Direct Request (CEACR) - adopted 2016, published 106th ILC session (2017)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Gambia (Ratification: 2000)

Other comments on C087

Observation

Direct Request

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The Committee notes the observations of the International Organisation of Employers (IOE) received on 1 September 2016 which are of a general nature.

The Committee notes with concern that the Government’s report has not been received. It expects that the next report will contain full information on the matters raised in its previous comments.

Article 2 of the Convention. Right of employers and workers to establish and join organizations of their own choosing without previous authorization. Civil servants, prison officers and domestic workers. In its previous comments, the Committee noted that the Labour Act of 2007 excludes civil servants, prison officers and domestic workers from its scope (sections 3(2)(a), (c) and (d), respectively). With regard to civil servants, the Committee had noted that article 25(e) of the Gambian Constitution guarantees the right of every citizen (including public servants) to freedom of association and that a proposal for the amendment of section 3(2)(a) of the Labour Act would be made in due course. With regard to domestic workers, the Committee noted the Government’s statement that proposals would be made by the Ministry of Trade, Industry and Employment to the Attorney General’s Chambers to amend section 3(2)(d) of the Act. The Committee notes that the Government indicates in its report that the Labour Act of 2007 is in the process of being reviewed to allow the civil servants, the police, the prison officers and the security personnel (except for the army), to enjoy the rights established by the Convention. The Committee notes that no information was provided concerning the domestic workers. The Committee hopes that the legislation review will be finalized in the near future and that all necessary measures will be taken to ensure that civil servants, domestic workers and prison officers enjoy the right to establish and join organizations of their own choosing.

Minimum membership requirement. In its previous comments, the Committee noted that the Labour Act of 2007 maintained a minimum membership requirement of 50 workers for the registration of a trade union (section 96(4)(a)), and requested the Government to lower it to a reasonable level. The Committee notes the Government’s statement that it is proposing an amendment to section 96(4)(a) of the Labour Act to reduce the minimum membership requirement to 25 workers. The Committee hopes that the proposed amendment to section 96(4)(a) of the Labour Act of 2007 will take place in the near future and requests the Government to provide information on any developments in this respect.

Article 3. Right of employers’ and workers’ organizations to organize their administration and to formulate their programmes. In its previous comments, the Committee noted that the Labour Act of 2007 did not reflect its previous comments with regard to the right of the registrar to verify employers’ and workers’ organizations when he or she “is unable to ascertain with certainty the absence of irregularity or fraud” (section 104(1)(b)) and that failure to provide the registrar with any book is subject to a fine and even imprisonment (section 104(5)). It further noted with regret that the new Labour Act maintained the right of the registrar to institute civil proceedings in order to secure payment of arrears in trade union dues (sections 104(2)(b) and 104(7)(c)). The Committee notes that the Government indicates in its report that following a recent seminar, efforts are on the way to amend some areas, including section 104(1)(b) of the Labour Act of 2007. The Committee hopes that in the context of the proposed revision of the legislation all measures will be taken to amend section 104(1)(b) of the Labour Act of 2007, so as to ensure that the registrar has the power to verify the accounts of employers’ and workers’ organizations only in exceptional cases where there is evidence of irregularity in the handling of finances and that the substance and procedure of such verifications is subject to judicial review, as well as sections 104(2)(b) and 104(7)(c) so as to ensure that there is no interference by the administrative authorities with regard to the payment of arrears in trade union dues.

Finally, the Committee recalls that it had previously requested the Government to provide information regarding the designation of essential services. The Committee had noted that section 140(1) of the Labour Act of 2007 defines essential services as services the interruption of which would endanger the life, personal safety or health of the whole or part of the population. It further noted the Government’s indication that health facilities, police, fire and ambulance services, prison services, security forces, water and electricity services, and radio and telecommunication services are examples of essential services. The Committee requested the Government to indicate the procedure of designation of a particular service as essential. The Committee notes the Government’s indication that: the essential nature of a service is widely interpreted; it is based on the public interest test; and a wider definition allows for a broader judicial interpretation. The Committee once again recalls that radio services cannot be considered essential services in the strict sense of the term and that in order to avoid damages which are irreversible or out of all proportion to the parties, namely the users or consumers who suffer the economic effects of collective disputes, the authorities could establish a system of minimum service in other services which are of public utility rather than impose an outright ban on strikes, which should be limited to essential services in the strict sense of the term (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 160). The Committee requests the Government to indicate the measures taken or envisaged in this regard.

The Committee once again urges the Government to take the necessary measures in order to amend the Labour Act of 2007 so as to bring it into conformity with the Convention and to indicate in its next report the measures taken or envisaged in this regard.