an offence.
(e) Sick leave benefits are payable in respect of a member who was incapable for
at least 60 consecutive days.
(2)
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1.16 The Social Security Act 34 of 1994, as amended, applies to:
{a) All employers and employees in Namibia, including casual employees.
(b) All employers and employees in Namibia, excluding casual employees.
(c) All employers and employees in Namibia, excluding employees of 65 years and
older.
(d) Both (b) and (c)
(e) None of the above.
(2)
1.17 In terms of the Employees' Compensation Act 30 of 1941, when an employee dies
because of a work-related accident:
(a) The surviving spouse is entitled to a lump sum payment of a maximum of N$
5000.
(b) The surviving spouse is entitled to a lump sum payment of a minimum of N$
5000.
(c) Both the surviving spouse and each child under the age of 18 years are entitled
to a prescribed monthly pension.
(d) The surviving spouse and all children of the deceased employee are entitled to
a monthly pension.
(e) Both (b) and (c).
(2)
1.18 Possible benefit(s) payable in terms of the Employees' Compensation Act 30 of 1941
include:
(a) Maternity leave benefits.
(b) Unemployment Insurance benefits equal to the remuneration such employee
received prior to having been declared permanently disabled.
(c) Reasonable medical expenses.
(d) Monthly pension.
(e) Both (c) and (d).
(2)
1.19 The administration of the Affirmative Action (Employment) Act 29 of 1998 is carried
out by the:
(a) Labour Advisory Council
(b) Employment Equity Commission
(c) Labour Commissioner
(d) Social Security Commission
(e) Affirmative Action Committee
(2)
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1.20 Section 1 of the Affirmative Action (Employment) Act 29 of 1998 defines a 'suitably
qualified person' as a person who has:
(a) The necessary formal qualifications for a position of employment.
(b) The necessary ability for a position of employment.
(c) The abilities, formal qualifications or relevant experience for a position of
employment.
(d) Been disadvantaged in the labour field because of past discriminatory laws.
(e) The abilities, formal qualifications and relevant experience for a position of
employment.
(2)
[40]
QUESTION 2
Give a word or phrase (or complete the sentence), in the context of the common law, case
law and the relevant labour legislation, whichever is applicable:
2.1 In terms of section 5(9) of the Labour Act 11 of 2007, resignation by an employee
because of sexual harassment at the workplace.
(1)
2.2 An order from the Labour Court ordering strikers who take part in an unlawful strike
or picketing action to cease such action.
(1)
2.3 This process will be followed if a party to a dispute alleges a defect in any arbitration
proceedings.
(1)
2.4 A form of protest where striking workers congregate outside a place of work to, among
others, draw public attention to a cause.
(1)
2.5 A lump sum payable to an employee upon termination of a contract of employment in
prescribed circumstances, provided that such employee had served a minimum period
of 12 (twelve) months of employment.
(1)
2.6 The right of an employer to manage and run the business in the best interest of the
business, inclusive of the right to change work practices without the consent of the
affected employees.
(1)
2.7 The Death Benefit, payable in terms of the Social Security Act 34 of 1994, can also be
claimed upon either_ or permanent disability.
(1)
2.8 The decision of an arbitrator, given within 30 days of the conclusion of the arbitration
proceedings.
(1)
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2.9 Employees who are excluded from the operation of the Social Security Act 34 of 1994.
(1)
2.10 Differential treatment that can be justified, when measured against the requirements
of the job concerned or the operational requirements of the employer.
(1)
[10]
QUESTION 3
Answer the following questions in the context of the common law and/or the relevant
labour legislation:
The Management of Africa Restaurants Ltd (AR) resolved to restructure and reduce its
organisation to ensure that resources were concentrated on its core business. External
consultants were appointed to advise on the restructuring. The consultants presented their
final report and recommendations to the board of directors of AR, which, after having debated
it, accepted it. The report essentially involved the restructuring of AR, resulting in fewer posts
that existed before. In terms of this plan, positions will be filled from the top downwards. The
process commenced with the appointment of the CEOand, following that, the appointment
of the strategic business unit (SBU)leaders and similar posts. The SBUleaders were permitted
to propose individuals for appointment to their units. Any remaining vacancies were to be
advertised and other staff could apply.
3.1 Give a broad outline of the step-by step process to be followed (in terms of the Labour
Act 11 of 2007) when an employer needs to reduce the workforce for economic or
technological reasons.
