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Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Gambia (Ratification: 2000)

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Direct Request (CEACR) - adopted 2022, published 111st ILC session (2023)

Article 1 of the Convention. Protection against acts of anti-union discrimination.The Committee notes that section 6(1) of the Trade Union Bill stipulates that a person shall not discriminate against an employee or any person seeking employment for exercising any right conferred by the Bill, and that section 6(2) prohibits anti-union dismissals. The Committee observes however that while sections 130, 140 and 141 of the Labour Bill (which reproduce the provisions of sections 83, 91 and 92 of the Labour Act) provide for procedures and sanctions in case of anti-union dismissals, neither the Trade Union Bill nor the Labour Bill explicitly refer to specific procedures or penalties in case of acts of anti-union discrimination affecting workers during recruitment or in their careers, and the only sanction expressly prescribed concerns dismissal. The Committee recalls that the existence of legal provisions prohibiting acts of anti-union discrimination is not enough if they are not accompanied by effective and rapid procedures to ensure their application in practice, and that the effectiveness of such provisions also depends on the sanctions provided, which should be effective and sufficiently dissuasive (see 2012 General Survey on the fundamental Conventions, paragraphs 190 and 193). The Committee therefore requests the Government to indicate if other laws or regulations provide for procedures and sanctions applicable to acts of anti-union discrimination other than dismissal and trusts that the Government will ensure that the legislation provides adequate protection against all acts of anti-union discrimination.

Article 4. Promotion of free and voluntary collective bargaining. The Committee notes that section 53 of the Trade Union Bill provides that if a trade dispute is not resolved after conciliation, a party to the dispute may, under certain conditions and in certain circumstances, refer it to the Industrial Tribunal. Recalling that, under Article 4 of the Convention, provisions allowing a party to interrupt negotiations in order to unilaterally submit the resolution of the dispute to a third party are generally contrary to the principle of free and voluntary collective bargaining, the Committee requests the Government to clarify the situations in which, according to Article 53 of the Trade Union Bill, a party to a collective bargaining dispute would be able to apply to the Labour Court and whether the Court would then be able to substitute itself for the parties in order to unilaterally determine the terms and conditions of work and employment which are the subject of the negotiations.

Articles 4 and 6. Right to collective bargaining of public servants not engaged in the administration of the State.The Committee notes that section 41(1) of the Trade Union Bill provides that the Minister may, after consultations with the Labour Advisory Board, make regulations establishing machinery for determining terms and conditions of employment for any category of employees in the public sector. It further notes that section 41(3) stipulates that the Minister may determine different terms and conditions for certain categories of public employees. The Committee recalls that under Article 6 of the Convention, persons who are employed in the public sector but by their functions are not directly engaged in the administration of the State should benefit from the guarantees provided for in the Convention (see 2012 General Survey, paragraph 172). The Committee requests the Government to amend section 41 of the Trade Union Bill to ensure that all public servants not engaged in the administration of the State are able to negotiate collectively their conditions of work.

The Committee requests the Government to provide information on any steps taken to revise the Trade Union Bill in light of the foregoing, in consultation with the social partners.

Observation (CEACR) - adopted 2022, published 111st ILC session (2023)

The Committee notes the observations of the International Trade Union Confederation (ITUC) received on 1 September 2022 referring to matters under examination by the Committee.

The Committee also notes that the Government indicates that the Labour Bill and the Trade Union Bill are currently being reviewed and provides copies of the two bills.

Scope of the Convention. In its previous comments, the Committee requested the Government to provide information on the adoption of the Trade Union Bill and expressed the firm expectation that the rights afforded by the Convention would be ensured for prison officers, domestic workers and civil servants not engaged in the administration of the State, whom section 3(2) of the Labour Act excludes from its scope. The Committee takes due note of the Government’s indication that these categories of workers are not excluded from the scope of the Trade Union Bill, as they are not enumerated among the persons excluded by section 3 of the Bill.

The Committee observes however that section 2 of the Bill defines “trade union” as “an organized group of employees”, and “employee” as “a person employed for wages or a salary”, a definition that may not encompass self-employed workers and workers without employment contracts. In this regard, the Committee recalls that the Convention does not apply only to employees but more broadly to all workers, and that only the armed forces, the police and public servants engaged in the administration of the State may be excluded from the guarantees of the Convention. The Committee also notes that, according to the observations submitted by the ITUC, there has been no progress regarding the adoption of the Trade Union Bill since the Gambian Trade Union Bureau submitted its comments and recommendations on the Bill in 2017. The Committee requests the Government to take the necessary measures, in full consultation with the social partners, to ensure that the Trade Union Bill is revised and adopted shortly, with a view to guaranteeing that all workers, including prison officers, domestic workers, civil servants not engaged in the administration of the State, as well as self-employed workers and workers without employment contracts, enjoy the rights and guarantees set out in the Convention. The Committee requests the Government to provide information on any progress achieved in this regard.

