Direct Request (CEACR) - adopted 2017, published 107th ILC session (2018)

Repetition

The Committee observes that a number of legislative provisions raise issues of compatibility with the Convention.

Article 2. Right of employers and workers to establish and join organizations.

• – Prison service is excluded from the application of the Trade Unions Act (section 55 of the TUA), and thus workers in the prison service are unduly deprived of the guarantees enshrined in the Convention.
• – Excessive powers of the Registrar: to refuse registration on grounds that the union is “formed or likely to be used for unlawful purposes” (issues that could be addressed by judicial review instead) or on the grounds that “some other trade union already registered is adequately representative of the whole or of a substantial proportion of the interests in respect of which the applicants seek registration” (which can amount to trade union monopoly); and to substantively review changes in union rules (sections 9 and 28 of the TUA).
• – Lack of legal recognition of the right of employers to join and establish organizations of their own choosing, and compulsory membership of employers in the chamber of commerce of their region.

Article 3. Right of organizations to organize their administration and activities and to formulate their programmes.

• – Excessively detailed legal regulations, in particular on the consequences of arrears in union contributions or on quorum for meetings (paragraphs 18–21 of the Schedule of the TUA), the definition of which should be left to the organizations’ self-regulatory autonomy.
• – Undue restrictions to participation: voting and membership in union committees is denied for those under 18 years and parents may object to the union membership of those under 16; only those normally employed and ordinarily resident in the country may vote; and workers cannot be voting members in more than one union (sections 24 and 26 of the TUA).
• – Undue restrictions to union office: union officers need to have been engaged for a period of not less than one year in the profession or trade (at least a proportion of the officers should be exempted from this kind of occupational requirement); those under the age of 18 cannot be committee members; and workers cannot be officers in two different unions (sections 26 and 27 of the TUA).
• – Excessively broad rights given to any person having an interest in the funds of the trade union to inspect the books (this could be restricted to a percentage of union members or to a judicial order) and to access the list of names of trade union members (their confidentiality should be safeguarded) (paragraph 11 of the Schedule of the TUA).
• – Undue limitations on the purposes for which union funds can be used, inappropriately subjecting some of these uses to the prior approval by the minister (section 32 of the TUA); excessively broad prohibition on the use of funds for political purposes (section 33); use of funds to pay fines only when imposed on the union (not when imposed on trade union leaders in the performance of their duties); and broad inspection and intervention powers of the registrar, in particular as to financial supervision of accounts and access to the books and other documents of an organization (sections 32, 33 and 37 of the TUA).
• – Excessively broad powers of public authorities to intervene in strikes, in particular when they consider that these may be “gravely injurious to the national economy” (sections 26–29 and 34 of the Trade Disputes Act), a comprehensive notion that is not defined further.

Article 4. No dissolution or suspension of organizations by administrative authority.

Excessive discretion for the administrative authorities to cancel or suspend the registration of an organization, based on broad grounds such as the registrar’s determination that the organization has been used for a purpose inconsistent with its constitution or rules (section 13 of the TUA). The Committee recalls that suspension and dissolution measures should only be permissible in response to serious and repeated offences; and the stay of execution during the judicial procedure, which currently only applies to cancellation decisions, should also apply to suspension measures (section 15 of the TUA).

Article 5. Right of organizations to affiliate with international organizations of workers and employers.

Denial of the right of organizations to join or associate with outside organizations, or of the ability to receive funds from them, as they are subject to the written consent of the minister (section 50 of the TUA).

Article 6. Rights of federations and confederations.

The Committee notes the Government’s indication that there are no federations or confederations of employers’ or workers’ organizations and that there is no legislation that gives effect to this Article. Emphasizing that the Article remains nevertheless applicable, the Committee invites the Government to undertake any necessary measures to ensure that federations and confederations, if constituted, may benefit from the provisions set out in Articles 2, 3 and 4 of the Convention.

Draft Employment Relations Bill.

The Committee notes the Government’s statement that tripartite constituents in Vanuatu, through the Tripartite Labour Advisory Council, are currently in the process of adopting the Employment Relations Bill (ERB), which seeks to implement the provisions of the Convention. The Committee welcomes that the ERB addresses satisfactorily a number of the abovementioned issues of compatibility with the Convention, including: the explicit recognition of the right to organize of employers; the non-exclusion of the prison service; the participation rights of minors; the removal of restrictions on the unemployed and those not ordinarily residing in the country; the possibility to exercise voting rights in more than one union; the lifting of restrictions on trade union pluralism; the removal of restrictions in the election of union officials; freedom in the use of funds; and the right of organizations to establish and join federations and confederations and to affiliate with international organizations. The Committee however observes that the ERB contains certain provisions that still raise issues of compatibility with the Convention, such as the lack of coverage to workers that do not have a contract of employment, or the prescription of internal regulations, such as quorum rules, that should be left to the organizations to decide.

The Committee requests the Government to take all necessary measures to bring the legislation into conformity with the Convention taking into account the foregoing comments, and to supply information on relevant developments, as well as a copy of the new legislation once adopted.

Application of the Convention in practice. The Committee requests the Government to provide statistical information on the number of employers’ and workers’ organizations and the unionization rate.