Legal blow for Nanu nurses’ recognition

EFFORTS by the Namibia Nurses’ Union (Nanu) to get Government recognition as the sole bargaining unit representing nurses employed in Namibia’s public health service received a major blow when the union lost the case in the Labour Court yesterday.

The union approached the court to determine whether a union can define a bargaining unit within a bargaining unit.
The Government already has an exclusive bargaining agreement with the Namibia Public Workers’ Union (Napwu) but Nanu claimed it had the support of the majority of nurses and must thus represent them.
Nanu wants to take up nurses’ concerns about overtime payment but cannot do so until it is recognised by Government.
At the moment, Napwu has bargaining status for all civil servants except teachers, the Police, central intelligence staff and the defence force.
Nantu applied for recognition with the Office of the Prime Minister in December 2006 but was told the Government already had an agreement with Napwu and would be in breach if it also recognised them.
In the same reply, Government advised Nanu to approach the Labour Court to obtain a court order whereby the nurses’ recognition of Napwu can be withdrawn.
‘Only thereafter can the Government recognise Nanu as an exclusive bargaining agent for nurses,’ the Office of the Prime Minister said.
Nanu saw that as a refusal by the Government to recognise them and approached the Labour Court.
Judge Louis Muller said the Labour Act provides for the recognition of only one union as an exclusive bargaining agent.
‘In this instance it is not a blatant refusal, because the first respondent [Office of the Prime Minister] indicated that the application cannot be entertained for the reasons provided in the letter. The first respondent clearly has not even considered the application and could not refuse or grant it,’ Muller ruled.
Therefore, he said the Government was not ‘unreasonable at all’ in its attitude towards the Nanu application as it also advised the union which route it could take.
‘This is not what the applicant did when it approached the Court. What it did was to approach the Court to set aside what it called a ‘decision’ by the first respondent,’ he said.
According to him the Nanu application had the ‘wrong foundation’ and the union’s lawyers, Shikongo Law Chambers, filed an amended notice without providing facts.
He said the Government agreement with Napwu effectively barred them from considering Nanu’s application.
In its application Nanu even challenged the Government to organise a ballot to test whether they in fact have the majority as they claimed.
However, Muller said that submission was ‘untenable’.
‘Even if the application was refused, which I do agree with, it was not done on the basis of non-majority representation. Such an order cannot be granted,’ Muller said as he rejected the Nanu request.
Nanu lawyers submitted that the Labour Court can come to the rescue of the nurses by ordering that the Government deal with them like they do with the Police and Prisons – separately.
Muller said Nanu should have negotiated that – as a bargaining agent – with the Government first and only approached the Labour Court for a review ‘if the first respondent unreasonably refused to do that’.
However, in the current form Nanu cannot negotiate anything with the Government because of the agreement it has with Napwu.
Using the papers before him, Muller said he was unable to comply with Nanu’s request and dismissed the application with costs.
The dispute was started by differences over payment for work done on Sundays and public holidays.
The Nanu leadership decided to take Government to court following nationwide consultations with nurses on whether they should proceed with the action.
The Ministry of Health reduced the rate of payment for nurses on Sundays and public holidays by half from April 1 2006.
Previous Health Permanent Secretary Dr Kalumbi Shangula said earlier that it was done because there were various interpretations of the Labour Act, which had led to overpayment of nurses in the past.
Nanu is adamant that the Labour Act says the rate must be double the normal hourly rate. – christof@namibian.com.na