Article 4. Recognition of organizations for the purposes of collective bargaining. In its previous comments, recalling that the organization of a ballot for determining representativeness should be carried out by the authorities or an independent party upon a request presented by a union, the Committee requested the Government to bring section 131 of the Labour Act, which provides that an employer may organize a secret ballot to establish a sole bargaining agent, into conformity with the Convention. The Committee notes with regret that the Government states that section 169 of the Labour Bill also allows the employer to organize such a secret ballot. The Committee requests the Government to amend the Labour Bill so as to ensure that the determination of the representative status of trade unions for purposes of collective bargaining is conducted in accordance with a procedure that offers every guarantee of impartiality, by an independent body that enjoys the confidence of the parties.

Threshold of representativity. In its previous comment, the Committee recalled that if no union in a specific negotiating unit meets the required threshold to be recognized as a sole bargaining agent, minority trade unions should be able to negotiate, jointly or separately, at least on behalf of their own members, and requested the Government to bring its legislation into conformity with the Convention. The Committee notes that the Government states that in the Trade Union Bill, a trade union will be recognized for purposes of collective bargaining if it represents a simple majority of the unionizable employees (section 34). Observing that the Bill does not contain any provisions regulating cases in which no union reaches that threshold, the Committee recalls once again that systems where a representative union that fails to secure the absolute majority may be denied the possibility of bargaining, may raise problems of compatibility with the Convention. Noting additionally that the Government only informs of two concluded collective agreements, the Committee considers that the apparently very small number of existing collective agreement in the country could appear to be related to the restrictive requirements to engage in collective bargaining which are contained in the current legislation. The Committee requests the Government to indicate the meaning of the term “simple majority” in section 34 of the Trade Union Bill, and to amend the legislation in order to ensure that if no union reaches the required threshold to be recognized as a bargaining agent, the existing unions are given the possibility to negotiate, jointly or separately, at least on behalf of their own members.

Promotion of collective bargaining in practice.The Committee had previously noted the information provided by the Government on two company-level collective agreements concluded in the private sector in 2014 and 2017. The Committee notes that the Government limits itself to referring again to these two agreements and stating that it will take steps to sensitize trade unions to maximise the use and benefits of collective bargaining. The Committee reiterates its request that the Government provide information on the concrete measures taken to promote collective bargaining in all sectors covered by the Convention, as well as on the number of collective agreements concluded and in force, the sectors concerned and the number of workers covered by these agreements. The Committee further requests the Government to provide information on the actions taken to promote collective bargaining in the different sectors of the economy.

Request for technical assistance. The Committee notes the Government’s request for technical assistance from the Office to ensure that the Labour Bill and the Trade Union Bill include the ILO’s recommendations and are aligned with the Convention. The Committee trusts that the technical assistance requested by the Government will be provided as soon as possible with a view to ensuring that, after a consultation with the social partners, the above-mentioned bills will give full effect to the provisions of the Convention. The Committee requests the Government to provide information on any evolution in this regard, as well as copies of the laws once adopted.

The Committee is raising other matters in a request addressed directly to the Government.

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

The Committee notes that the Government’s report has not been received. It is therefore bound to repeat its previous comments.

Repetition

The Committee takes note of the supplementary information provided by the Government in light of the decision adopted by the Governing Body at its 338th Session (June 2020). The Committee proceeded with the examination of the application of the Convention on the basis of the supplementary information received from the Government this year, as well as on the basis of the information at its disposal in 2019.

Scope of the Convention. Civil servants not engaged in the administration of the State, prison officers and domestic workers. For a number of years, the Committee has been requesting the Government to indicate if the excluded employees under section 3(2) of the Labour Act (prison officers, domestic workers and civil servants not engaged in the administration of the State) were afforded the right to collective bargaining as well as adequate protection against acts of anti-union discrimination and interference. The Committee recalls that the Government had previously indicated that while the excluded employees under section 3(2) of the Labour Act 2007 are not afforded the right to collective bargaining, they are accorded equal rights under the General Order (GO), Public Service Commission Regulations and the Terms and Conditions of Service for Men and Officers in the Military. The Government had also indicated that it aimed to adopt a new Trade Union Bill 2019 in which the exclusion of these categories of workers may be reviewed to take into consideration Articles 1 and 2 of the Convention. The Committee notes that the Government has not provided information on any developments regarding the adoption of the Trade Union Bill. Recalling that, according to Articles 5 and 6, only members of the armed forces and the police, as well as public servants engaged in the administration of the State may be excluded from the guarantees set out in the Convention, the Committee requests the Government to provide information regarding the adoption of the Trade Union Bill and firmly expects that the rights afforded by the Convention will be ensured for prison officers, domestic workers and civil servants not engaged in the administration of the State.

