Observation (CEACR) - adopted 1995, published 83rd ILC session (1996)

The Committee takes notes of the information contained in the Government's report and recalls that its previous comments concerned 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 when the conditions relating to the numbers in a trade union and the votes cast in a ballot are not satisfied.

In line with its previous reports, the Government indicates that the actual system of designation of bargaining agent and of collective bargaining receive the full support of the social partners and that no reason would justify the modification of the legislation in this regard.

While noting these statements, the Committee recalls that the Committee on Freedom of Association has examined a complaint from the workers' organizations, to which the right to organize a ballot to show that their union was qualified to bargain with their employer had been refused by the Minister, leaving the workers concerned without any right of appeal to renew their application for the organization of a ballot. The grounds then invoked by the Government were that they represented fewer than 40 per cent of the workers in the undertaking (see Case No. 1158 examined by the Committee on Freedom of Association in its 226th Report, paras. 303 to 323, and its 230th Report, paras. 85 to 102).

Under these circumstances, the Committee reiterates 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 exists one or more legally constituted unions, the legislation should recognize 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 urges the Government to indicate the measures that have been taken or are envisaged to bring its legislation into conformity with the Convention (i) to eliminate the discretionary power of the Minister and to guarantee the objectivity of the recognition procedure, and (2) 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.