Direct Request (CEACR) - adopted 2018, published 108th ILC session (2019)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Samoa (Ratification: 2008)

Other comments on C087

Direct Request

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Article 2 of the Convention. Right of workers to establish and join organizations without distinction whatsoever. In its previous comments, the Committee had requested the Government to indicate whether the Labour and Employment Relations Act 2013 (LERA) is applicable to independent and outsourced workers, workers without employment contracts and public servants. The Committee notes that the Government explains that the terms “employees” and “employment” have been widely defined in the LERA, covering various types of workers and working arrangements. According to the Government, irrespective of whether workers are considered independent and outsourced and/or working without an employment contract, such workers are covered by the LERA. While taking note of the Government’s explanation, the Committee observes that section 2 of the LERA explicitly excludes from its scope workers without contracts and section 3 further excludes services rendered to a matai (traditional authority) under the aiga system or subsistence agricultural activities and any service which may be exempted by order of the Minister published in the Samoa Gazette and the Savali. The Committee requests the Government to provide information on the manner in which it is ensured that those categories of workers explicitly excluded from the scope of the Act, as well as workers in the informal economy, enjoy the right, in law and in practice, to establish and join organizations for furthering and defending their interests. The Committee also requests the Government to indicate which services, if any, have been excluded from the application of the LERA by the order of the Minister.

With respect to the applicability of the LERA to public servants, the Committee notes the Government’s indication that despite the fact that public service employees are excluded from its scope by virtue of its section 3(1), in practice, this category of workers is allowed to join and become members of the Public Service Association (PSA) or any other properly established organization. While taking due note that in practice, public servants are allowed to join established organizations, the Committee requests the Government to indicate whether public servants also enjoy the right to establish organizations of their own choosing. It further requests the Government to take the necessary measures to ensure that public servants, like other workers, enjoy the right to join and establish organizations of their own choosing, not only in practice but also in law, and to provide information on the steps taken or envisaged in this regard.

Article 3. Right of organizations to organize their activities and formulate their programmes. The Committee had previously requested the Government to take all necessary measures to amend the Public Service Act 2004 so as to ensure that public servants had the right to participate in strike actions. The Committee notes the Government’s indication that the forthcoming Public Service Amendment Bill provides for a repeal of section 48(1)(b) of the Public Service Act, which, according to the previous findings of the Attorney-General, prevented workers from participating in strike actions. The Committee hopes that the Public Service Act will be amended without further delay and requests the Government to provide information on any developments in this regard, including a copy of the law as amended.

Article 4. Dissolution and suspension. In its previous comments, the Committee had requested the Government to amend the Incorporated Societies’ Ordinance 1952 so as to ensure that workers’ and employers’ organizations could only be dissolved and suspended through judicial channels. The Committee notes the Government’s indication that the Samoa Law Reform Commission has begun an ambitious exercise to review the existing legislation, define the responsibility of ministries, state-owned enterprises and constitutional bodies with regard to the revised laws, and identify outdated laws with a view to their repeal or amendment. The Committee expects that the legislative review will result in the amendment of the Ordinance so as to ensure that workers’ and employers’ organizations can only be dissolved and suspended through judicial channels. It requests the Government to provide information on all developments in this regard.