Article 4. Measures to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers or their organizations and workers’ organizations. In its previous comments, the Committee had noted that according to section 130 of the Labour Act, in order to be recognized as a sole bargaining agent, a trade union should represent a certain percentage of employees under a contract of service (30 per cent in the case of a single union and at least 45 per cent if the establishment in question employs at least 100 people; in this case, the bargaining agent could be composed of two or more trade unions). The Committee recalled 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. Having noted that section 131 of the Act provides that an employer may, if he or she wishes, organize a secret ballot to establish a sole bargaining agent, the Committee recalled that the determination of the representative status of organizations for the purposes of bargaining should be carried out in accordance with a procedure that offers every guarantee of impartiality, by an independent body that enjoys the confidence of the parties (see the 2012 General Survey on the fundamental Conventions, paragraph 228). On this basis, in its previous comments, the Committee underlined that the organization of a ballot for determining representativeness should be carried out by the authorities or an independent party upon a request presented by a union. The Committee therefore requested the Government to provide information on any developments in bringing the legislation into conformity with the Convention. The Committee takes note of the Government’s indication that the review of the Labour Act is still ongoing and that this matter would be put before the stakeholders for consideration to be incorporated in the new Bill. Welcoming the Government’s indication, the Committee requests the Government to provide information on the progress achieved in this respect.

Promotion of collective bargaining in practice. While taking note of the information provided by the Government on two company-level collective agreements concluded in the private sector in 2014 and 2017, the Committee requests the Government to inform on the measures taken to promote collective bargaining in all sectors covered by the Convention and to provide information on the number of collective agreements concluded and in force in the country, the sectors concerned and the number of workers covered by these agreements.

The Committee hopes that the Government will make every effort to take the necessary action in the near future.

Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

The Committee takes note of the supplementary information provided by the Government in light of the decision adopted by the Governing Body at its 338th Session (June 2020). The Committee proceeded with the examination of the application of the Convention on the basis of the supplementary information received from the Government this year, as well as on the basis of the information at its disposal in 2019.

Scope of the Convention. Civil servants not engaged in the administration of the State, prison officers and domestic workers. For a number of years, the Committee has been requesting the Government to indicate if the excluded employees under section 3(2) of the Labour Act (prison officers, domestic workers and civil servants not engaged in the administration of the State) were afforded the right to collective bargaining as well as adequate protection against acts of anti-union discrimination and interference. The Committee recalls that the Government had previously indicated that while the excluded employees under section 3(2) of the Labour Act 2007 are not afforded the right to collective bargaining, they are accorded equal rights under the General Order (GO), Public Service Commission Regulations and the Terms and Conditions of Service for Men and Officers in the Military. The Government had also indicated that it aimed to adopt a new Trade Union Bill 2019 in which the exclusion of these categories of workers may be reviewed to take into consideration Articles 1 and 2 of the Convention. The Committee notes that the Government has not provided information on any developments regarding the adoption of the Trade Union Bill. Recalling that, according to Articles 5 and 6, only members of the armed forces and the police, as well as public servants engaged in the administration of the State may be excluded from the guarantees set out in the Convention, the Committee requests the Government to provide information regarding the adoption of the Trade Union Bill and firmly expects that the rights afforded by the Convention will be ensured for prison officers, domestic workers and civil servants not engaged in the administration of the State.

Article 4. Measures to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers or their organizations and workers’ organizations. In its previous comments, the Committee had noted that according to section 130 of the Labour Act, in order to be recognized as a sole bargaining agent, a trade union should represent a certain percentage of employees under a contract of service (30 per cent in the case of a single union and at least 45 per cent if the establishment in question employs at least 100 people; in this case, the bargaining agent could be composed of two or more trade unions). The Committee recalled 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. Having noted that section 131 of the Act provides that an employer may, if he or she wishes, organize a secret ballot to establish a sole bargaining agent, the Committee recalled that the determination of the representative status of organizations for the purposes of bargaining should be carried out in accordance with a procedure that offers every guarantee of impartiality, by an independent body that enjoys the confidence of the parties (see the 2012 General Survey on the fundamental Conventions, paragraph 228). On this basis, in its previous comments, the Committee underlined that the organization of a ballot for determining representativeness should be carried out by the authorities or an independent party upon a request presented by a union. The Committee therefore requested the Government to provide information on any developments in bringing the legislation into conformity with the Convention. The Committee takes note of the Government’s indication that the review of the Labour Act is still ongoing and that this matter would be put before the stakeholders for consideration to be incorporated in the new Bill. Welcoming the Government’s indication, the Committee requests the Government to provide information on the progress achieved in this respect.

