Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

Repetition

In its previous comment, the Committee had noted the observations of the International Trade Union Confederation (ITUC) received on 1 September 2015, which denounced fixed and unreasonable procedural requirements for, and limitations on, collective bargaining. The Committee once again requests the Government to provide its comments in this respect.

Article 4 of the Convention. Promotion of collective bargaining. Recognition of organizations for the purposes of collective bargaining. For many years, the Committee has requested the Government to amend section 5(5) of the Labour Relations and Industrial Disputes Act (LRIDA) of 1975 and section 3(1)(d) of its regulation with a view to bringing them in line with its commitment, pursuant to Article 4 of the Convention, to promote collective bargaining. The Committee recalls that the legislation allows for the recognition of a trade union as having bargaining rights only when a 50 per cent majority of the workers or a particular category of workers agree for it to have bargaining rights in relation to them. In the event of any doubt or dispute with regard to the representativeness of a union, the regulations allow the Minister to cause a ballot to be taken only if he is satisfied that the applicant union has a membership of not less than 40 per cent of the workers in relation to whom the request has been made. Once this requirement is fulfilled and the ballot taken, the result must show that 50 per cent of the workers eligible to vote have indicated that they wish a particular trade union to have bargaining rights in relation to them. The Committee further notes the ITUC’s observation that pursuant to section 5(6) of LRIDA, trade unions may only claim joint bargaining rights if each trade union receives at least 30 per cent of the votes. As noted in its previous comments, the Committee observes that: (i) the legislation fails to provide for the recognition of collective bargaining rights when no union reaches the required thresholds; and (ii) the requirement of 40 per cent membership for the union applying for a ballot restricts considerably the possibility to challenge the continued representativeness of a previously recognized bargaining agent. While noting the Government’s indication in its report that these issues are being examined and will be discussed with the Social Partners at the Labour Advisory Council, the Committee recalls that the determination of the threshold of representativeness to designate an exclusive agent for the purpose of negotiating collective agreements which are destined to be applied to all workers in a sector or establishment is compatible with the Convention in so far as the required conditions do not constitute an obstacle to the promotion of free and voluntary collective bargaining in practice. In this regard, the Committee considers that if no union in a specific negotiating unit meets the required threshold of representativeness to be able to negotiate on behalf of all workers, minority trade unions should be able to negotiate, jointly or separately, at least on behalf of their own members. Furthermore, as the levels of representativeness change with time, any organization which in a previous ballot failed to secure a sufficiently large number of votes should have the right to request a new election after a stipulated period. In the same vein, any new organization other than the one previously certified should have the right to demand a new ballot after a reasonable period has elapsed. Regretting the lack of progress, the Committee urges the Government to take the necessary measures in the very near future to amend its legislation in order to: (i) ensure that if no union reaches the required threshold to be recognized as a bargaining agent, unions are given the possibility to negotiate, jointly or separately, at least on behalf of their own members; (ii) recognize the right of any organization which in a previous ballot failed to secure a sufficiently large number of votes to request a new election after a stipulated period; and (iii) recognize the right of any new organization other than the previously certified organization to demand a new ballot after a reasonable period has elapsed. The Committee requests the Government to keep it informed of the developments in this regard and invites it, if it so wishes, to avail itself of the technical assistance of the Office.

Promotion of collective bargaining in practice. The Committee requests the Government to provide information on the number of collective agreements concluded and in force, the sectors concerned and the number of workers covered by these agreements.