Direct Request (CEACR) - adopted 2018, published 108th ILC session (2019)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Vanuatu (Ratification: 2006)

Other comments on C087

Direct Request

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Article 2 of the Convention. Right of employers and workers to establish and join organizations. Prison service workers. The Committee had previously noted that prison service is excluded from the application of the Trade Unions Act (TUA) by virtue of section 55. The Committee notes the Government’s indication that since August 2016 staff of the correctional centre are no longer under the Police Service Commission but under the Public Service Commission and thus are covered by the Public Service Act. It further notes with interest that, pursuant to section 40 of the Act, correctional services employees may belong to a Public Service Staff Association, or organization representing the interests of employees, whether specifically in the public service or otherwise.

Excessive powers of the Registrar. The Committee had previously noted that the Registrar can refuse registration on the grounds that the union is “formed or likely to be used for unlawful purposes” and considered that this type of issue should be addressed by judicial review instead. The Committee notes the Government’s indication that section 9 of the TUA allows the applicant to appeal the decision of the Registrar in the Supreme Court. The Committee had also noted that the Registrar could refuse registration on the grounds that “some other trade union already registered is adequately representative of the whole or of a substantial proportion of the interests in respect of which the applicants seek registration” (which can amount to trade union monopoly). The Committee recalls that it is important for workers to be able to change trade union or to establish a new union for reasons of independence, effectiveness or ideological choice. Consequently, trade union unity imposed directly or indirectly by law is contrary to the Convention (see 2012 General Survey on the fundamental Conventions, paragraph 92). The Committee once again requests the Government to inform it of the measures taken to amend the legislation so as to ensure that trade union pluralism remains possible in all cases.

Employers’ right to establish and join organizations of their own choosing. The Committee had previously noted the lack of legal recognition of the right of employers to join and establish organizations of their own choosing, and the legislative requirement that made membership of employers compulsory in the chamber of commerce of their region under the Vanuatu Chamber of Commerce and Industry (VCCI). The Committee notes the Government’s indication that: (i) the Vanuatu Chamber of Agriculture Act provides for membership of farmers in the Vanuatu Chamber of Agriculture without indicating whether membership is compulsory; and (ii) the Chamber of Commerce and Industry Act provides for compulsory membership in the VCCI when acquiring a business licence. The Committee requests the Government to amend the legislation so as to ensure that employers have the right to join and establish organizations of their own choosing for furthering and defending their interests on socio-labour issues.

Articles 3 and 5. Right of organizations to organize their administration and activities and to formulate their programmes. Right of organizations to affiliate with international organizations of workers and employers. The Government indicates that some of the following legislative provisions, which raise issues of compatibility with the Convention, will be discussed at the Tripartite Labour Advisory Council (TLAC). The Committee requests the Government to provide information on the outcome of the discussions in relation to the following previously raised issues:

-Excessively detailed legal regulations, in particular on the consequences of arrears in union contributions or on quorums for meetings (paragraphs 18–21 of the Schedule of the TUA), the definition of which should be left to the organizations’ self-regulatory autonomy.
-Undue restrictions to participation: voting and membership in union committees is denied for those under 18 years of age and parents may object to the union membership of those under 16 years of age; only those normally employed and ordinarily resident in the country may vote; and workers cannot be voting members in more than one union (sections 24 and 26 of the TUA).
-Undue restrictions to union office: union officers need to have been engaged for a period of not less than one year in the profession or trade (at least a proportion of the officers should be exempted from this kind of occupational requirement); and workers cannot be officers in two different unions (sections 26 and 27 of the TUA).
-Excessively broad rights given to any person having an interest in the funds of the trade union to inspect the books (this could be restricted to a percentage of union members or to a judicial order) and to access the list of names of trade union members (their confidentiality should be safeguarded) (paragraph 11 of the Schedule of the TUA).
-Undue limitations on the purposes for which union funds can be used, inappropriately subjecting some of these uses to the prior approval by the Minister (section 32 of the TUA); excessively broad prohibition on the use of funds for political purposes (section 33); use of funds to pay fines only when imposed on the union (not when imposed on trade union leaders in the performance of their duties); and broad inspection and intervention powers of the Registrar, in particular as to financial supervision of accounts and access to the books and other documents of an organization (sections 32, 33 and 37 of the TUA).
-Excessively broad powers of public authorities to intervene in strikes, in particular when they consider that these may be “gravely injurious to the national economy” (sections 26–29 and 34 of the Trade Disputes Act), a comprehensive notion that is not defined further.
-Under section 50 of the TUA, organizations are denied the right to join or associate with outside organizations, or the ability to receive funds from them, as they are subject to the written consent of the Minister.

Legislative developments. In its previous comments, the Committee had noted the Government’s indication that tripartite constituents, through the TLAC, were in the process of adopting the Employment Relations Bill (ERB) 2006, which, in the Committee’s view, addressed satisfactorily a number of the above-mentioned legislative provisions raising issues of compatibility with the Convention. The Committee takes note of the Government’s indication that, due to disagreements expressed by the social partners at the TLAC, it has been decided not to pursue further the ERB 2006. The Government indicates that after consultations held by the VCCI and the Vanuatu Council of Trade Unions, it has been agreed to revise the Employment Act by incorporating the necessary provisions in order to give effect to the Convention. The Committee takes note of the Government’s indication that it will take all necessary measures to bring the employment legislation into conformity with the Convention in full consultation with the social partners. The Committee trusts that the revision of the relevant legislation will ensue without further delay and requests the Government to provide information on all developments in this regard.