Promotion of collective bargaining in practice. While taking note of the information provided by the Government on two company-level collective agreements concluded in the private sector in 2014 and 2017, the Committee requests the Government to inform on the measures taken to promote collective bargaining in all sectors covered by the Convention and to provide information on the number of collective agreements concluded and in force in the country, the sectors concerned and the number of workers covered by these agreements.

Observation (CEACR) - adopted 2019, published 109th ILC session (2021)

Scope of the Convention. Civil servants not engaged in the administration of the State, prison officers and domestic workers. For a number of years, the Committee has been requesting the Government to indicate if the excluded employees under section 3(2) of the Labour Act (prison officers, domestic workers and civil servants not engaged in the administration of the State) are afforded the right to collective bargaining under Part XIII of the Labour Act as a result of an order published in the gazette by the Secretary of State and if so, to provide a copy of the said order. The Committee had also requested the Government to inform it how these categories of workers are afforded adequate protection against acts of anti-union discrimination and interference, in accordance with Articles 1 and 2 of the Convention. The Committee notes the Government’s indication that while the excluded employees under section 3(2) of the Labour Act 2007 are not afforded the right to collective bargaining, they are accorded equal rights under the General Order (GO), Public Service Commission Regulations and the Terms and Conditions of Service for Men and Officers in the Military. The Government further indicates that it is introducing a new Trade Union Bill 2019 in which the above-mentioned exclusion of these categories of workers may be reviewed to take into consideration Articles 1 and 2 of the Convention. In this respect, the Committee recalls that, according to Articles 5 and 6, only members of the armed forces and the police, as well as public servants engaged in the administration of the State may be excluded from the guarantees set out in the Convention. The Committee therefore requests the Government to provide information on any developments regarding the adoption of the Trade Union Bill and the guarantee that the rights afforded by the Convention are ensured for prison officers, domestic workers and civil servants not engaged in the administration of the State, including adequate protection against acts of anti-union discrimination and interference.

Article 4. Measures to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers or their organizations and workers’ organizations. In its previous comments, the Committee had noted that according to section 130 of the Act, in order to be recognized as a sole bargaining agent, a trade union should represent a certain percentage of employees under a contract of service (30 per cent in the case of a single union and at least 45 per cent if the establishment in question employs at least 100 people; in this case, the bargaining agent could be composed of two or more trade unions). The Committee recalled 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. The Committee further noted that section 131 of the Act provides that an employer may, if he or she wishes, organize a secret ballot to establish a sole bargaining agent, and recalled that the organization of a ballot for determining representativeness should be carried out by the authorities or an independent party upon a request presented by a union. The Committee therefore requested the Government to provide information on any developments in bringing the legislation into conformity with the Convention. In the absence of a reply from the Government on this point, the Committee reiterates its request. The Committee expresses the firm hope that in its next report, the Government will provide information on the progress achieved in this respect.

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.

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

The Committee notes with deep concern that the Government’s report has not been received. It is therefore bound to repeat its previous comments initially made in 2011.

Repetition

Scope of the Convention. Civil servants, prison officers and domestic workers. In its previous comments, the Committee had requested the Government to guarantee that the rights afforded by the Convention were ensured for prison officers, domestic workers and civil servants not engaged in the administration of the State. The Committee noted with regret that the new Labour Act did not apply to the abovementioned categories of workers (section 3(2)). The Committee recalled that only the armed forces, the police and public servants engaged in the administration of the State can be excluded from the guarantees of the Convention. The Committee notes that the Government had indicated that the right to collective bargaining under Part XIII of the Labour Act is a communal right guaranteed to all workers. The Committee observes that although prison officers, domestic workers and civil servant are excluded from the application of the Labour Act, section 3(3) entitles the Secretary of State to extend the Act’s application by an order published in the gazette, to any excluded category of workers. The Committee therefore requests the Government to indicate if the excluded employees under section 3(2) of the Labour Act are afforded the rights to collective bargaining under Part XIII of the Labour Act as a result of an order published in the gazette by the Secretary of State and if so, to provide a copy of the said Order. The Committee also requests the Government to indicate how these categories of workers are afforded adequate protection against acts of anti-union discrimination and interference, in accordance with Articles 1 and 2 of the Convention.

