Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Kiribati (Ratification: 2000)

Other comments on C087

Observation

Direct Request

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Article 2 of the Convention. Right of public employees, without distinction whatsoever, to establish and join organizations of their own choosing. In its previous comments, the Committee had requested the Government to take measures to amend the National Conditions of Service (NCS), which provides that all employees are free to join a “recognized” staff association or union, given that there is no legislative provision relating to union recognition. The Committee notes the Government’s indication that the Kiribati Public Service Office is currently working on amending the NCS and that consideration will be given to reviewing section L.7 so as to ensure its consistency with the Employment and Industrial Relations Code (EIRC). The Committee trusts that the reference to “recognized” staff associations or unions will soon be removed from section L.7 of the NCS for the purposes of legal certainty and requests the Government to provide information on the progress made in this respect.

Article 3. Right of workers’ and employers’ organizations to organize their activities. The Committee had previously observed that the following provisions of the EIRC could unduly restrict the right to take industrial action: approval of strike action by a majority of the employees (section 139); declaration of a strike as illegal by the administrative authority (sections 136–139); and penal sanctions in the form of fines for participation in unlawful strikes (sections 136–139 in conjunction with section 152). The Committee requested the Government to consider reviewing the above provisions with a view to ensuring that, in a strike ballot, account is only taken of the votes cast, that the declaration of a strike as unlawful emanates from an independent body and that no penal sanctions in the form of fines are imposed in unlawful yet peaceful strikes. The Committee notes the Government’s indication that while the EIRC of 2015 was amended in 2017, further consultations with the competent authorities and social partners were required in order to ensure that declaration of a strike as unlawful emanates from an independent body and that no penal sanctions in the form of fines are imposed in unlawful yet peaceful strikes. The Committee requests the Government to provide information on the developments in this regard.

While noting that section 139 of the EIRC was amended in 2017, the Committee observes that the required majority remains unchanged. The Committee therefore once again requests the Government to amend section 139(1)(b) of the EIRC so as to ensure that in a strike ballot, account is taken only of the votes cast and asks the Government to provide information on measures taken to that end.

Dispute resolution procedure. In its previous comments, the Committee had noted that pursuant to section 128(2)(a) and (c) of the EIRC, the Registrar may refer a dispute for arbitration if: (a) one or more of the parties request to refer the dispute for arbitration; or (c) if a dispute has been protracted or is tending to endanger or has endangered the personal health, safety or welfare of the community or part of it. The Committee recalled that recourse to compulsory arbitration to bring an end to a collective labour dispute and a strike is only acceptable if it is at the request of both parties involved in the dispute or if the strike in question may be restricted, or even prohibited, that is: (i) in the case of disputes concerning public servants exercising authority in the name of the State; (ii) in conflicts in essential services in the strict sense of the term (that is, services the interruption of which would endanger the life, personal safety or health of the whole or part of the population); or (iii) in situations of acute national or local crisis, and that, accordingly, the existence of protracted disputes and the failure of conciliation are not per se elements which justify the imposition of compulsory arbitration. In this regard, the Committee considered that subsections (a) (the element of compulsion being that one party alone is able to pursue the dispute by arbitration) and (c) (referring to protracted industrial actions) of section 128(2) were likely to make it possible to prohibit virtually all strikes or to end them quickly. The Committee notes the Government’s indications acknowledging the inconsistencies of section 128(2) with the Convention and informing that the issue has been discussed by the Decent Work Advisory Board and will require further consultations with the Attorney General’s Office and the Board to consider future amendments. The Committee further notes that the Government seeks its views on the role of the Registrar in the referral of disputes to arbitration under section 128(2) – determining whether the circumstances in subsections (a) to (c) are met. The Committee considers that the determination of the Registrar should be limited to verifying the existence of the conditions for resorting to compulsory arbitration noted above. The Committee hopes that section 128(2)(a) and (c) of the EIRC will be reviewed in consultation with the social partners with a view to ensuring that compulsory arbitration is possible only in cases that are in line with the Convention. The Committee requests the Government to provide information on developments in this regard.