Observation (CEACR) - adopted 1992, published 79th ILC session (1992)

The Committee takes note of the information contained in the Government's report and recalls that its previous comments dealt with the following points:

- the broad powers of the Minister to cause a ballot to be taken to choose the bargaining agent (section 5 (1) of the Labour Relations and Industrial Disputes Act, 1975 (No. 14) and sections 3 (1) and 3 (2) of the regulations issued thereunder), without the right of appeal;

- the denial of the right to negotiate collectively in the case of the workers in a bargaining unit when these workers do not amount to more than 40 per cent of the unit or when, if the former condition is satisfied, a single union that is engaged in the procedure of obtaining recognition does not obtain 50 per cent of the votes of the workers in a ballot that the Minister has caused to be taken (section 5 (5) of Act No. 14 of 1975, and section 3 (1)(d) of the regulations issued thereunder).

For several years, the Committee has been requesting the Government to take measures to amend the provisions concerning the procedure for designating a union as bargaining agent so as to eliminate the discretionary powers of the Minister and to enable the workers of a bargaining unit to bargain collectively, even where the conditions relating to the numbers in a trade union and the votes cast in a ballot are not satisfied.

In its report, the Government indicates that in its view the criteria for determining bargaining rights are objective since the Regulations of the Labour Relations and Industrial Disputes Act are fairly rigid and explicit.

The Government adds that if minority representation were allowed to occur, it is very likely that chaos would result given the multiplicity of trade unions that now exist in its country. It asks moreover what would be the minimum percentage of membership required for a trade union to have bargaining rights. The Government states that in any event, the system of recognition has worked reasonably well since its inception.

While noting these statements, the Committee is bound to point out that where conditions concerning the number of members of a trade union or the balloting of workers in a bargaining unit, in the event of a vote, are such that the workers of the unit concerned may be deprived of the right to collective bargaining, when there exist one or more legally constituted unions, the legislation should recognise the right of this or these unions to bargain at least on behalf of their own members. Moreover, the Committee recalls that, if under a system of nominating an exclusive bargaining agent, no union can be designated as representing the required percentage, collective bargaining rights should be granted to the most representative union in the unit.

The Committee hopes that the amendment to the labour legislation will be along the lines of its comments and, once again, urges the Government to indicate the measures that have been taken or are envisaged to guarantee the objectivity of the recognition procedure and to ensure that the union representing the largest number of workers, even if these do not amount to 40 per cent of the workers in the bargaining unit or the majority of votes in a ballot, is granted collective bargaining rights concerning terms and conditions of employment, at least on behalf of its own members.