Article 4. Measures to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers or their organizations and workers’ organizations. In its previous comments, the Committee had noted that according to section 130 of the Act, in order to be recognized as a sole bargaining agent, a trade union should represent a certain percentage of employees under a contract of service (30 per cent in the case of a single union and at least 45 per cent if the establishment in question employs at least 100 people; in this case, the bargaining agent could be composed of two or more trade unions). The Committee recalled that where, under a system for nominating an exclusive bargaining agent, there is no union representing the required percentage to be so designated, collective bargaining rights should not be denied to other unions in the unit, at least on behalf of their own members. The Committee further noted that section 131 of the Act provides that an employer may, if he or she wishes, organize a secret ballot to establish a sole bargaining agent. The Committee recalled that the organization of a ballot for determining representativeness should be carried out by the authorities or an independent party upon a request presented by a union. The Committee requested the Government to take the necessary measures in order to bring the legislation into conformity with the Convention in accordance with the abovementioned principles. The Committee noted the Government’s indication that the Department of Labour is in consultation with the Central Government for amendments to be tabled before Parliament for approval. The Committee requests the Government to provide information on any development in this regard.

The Committee expects that the Government will make every effort to take the necessary action in the near future.

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

The Committee notes with concern that the Government’s report has not been received. It is therefore bound to repeat its previous comments made in 2011. The Committee also notes that the Government had been requested to provide information to the Committee on the Application of Standards at the 106th Session of the International Labour Conference for failure to supply reports and information on the application of ratified Conventions.

Repetition

Scope of the Convention. Civil servants, prison officers and domestic workers. In its previous comments, the Committee had requested the Government to guarantee that the rights afforded by the Convention were ensured for prison officers, domestic workers and civil servants not engaged in the administration of the State. The Committee noted with regret that the new Labour Act did not apply to the abovementioned categories of workers (section 3(2)). The Committee recalled that only the armed forces, the police and public servants engaged in the administration of the State can be excluded from the guarantees of the Convention. The Committee notes that the Government had indicated that the right to collective bargaining under Part XIII of the Labour Act is a communal right guaranteed to all workers. The Committee observes that although prison officers, domestic workers and civil servant are excluded from the application of the Labour Act, section 3(3) entitles the Secretary of State to extend the Act’s application by an order published in the gazette, to any excluded category of workers. The Committee therefore requests the Government to indicate if the excluded employees under section 3(2) of the Labour Act are afforded the rights to collective bargaining under Part XIII of the Labour Act as a result of an order published in the gazette by the Secretary of State and if so, to provide a copy of the said Order. The Committee also requests the Government to indicate how these categories of workers are afforded adequate protection against acts of anti-union discrimination and interference, in accordance with Articles 1 and 2 of the Convention.

Article 4. Measures to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers or their organizations and workers’ organizations. In its previous comments, the Committee had noted that according to section 130 of the Act, in order to be recognized as a sole bargaining agent, a trade union should represent a certain percentage of employees under a contract of service (30 per cent in the case of a single union and at least 45 per cent if the establishment in question employs at least 100 people; in this case, the bargaining agent could be composed of two or more trade unions). The Committee recalled that where, under a system for nominating an exclusive bargaining agent, there is no union representing the required percentage to be so designated, collective bargaining rights should not be denied to other unions in the unit, at least on behalf of their own members. The Committee further noted that section 131 of the Act provides that an employer may, if he or she wishes, organize a secret ballot to establish a sole bargaining agent. The Committee recalled that the organization of a ballot for determining representativeness should be carried out by the authorities or an independent party upon a request presented by a union. The Committee requested the Government to take the necessary measures in order to bring the legislation into conformity with the Convention in accordance with the abovementioned principles. The Committee noted the Government’s indication that the Department of Labour is in consultation with the Central Government for amendments to be tabled before Parliament for approval. The Committee requests the Government to provide information on any development in this regard.

The Committee expects that the Government will make every effort to take the necessary action in the near future.

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

The Committee notes with concern that the Government’s report has not been received. It is therefore bound to repeat its previous comments.

Repetition

Scope of the Convention. Civil servants, prison officers and domestic workers. In its previous comments, the Committee had requested the Government to guarantee that the rights afforded by the Convention were ensured for prison officers, domestic workers and civil servants not engaged in the administration of the State. The Committee noted with regret that the new Labour Act did not apply to the abovementioned categories of workers (section 3(2)). The Committee recalled that only the armed forces, the police and public servants engaged in the administration of the State can be excluded from the guarantees of the Convention. The Committee notes that the Government had indicated that the right to collective bargaining under Part XIII of the Labour Act is a communal right guaranteed to all workers. The Committee observes that although prison officers, domestic workers and civil servant are excluded from the application of the Labour Act, section 3(3) entitles the Secretary of State to extend the Act’s application by an order published in the gazette, to any excluded category of workers. The Committee therefore requests the Government to indicate if the excluded employees under section 3(2) of the Labour Act are afforded the rights to collective bargaining under Part XIII of the Labour Act as a result of an order published in the gazette by the Secretary of State and if so, to provide a copy of the said Order. The Committee also requests the Government to indicate how these categories of workers are afforded adequate protection against acts of anti-union discrimination and interference, in accordance with Articles 1 and 2 of the Convention.

