Direct Request (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee notes the report of the Government, and the draft Public Service (Negotiating Machinery) Bill.

Article 4. Scope of public service collective bargaining. The Committee notes the draft Public Service (Negotiating Machinery) Bill, section 4 of which provides for the establishment of a Joint Staff Council (“the Council”) comprised of eight persons working in the public service trade unions, eight representatives of the Government, and two persons – the Chairperson and Vice-Chairperson – who shall be appointed by the President.

The Committee notes that section 6(1) of the draft Bill provides for the functions of the Council, and that section 6(1)(d) in particular empowers it “to negotiate on matters relating to the terms and conditions of service of public employees generally or to specified categories of employee”. The Committee notes, however, that under section 6(2)(a) the Council shall not have competence over matters relating to minimum wages, or to matters for which the Minimum Wage Board or Wages Council has been appointed.

The Committee thus observes that it is unclear whether section 6(2)(a) prevents the Joint Staff Council from negotiating wages in general, or just the minimum wage. It recalls, in this connection, that the special characteristics of the public service require some flexibility in applying the principle of collective bargaining, so that legislative provisions, which allow Parliament or the competent budgetary authority to set upper and lower limits for wage negotiations, are compatible with the Convention, provided that a significant role is left to collective bargaining, and that the authorities respect the agreement concluded (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 263). Accordingly, the Committee requests the Government to provide clarification on the scope of the Council’s mandate to negotiate the wages of public service employees under sections 6(1)(d) and 6(2)(a). The Committee also requests the Government to provide information on the Minimum Wage Board and the Wages Council, and to indicate in particular whether these bodies make provision for the representation and input of public employees’ organizations in the wage-fixing process.

The Committee further notes that under section 6(2)(b) of the draft Public Service Bill, the Council is not competent over matters concerning the appointment or non-appointment, disciplinary control, or removal from office of any individual public servant or employee. In this connection the Committee, recalling that measures taken unilaterally by the authorities to restrict the scope of negotiable issues are often incompatible with the Convention (see General Survey, op. cit., paragraph 250), requests the Government to consider amending section 6(2)(b) so as to grant to organizations of public employees not engaged in the administration of the State the right to collectively bargain over the abovementioned issues or, at a minimum, on those aspects concerning the fairness of any related proceedings.

Administrative approval of collective agreements. The Committee notes that, where an agreement is reached by the Joint Staff Council in relation to any dispute regarding the terms and conditions of service of public employees, section 11(2)(b) of the draft Public Service Bill empowers the Minister to make such modifications to the agreement as the Chairperson and Vice-Chairperson of the Council find necessary and consent to. If the Chairperson and Vice-Chairperson do not consent to the Minister’s modifications, section 11(4) provides that the matter shall be regarded and treated as a dispute and referred by the Minister back to the Council for further negotiations. Under these circumstances, the Committee recalls that legislation providing that agreements must be submitted for approval to the administrative authority before coming into force is not compatible with Convention No. 98, unless it merely stipulates that approval may be refused 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, op. cit., paragraph 251). The Committee therefore requests the Government to amend section 11 of the draft Public Services Bill so as to remove the Minister’s power to modify collective agreements concluded by the Joint Staff Council. Noting further that section 11 refers only to negotiated agreements for disputes regarding terms and conditions of service, the Committee asks the Government to provide clarification on the scope of the Joint Staff Council’s mandate to negotiate matters that are not subject to dispute.

Duration of collective agreements. The Committee notes that section 11(5) of the draft Bill states that “every award made [i.e. every agreement accepted by the Minister] shall be final and binding upon the Government and the operational service employees to whom the agreement relates for a period of 12 months beginning on the date on which the award was made”. Section 11(6), moreover, provides that no matter already covered by an agreement shall be discussed by the Council or placed on the Council’s agenda for a period of 12 months from the date on which the agreement was made. The Committee considers that legal provisions setting forth in a rigid manner the lengths of time negotiated agreements shall be in force for, and during which negotiations on the matters contained in these agreements may not take place, run counter to the principle of free collective bargaining. Accordingly, it asks the Government to amend section 11(5) of the draft Bill so as to allow the interested parties to negotiate a longer duration for the agreements they reach, and to amend section 11(6) so as to not prohibit the parties, if they wish, from renegotiating matters already covered by agreements.

Compulsory arbitration The Committee notes that several provisions of the draft Public Service Bill comprise a system of compulsory arbitration. Section 12 of the draft Public Service Bill provides that, where the Joint Staff Council is unable to reach agreement on any dispute, the Chairperson and Vice-Chairperson shall submit a report to the Minister containing the minutes of the Council’s deliberations and a memorandum on the subject matter of the deliberations. The Minister may then refer the dispute back to the Council for further negotiation under section 13(a), or refer the dispute to the court under section 13(b). Section 15 provides that where the Minister has referred the dispute to the court, the court shall consider the matter and submit a report in respect thereof to the Minister. Section 17(1) provides that the Minister may then submit the report, together with any comments he may wish to make thereon, to the President of the Joint Staff Council, who, under section 17(2) may then issue an award on the dispute that is binding for a period of 12 months (section 19). With respect to the above provisions, the Committee recalls that compulsory arbitration is acceptable only for: (1) workers employed in essential services in the strict sense of the term, that is to say services whose interruption would endanger the life, personal safety or health of the whole or part of the population; and (2) public employees engaged in the administration of the State. Its imposition, at the discretion of the public authorities and leading to a final award which is binding upon the parties concerned, is otherwise not compatible with the principle of the voluntary negotiation of collective agreements provided for in Article 4 of the Convention (see General Survey, op. cit. paragraphs 254-259). The Committee notes, moreover, that the ICFTU confirms these restrictions on collective bargaining to fix the terms of employment of public service employees. In these circumstances, the Committee requests the Government to amend the above-noted provisions so as to remove compulsory arbitration for public employees who are not engaged in the administration of the State.