Direct Request (CEACR) - adopted 2010, published 100th ILC session (2011)

The Committee notes 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:

The Committee had noted that according to the Government, which stated that the fifth draft Industrial Relations Bill, which incorporates technical inputs provided by the ILO, has been placed before the National Tripartite Consultative Council for its endorsement and referral to the National Executive Council before submission to Parliament.

The Committee had noted that the several sections of the Industrial Organizations Act [35(2)(b) (concerning qualifications for trade union membership); 22(1)(g) (concerning refusal of registration to an industrial organization); 55 (concerning cancellation of an industrial organization’s registration); 39(1)(b) and (d) (concerning qualifications for serving as an officer of an industrial organization); 39(4) (concerning the removal of trade union officers); and 5(1), 40, 58 and 60(1)(b) (all granting excessive powers to the registrar to investigate union accounts and demand information)], commented upon in its previous direct request will be repealed by the passage of the fifth draft bill. The Committee had noted that section 257 of the fifth draft Bill repeals the Industrial Organizations Act, the Industrial Relations Bill, the Industrial Relations (Amendment) Act of 1992, the Industrial Relations (Amendment) Act of 1998, the Public Service Conciliation and Arbitration Act, and the Teaching Service Conciliation and Arbitration Act. The Committee therefore requests the Government to submit a copy of the fifth draft Industrial Relations Bill upon its adoption and trusts that, upon adoption, the fifth draft Bill will give full expression to the complete provisions of the Convention, including the comments of the Committee.

Article 2 of the Convention. Right of workers and employers without distinction whatsoever to establish and join organizations of their own choosing and without previous authorization. In its previous comments, the Committee noted that section 98(2)(b) of the third draft of the Industrial Relations Bill provides that a person who “has been convicted of a criminal offense justifying imprisonment by a court of law” may not become a union member. The Committee had noted the Government’s statement that the Bill is still going through the review process. In this regard, the Committee recalls that conviction for an act, the nature of which is not such as to call into question the integrity of the person concerned and is not such as to be prejudicial to the performance of trade union duties should not constitute grounds for disqualification from trade union office (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 120). The Committee recalls that denying union membership to persons convicted of a criminal offence is incompatible with Article 2 of the Convention. The Committee once again expresses the hope that the fifth draft Industrial Relations Bill will take into account the above-stated principle.

Trade union registration. The Committee previously noted that subsection (3) of section 118 of the third draft Industrial Relations Bill allows for the cancellation of an organization’s registration as a penalty for prohibited payments by individual officers. The Committee had noted the Government’s indication that section 199 of the fifth draft Bill no longer allows cancellation or deregistration as a penalty for prohibited payments, but rather allows the Industrial Relations Commission to, on its own motion, hold trade union officers personally liable for payments by the organization that are applied to a court-ordered fine or penalty imposed on any individual. The Committee considers that trade unions should be free to decide whether to pay the fines assessed to their officers. In these circumstances, the Committee requests the Government to take the necessary measures to abrogate section 199 of the fifth draft Industrial Relations Bill.

Article 3. Right of workers’ and employers’ organizations to draw up their constitutions and rules, to elect their representatives in full freedom and to organize their administration and activities. The Committee recalls that in its previous comments, it requested the Government to amend sections 103, 121 and 123 of the third draft Industrial Relations Bill to ensure that the supervision of an organization’s finances is limited to the obligation to submit periodic financial reports or on the basis of a complaint from a certain percentage of the workers. The Committee recalls that it additionally requested the Government to amend sections 22 and 23(1) of the Industrial Relations Act which presently grant excessive powers to the registrar to investigate union accounts and demand information. The Committee notes the Government’s statement that in the fifth draft Bill it has removed its legal authority to investigate the accounts of industrial organizations. The Committee had noted the indication by the Government that sections 103, 121 and 123 have been amended and are now governed by article 4 of the fifth draft Bill. The Committee expresses the hope that article 4 of the fifth draft Bill ensures that the supervision of an organization’s finances is limited to the obligation to submit periodic financial reports or on the basis of a complaint from a certain percentage of the workers.

The right of organizations freely to organize their activities and to formulate their programmes. The Committee previously noted that sections 150, 151 and 152 of the third draft Industrial Relations Bill, when read in concert, allow for instances of compulsory arbitration. The Committee also previously requested the Government amend section 150 of the draft Bill in order to ensure that conciliation proceedings are concluded within a reasonable period of time. The Committee had noted the Government’s indication that it has amended the draft Bill to provide several steps of mediation prior to the referral of the case to arbitration before the newly created Industrial Relations Commission. The Committee requests the Government to take the necessary measures to amend sections 150, 151 and 152 to ensure that compulsory arbitration is at the request of both parties involved in a dispute, or if the strike in question may be restricted, even banned, i.e. in the case of disputes in the public service involving public servants exercising authority in the name of the State or in essential services in the strict sense of the term, namely those services whose interruption would endanger the life, personal safety or health of the whole or part of the population. In addition, the Committee requests the Government to indicate the established period of time for mediation provided for in the fifth draft Bill.