Article 4. Measures to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers or their organizations and workers’ organizations. In its previous comments, the Committee had noted that according to section 130 of the Act, in order to be recognized as a sole bargaining agent, a trade union should represent a certain percentage of employees under a contract of service (30 per cent in the case of a single union and at least 45 per cent if the establishment in question employs at least 100 people; in this case, the bargaining agent could be composed of two or more trade unions). The Committee recalled that where, under a system for nominating an exclusive bargaining agent, there is no union representing the required percentage to be so designated, collective bargaining rights should not be denied to other unions in the unit, at least on behalf of their own members. The Committee further noted that section 131 of the Act provides that an employer may, if he or she wishes, organize a secret ballot to establish a sole bargaining agent. The Committee recalled that the organization of a ballot for determining representativeness should be carried out by the authorities or an independent party upon a request presented by a union. The Committee requested the Government to take the necessary measures in order to bring the legislation into conformity with the Convention in accordance with the abovementioned principles. The Committee noted the Government’s indication that the Department of Labour is in consultation with the Central Government for amendments to be tabled before Parliament for approval. The Committee requests the Government to provide information on any development in this regard.

The Committee expects that the Government will make every effort to take the necessary action in the near future.

Observation (CEACR) - adopted 2015, published 105th ILC session (2016)

The Committee notes that the Government’s report has not been received. It is therefore bound to repeat its previous comments.

Repetition
Scope of the Convention. Civil servants, prison officers and domestic workers. In its previous comments, the Committee had requested the Government to guarantee that the rights afforded by the Convention were ensured for prison officers, domestic workers and civil servants not engaged in the administration of the State. The Committee noted with regret that the new Labour Act did not apply to the abovementioned categories of workers (section 3(2)). The Committee recalled that only the armed forces, the police and public servants engaged in the administration of the State can be excluded from the guarantees of the Convention. The Committee notes that the Government had indicated that the right to collective bargaining under Part XIII of the Labour Act is a communal right guaranteed to all workers. The Committee observes that although prison officers, domestic workers and civil servant are excluded from the application of the Labour Act, section 3(3) entitles the Secretary of State to extend the Act’s application by an order published in the gazette, to any excluded category of workers. The Committee therefore requests the Government to indicate if the excluded employees under section 3(2) of the Labour Act are afforded the rights to collective bargaining under Part XIII of the Labour Act as a result of an order published in the gazette by the Secretary of State and if so, to provide a copy of the said Order. The Committee also requests the Government to indicate how these categories of workers are afforded adequate protection against acts of anti-union discrimination and interference, in accordance with Articles 1 and 2 of the Convention.
Article 4. Measures to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers or their organizations and workers’ organizations. In its previous comments, the Committee had noted that according to section 130 of the Act, in order to be recognized as a sole bargaining agent, a trade union should represent a certain percentage of employees under a contract of service (30 per cent in the case of a single union and at least 45 per cent if the establishment in question employs at least 100 people; in this case, the bargaining agent could be composed of two or more trade unions). The Committee recalled that where, under a system for nominating an exclusive bargaining agent, there is no union representing the required percentage to be so designated, collective bargaining rights should not be denied to other unions in the unit, at least on behalf of their own members. The Committee further noted that section 131 of the Act provides that an employer may, if he or she wishes, organize a secret ballot to establish a sole bargaining agent. The Committee recalled that the organization of a ballot for determining representativeness should be carried out by the authorities or an independent party upon a request presented by a union. The Committee requested the Government to take the necessary measures in order to bring the legislation into conformity with the Convention in accordance with the abovementioned principles. The Committee noted the Government’s indication that the Department of Labour is in consultation with the Central Government for amendments to be tabled before Parliament for approval. The Committee requests the Government to provide information on any development in this regard.

The Committee hopes that the Government will make every effort to take the necessary action in the near future.

Observation (CEACR) - adopted 2014, published 104th ILC session (2015)

The Committee notes that the Government’s report has not been received. It must therefore repeat its previous comments.

