Observation (CEACR) - adopted 2003, published 92nd ILC session (2004)

The Committee notes the Government’s reports and the discussions in the Conference Committee on the Application of Standards in June 2003. The Committee notes that the Government has not yet replied to the request of the Conference Committee on the Application of Standards concerning an ILO direct contacts mission. The Committee notes the adoption of the Labour Relations Amendment Act No. 17/2002 and the Statutory Instrument 131/2003.

1. Recent legislative reform. The Committee notes with satisfaction that the following previously raised issues have been resolved under the new legislation:

-  Protection of workers’ organizations against acts of interference of employers’ organizations (or their agents) and vice versa is ensured by the Statutory Instrument 131/2003, which prohibits these acts and provides for sanctions such as fines and/or imprisonment in cases of infringement.

-  According to the new section 93(5) of the Labour Relations Act, compulsory arbitration is possible only with the agreement of the parties concerned or when conciliation procedures have failed in the essential services.

-  According to section 2A(3) of the Labour Relations Act, the Act prevails over any legislation. Therefore, as indicated by the Government, workers engaged in the framework of the Lotteries Act and others, as mentioned in section 14(c) and (h) of the Public Service Act (with the exception of those employed in the prison service) are now governed by the Labour Act and enjoy the rights provided for in the Convention.

2. Collective bargaining in the public service. The Committee notes that in reply to the previous request of the Committee, the Government states that teachers, nurses and other civil servants not directly engaged in the administration of the State negotiate collective agreements. It further notes the information sent by the Government concerning the number of collective agreements covering these categories of workers as well as the number of workers covered by such agreements.

3. Previously commented serious infringements of the Convention. Noting that the Government repeats the same arguments as in its previous reports, the Committee once again requests the Government to amend the following sections:

-  Sections 25(2), 79 and 81 of the Labour Relations Act providing for a requirement for collective agreements to be submitted for ministerial approval in order to ensure that their provisions are not inconsistent with the national laws and that they are not inequitable to consumers, to members of the public generally or to any other party to the collective bargaining agreement. The Committee notes the Government’s statement in this respect that it is in the national interest to protect consumers and the general public, given the level of the economic development of the country. The Committee once again recalls that the power of the authorities to approve collective agreements is compatible with the Convention, provided that the approval may be refused only if the collective agreement has a procedural flaw or does not conform to the minimum standards laid down by general labour legislation (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 251).

-  Section 25(1) of the Labour Relations Act, according to which if workers’ committees reach an agreement with the employer, it must be approved by the trade union and by more than 50 per cent of the employees. The Committee notes the Government’s indication to the effect that this issue was addressed by the amendment of section 23, which ensures that if a trade union is registered to represent the interests of not less than 50 per cent of the employees at the workplace, every member of the workers’ committee shall be a member of the trade union concerned. While recognizing that certain progress was made in this respect, the Committee underlines that when the indicated percentage is not reached, representatives of non-unionized workers can negotiate even if a trade union exists at the enterprise. The Committee recalls that negotiations, through direct settlement or agreements signed between an employer and the representatives of a group of non-unionized workers, when a union exists in the undertaking, do not promote collective bargaining as set out in Article 4 of the Convention, which refers to the development of negotiations between employers or their organizations and workers’ organizations.

-  Sections 17(2) and 22 of the Labour Relations Act, concerning the right of the Minister to fix a maximum wage and other conditions of employment by statutory instrument prevailing over any agreement or arrangement. Noting the Government’s statements to the effect that it is in the national interest to protect consumers and the general public and that therefore it considers that these sections are not contrary to Article 4 of the Convention, the Committee once again recalls that measures taken unilaterally by the authorities to fix the conditions of employment and therefore restrict the scope of negotiated issues are incompatible with the Convention.

-  As concerns the prison staff, the Committee notes that according to the Government, the prison staff, being a disciplined force, is excluded from the scope of the Public Service Act. The Committee further notes section 3(2)(b) and 3(5)(a) of the Labour Relations Act, which excludes members of a disciplined force from the application of the Act. The Committee concludes that this category of workers does not enjoy the rights afforded by the Convention and therefore requests the Government to amend its legislation so as to ensure that prison workers enjoy the right to organize and to collective bargaining.

The Committee requests the Government to keep it informed of the measures taken or envisaged in respect of the abovementioned points.