(7)
3.2 The provisions regarding notice (or pay in lieu of notice) apply also in the case of
dismissals based on operational requirements. In the absence of an agreement
regulating the period of notice of an employee, the provisions of the Labour Act 11 of
2007 shall apply. Briefly set out these provisions.
(3)
[10]
QUESTION 4
The Namibia Public Workers Union (NAPWU) is seeking a salary increase of 16 % for all
employees employed by the Namibian Broadcasting Corporation (NBC). NBC is prepared to
offer an 8% increase. The parties have reached a deadlock and a dispute is declared.
Answer the following questions:
4.1 Name and define the type of dispute between the parties.
(2)
4.2 NAPWU intends to call out a strike action. Advise the officials of NAPWU of all the legal
requirements that must be met before the workers could actually go on strike. (6)
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4.3 The workers would like to know whether they are entitled to any payment during the
period that they are on strike.
(2)
4.4 Suppose the workers commenced with a legal strike action, however, during this time
some of the strikers became very violent and damaged company property. Advise the
NBCwhether they have any claim against the trade union and/or workers. Discusswith
reference to the general rule and exceptions applicable.
(3)
4.5 Briefly discuss whether the non-striking workers may refuse to do the work of the
striking workers.
(2)
[15]
QUESTION 5
5.1 In terms of the Labour Act, conduct where an employer changes a term or condition
of a contract of employment is considered an unfair labour practice. Changesto terms
and conditions of a contract of employment are, however, allowed in two
circumstances. Briefly list these circumstances.
(2)
5.2 One of the major changes brought about by the Labour Act 11 of 2007 lies in the area
of alternative dispute resolution systems in the form of arbitration and conciliation.
Briefly distinguish between these alternative dispute resolution procedures.
(4)
5.3 As a general rule, a party to a dispute is not allowed to bring a legal practitioner as
his/her/its representative to a statutory arbitration procedure.
Set out the circumstances in which a party will be allowed to have a legal practitioner
as a representative.
(4)
[10]
QUESTION 6
Dr Cobra is a medical doctor from Cuba, employed at a private medical centre "The Health
Centre (Pty) Ltd." in Oshakati, busy with the second year of a three-year fixed term contract.
Last month she applied for and succeeded in her application for a job at the Roman Catholic
Hospital in Windhoek. She is very happy with the job offer, more so because she could now
join the rest of her family, who are all living in Windhoek. Today, she submitted a 24-hour
resignation letter to her employer.
6.1 Dr Cobra wants your advice on the death benefit payable in terms of the Social Security
Act 34 of 1994, as amended. She specifically wants to know whether her brother would
qualify as a "dependant" in terms of the said Act, as her extended family will come to
live with her once she has relocated to Windhoek.
(2)
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6.2 One month after Dr Cobra commenced duties in Windhoek, she contracted a hospital-
acquired infection that is seriously affecting her heart function.
Advise Dr Cobra on the following aspects in terms of the Social Security Act 34 of 1994,
as amended:
{a) Requirements to qualify for benefits in general and sick leave benefits specifically.
(4)
{b) Other benefits payable to qualifying employees.
{2)
6.3 Dr Cobra wants to know whether she will be entitled to receive a disability pension in
terms of the Employees' Compensation Act 30 of 1941 if she contracts a disease arising
out of and in the scope of her employment?
{2)
[10]
QUESTION 7
A&D Chemicals {Pty) Ltd. {A&D) is a manufacturing concern, producing chemicals necessary
for pain suppression. It is the only concern in Namibia. The company has grown from a family-
owned business into a very large organisation, now listed on the Namibian Stock Exchange.
However, members of the original family are still employed in senior managerial positions and
the organisational style remains paternalistic.
The Managing Director believes that he needs to do something about equity. All employees
are white and the majority are males; there are, however, a few female secretaries and clerks.
Answer the following questions:
7.1 Does A&D legally have to comply with the provisions of the Affirmative Action
{Employment) Act 29 of 1998?
{2)
7.2 Affirmative action is defined in the Affirmative Action {Employment) Act 29 of 1998 as
a " ...set of affirmative action measures designed to ensure that persons in designated
groups enjoy equal employment opportunities ...".
List the "designated groups" who are to benefit by the implementation of affirmative
action measures.
{3)
[S]
GOOD LUCK!!
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Grand Total: 100