Repetition
Scope of the Convention. Civil servants, prison officers and domestic workers. In its previous comments, the Committee had requested the Government to guarantee that the rights afforded by the Convention were ensured for prison officers, domestic workers and civil servants not engaged in the administration of the State. The Committee noted with regret that the new Labour Act did not apply to the abovementioned categories of workers (section 3(2)). The Committee recalled that only the armed forces, the police and public servants engaged in the administration of the State can be excluded from the guarantees of the Convention. The Committee notes that the Government indicates in its report that the right to collective bargaining under Part XIII of the Labour Act is a communal right guaranteed to all workers. The Committee observes that although prison officers, domestic workers and civil servant are excluded from the application of the Labour Act, section 3(3) entitles the Secretary of State to extend the Act’s application by an order published in the gazette, to any excluded category of workers. The Committee therefore requests the Government to indicate if the excluded employees under section 3(2) of the Labour Act are afforded the rights to collective bargaining under Part XIII of the Labour Act as a result of an order published in the gazette by the Secretary of State and if so, to provide a copy of the said Order. The Committee also requests the Government to indicate how these categories of workers are afforded adequate protection against acts of anti-union discrimination and interference, in accordance with Articles 1 and 2 of the Convention.
Article 4. Measures to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers or their organizations and workers’ organizations. In its previous comments, the Committee had noted that according to section 130 of the Act, in order to be recognized as a sole bargaining agent, a trade union should represent a certain percentage of employees under a contract of service (30 per cent in the case of a single union and at least 45 per cent if the establishment in question employs at least 100 people; in this case, the bargaining agent could be composed of two or more trade unions). The Committee recalled that where, under a system for nominating an exclusive bargaining agent, there is no union representing the required percentage to be so designated, collective bargaining rights should not be denied to other unions in the unit, at least on behalf of their own members. The Committee further noted that section 131 of the Act provides that an employer may, if he or she wishes, organize a secret ballot to establish a sole bargaining agent. The Committee recalled that the organization of a ballot for determining representativeness should be carried out by the authorities or an independent party upon a request presented by a union. The Committee requested the Government to take the necessary measures in order to bring the legislation into conformity with the Convention in accordance with the abovementioned principles. The Committee notes the Government’s indication that the Department of Labour is in consultation with the Central Government for amendments to be tabled before Parliament for approval.

The Committee requests the Government to provide information on any development in this regard.

The Committee hopes that the Government will make every effort to take the necessary action in the near future.

Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

Scope of the Convention. Civil servants, prison officers and domestic workers. In its previous comments, the Committee had requested the Government to guarantee that the rights afforded by the Convention were ensured for prison officers, domestic workers and civil servants not engaged in the administration of the State. The Committee noted with regret that the new Labour Act did not apply to the abovementioned categories of workers (section 3(2)). The Committee recalled that only the armed forces, the police and public servants engaged in the administration of the State can be excluded from the guarantees of the Convention. The Committee notes that the Government indicates in its report that the right to collective bargaining under Part XIII of the Labour Act is a communal right guaranteed to all workers. The Committee observes that although prison officers, domestic workers and civil servant are excluded from the application of the Labour Act, section 3(3) entitles the Secretary of State to extend the Act’s application by an order published in the gazette, to any excluded category of workers. The Committee therefore requests the Government to indicate if the excluded employees under section 3(2) of the Labour Act are afforded the rights to collective bargaining under Part XIII of the Labour Act as a result of an order published in the gazette by the Secretary of State and if so, to provide a copy of the said Order. The Committee also requests the Government to indicate how these categories of workers are afforded adequate protection against acts of anti-union discrimination and interference, in accordance with Articles 1 and 2 of the Convention.

Article 4. Measures to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers or their organizations and workers’ organizations. In its previous comments, the Committee had noted that according to section 130 of the Act, in order to be recognized as a sole bargaining agent, a trade union should represent a certain percentage of employees under a contract of service (30 per cent in the case of a single union and at least 45 per cent if the establishment in question employs at least 100 people; in this case, the bargaining agent could be composed of two or more trade unions). The Committee recalled that where, under a system for nominating an exclusive bargaining agent, there is no union representing the required percentage to be so designated, collective bargaining rights should not be denied to other unions in the unit, at least on behalf of their own members. The Committee further noted that section 131 of the Act provides that an employer may, if he or she wishes, organize a secret ballot to establish a sole bargaining agent. The Committee recalled that the organization of a ballot for determining representativeness should be carried out by the authorities or an independent party upon a request presented by a union. The Committee requested the Government to take the necessary measures in order to bring the legislation into conformity with the Convention in accordance with the abovementioned principles. The Committee notes the Government’s indication that the Department of Labour is in consultation with the Central Government for amendments to be tabled before Parliament for approval. The Committee trusts that these amendments will take into account the abovementioned principles and requests the Government to provide information on any development in this regard.

Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

The Committee notes the Labour Act No. 5 of 2007, which replaces the Labour Act No. 12 of 1990, and wishes to raise in this respect, the following points.

