Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

Article 3 of the Convention. In its previous comments, the Committee referred to section 198F of the Labour Code which expressly grants specific advantages (access to premises to meet representatives of the employer, to recruit members, to hold a meeting of members and to perform any trade union functions in terms of a collective agreement) only to an authorized officer or official of a trade union that represents more than 35 per cent of the employees, as well as to section 198G(1) of the Labour Code that specifies that only the members of a registered trade union, which represented more than 35 per cent of the employees, of an employer that employed ten or more employees, were entitled to elect workplace union representatives. The Committee had recalled that the workers’ freedom of choice may be jeopardized if the distinction between most representative and minority unions results, in law or in practice, in granting privileges such as to influence unduly the choice of organization by workers (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 98). The Committee had requested the Government to indicate the manner in which sections 198F and 198G(1) influence the workers’ choice of their trade union organization, as well as their right to elect their representatives. The Committee notes that the Government indicates in its report that these issues will once again be brought to the attention of the National Advisory Committee on Labour which is currently closely examining the revised Labour Code. In these circumstances, the Committee requests the Government to indicate, in its next report, the progress made with respect to the abovementioned issue.

Labour Code (essential services). In its previous observation, the Committee requested the Government to transmit a copy of the legislation setting out the essential services. In this respect, the Committee notes that the Government has transmitted the Schedule of the Labour Code (Essential Services) Regulations 1997 which provides that the following services should be regarded as essential for the purposes of the Labour Code: health services, hospital services, electricity services, water supply services, sanitary services, telecommunications services, air traffic control services, fire prevention and extinguishing services, transport services necessary to the operation of any of the services abovementioned. Furthermore, the Committee takes due note that the Government indicates that the law provides for alternative compensatory machinery in the form of arbitration meant for speedy resolution of disputes in the essential services.

Public Services Act. Restrictions on the exercise of activities. In its previous comments, the Committee had requested the Government to amend section 19 of the Public Services Act (2005) so as to ensure that the prohibition of the right to strike in the public service is limited to public servants exercising authority in the name of the State. The Committee notes that the Government indicates that the Ministry of Public Service has been engaged in some discussions regarding the comments made by the Committee, and while no amendments have been put in place yet, the Ministry of Public Service is of the opinion that there is need for more discussion and training within the public service for employees and employers to understand the content and consequences of the right to strike. The Committee therefore requests the Government to indicate, in its next report, the progress made with respect to the abovementioned issue and it hopes that the Government will make every effort to take the necessary action in the very near future.

Compensatory guarantees. With respect to the public servants who may be deprived of the right to strike under the Public Services Act, taking into account the comments mentioned in the preceding paragraph, the Committee had also requested the Government to establish compensatory guarantees, such as arbitration machinery for those workers who may be deprived of the right to strike. The Committee notes that the Government indicates in its report that in terms of compensatory guarantees section 18 of the Public Services Act provides for arbitration to resolve disputes, while the arbitration is only binding in cases where the dispute arises from an essential service. The Government has indicated that in other disputes parties have to agree to their dispute being referred to arbitration. Section 17 of the Public Services Act provides for conciliation of disputes of interest but the decision shall not be binding on the parties; however, under the Code of Good Practice 2008, an unresolved dispute of interest shall be referred to arbitration or tribunal for final determination. The Government realizes that these sections contain limitations and therefore the Ministry of Public Services is looking into it for possible amendments to the law. The Committee therefore requests the Government to provide information on any development in this regard.

The right to form federations and confederations. Finally, the Committee had requested the Government to ensure that public officers’ associations established under the Public Services Act are guaranteed the right to establish federations and confederations and affiliate with international organizations. The Committee takes note of the Government’s indication that according to the Ministry of Labour, due to the nature of the service provided by the state public officers, their associations cannot affiliate with trade union federations and confederations. The Committee recalls that a provision of national law prohibiting organizations of public officials from adhering to federations or confederations is difficult to reconcile with Article 5 of the Convention. The Committee therefore requests the Government to take the necessary measures to ensure the respect of the abovementioned principle and to provide information in its next report on the measures adopted in this regard.