Direct Request (CEACR) - adopted 2005, published 95th ILC session (2006)

The Committee notes with regret that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

1. Article 5 of the Convention. The Committee notes that under section 25 of the Trade Unions and Employers’ Organisations (Registration, Recognition and Status) Act, the tripartite body entrusted with the certification of the representative trade unions has the authority prior to deciding the issue of representativeness, to determine the suitability of the bargaining unit in respect of which an application for certification has been made, taking into account the community of interests among the employees in the bargaining unit, the nature, type and scope of their duties and any view expressed by the employer, the trade union or the employees. The Committee also notes that according to section 25(3), the tripartite body may, before granting any certification to a trade union, include additional employees to the bargaining unit, or exclude some employees therefrom in order to make the unit more suitable as a bargaining unit. The Committee considers that section 25 gives the tripartite body excessive discretion in deciding how to define a bargaining unit, a question which should be left to the workers’ organizations and employers concerned, and thereby does not afford adequate safeguards against interference in the process of certification. The Committee recalls that where the employer must recognize the existing trade union under a system of compulsory recognition, it is important for the determination of the trade union in question to be based on objective and pre-established criteria so as to avoid an opportunity for partiality or abuse (General Survey of 1994 on freedom of association and collective bargaining, paragraph 240) in particular, through the use of vague and abstract expressions like "suitability" or "community of interests". The Committee therefore requests the Government to take all necessary measures as soon as possible in order to amend section 25 of the Trade Unions and Employers’ Organisations (Registration, Recognition and Status) Act in accordance with the above principles.

2. The Committee also notes that according to section 27(2) of the Act the tripartite body shall certify the trade union as representative if the results of a survey show that the trade union is supported by at least 51 per cent of the employees comprising the unit. In this respect, the Committee considers that problems may arise when the law stipulates that a trade union must receive the support of more than 50 per cent of the members of a bargaining unit to be recognized as a bargaining agent, since a majority union which fails to secure this absolute majority is thus denied the possibility of bargaining. The Committee considers that when no union covers more than 50 per cent of the workers, collective bargaining rights should be granted to all the unions in this unit, at least on behalf of their own members (General Survey, op. cit., paragraph 241). The Committee therefore requests the Government to take all necessary measures to amend section 27(2) of the Trade Unions and Employers’ Organisations (Registration, Recognition and Status) Act in accordance with the above principle.

3. The Committee finally notes from the Government’s information that the only branches of activity where collective bargaining has not been made possible are commerce, domestics and transport. The Committee requests the Government to indicate any measures taken or contemplated in order to promote collective bargaining in these sectors.