Scope of the Convention. The Committee recalls that it had previously requested the Government to guarantee that the rights afforded by the Convention were ensured for workers engaged in the prison service, domestic service and civil servants not engaged in the administration of the State. The Committee regrets that the new Labour Act does not apply to the abovementioned categories of workers (section 3(2)). The Committee recalls that only the armed forces, the police and public servants engaged in the administration of the State can be excluded from the guarantees of the Convention. The Committee requests the Government to ensure that the rights afforded by the Convention are guaranteed to prison service workers, domestic service workers and civil servants not engaged in the administration of the State.

Articles 1 and 3 of the Convention. Protection against acts of anti-union discrimination. The Committee recalls that it had previously requested the Government to ensure that all workers were guaranteed protection against acts of anti-union discrimination, regardless of whether their employment relationship was based or not on a written contract. The Committee notes with satisfaction that the new Labour Act applies to all employment relationships (section 3(1)). The Committee further notes with satisfaction section 50 providing for nullity of contractual provisions prohibiting trade union membership in a contract of employment, and section 83(2)(e) prohibiting dismissals and disciplinary actions on account of trade union membership and activities. The Committee also notes with satisfaction that the new Act provides remedies of reinstatement and/or compensation for anti-union dismissals (section 92(2)).

Articles 2 and 3. Protection against acts of interference. The Committee recalls that it had requested the Government to ensure sufficient protection against acts of interference by workers’ and employers’ organizations (or their agents) in each other’s affairs. The Committee notes with satisfaction that section 109(1) of the new Act prohibits an employer from promoting the establishment of workers’ organizations under its domination and provides for a sanction of not less than 50,000 dalasis in case of non-compliance with this provision. The Committee further notes that a court can order the cancellation of the registration of a workers’ association dominated by an employer or any other adequate remedy (section 109(3) and (4)).

Article 4. Measures to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers or their organizations and workers’ organizations. The Committee recalls that in its previous comments it had expressed its concern at the discretionary power of the authorities to deny registration of collective agreements. The Committee notes with satisfaction that under section 123 of the Act, the commissioner responsible for registering a collective agreement has an obligation to register such an agreement upon the application of both parties.

The Committee notes that according to section 130 of the Act, in order to be recognized as a sole bargaining agent, a trade union should represent a certain percentage of employees under a contract of service (30 per cent in the case of a single union and at least 45 per cent if the establishment in question employs at least 100 people; in this case, the bargaining agent could be composed of two or more trade unions). The Committee recalls that where, under a system for nominating an exclusive bargaining agent, there is no union representing the required percentage to be so designated, collective bargaining rights should not be denied to other unions in the unit, at least on behalf of their own members. It requests the Government to take the necessary measures in order to bring the legislation into conformity with the Convention.

The Committee further notes that section 131 of the Act provides that an employer may, if he or she wishes, organize a secret ballot to establish a sole bargaining agent. The Committee considers that the organization of a ballot for determining representativeness should be carried out by the authorities or an independent party upon a request presented by a union. The Committee requests the Government to amend section 131 of the Act in accordance with the principle above.

Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

The Committee notes with regret that the Government’s report has not been received. It must therefore repeat its previous observation which read as follows:

Scope of the Convention. The Committee notes that Labour Act No. 12 of 1990 (the Act) does not apply to workers engaged in civil service, prison service and domestic service. The Committee notes that according to the Government the new labour bill empowers the Secretary of State to extend the scope of the bill to cover any category of worker excluded. While recalling that only the armed forces, the police and public servants engaged in the administration of the State can be excluded from the guarantees of the Convention, the Committee requests the Government to guarantee that the rights afforded by the Convention are ensured for the abovementioned categories of worker.

Article 1 of the Convention. Protection against acts of anti-union discrimination. The Committee had noted that section 75 of the Act provides that any term or condition in a contract of employment, whether express or implied, prohibiting an employee from becoming or remaining a member of any trade union, or purporting to subject the employee to any penalty, loss of benefit or detriment by reason of such membership, shall be null and void. However, according to section 73(1), not all workers are entitled to a written contract of employment, this type of contract being reserved to specific cases of employment, in particular, fixed-term employment of six months or more. The Committee requests the Government to indicate the way in which workers are guaranteed protection against acts of anti-union discrimination in cases where the employment relationship is not based on a written contract of employment.

The Committee had noted that Part IX, sections 109–125 of the Bill by which the Act was introduced to Parliament contained provisions on protection against dismissal by reason of union membership or because of participation in trade union activities, including strikes, and provided for compensation and reinstatement as remedies for such acts. However, the corresponding provisions are missing from the copy of the Labour Act adopted by Parliament, which the Committee has at its disposal. The Committee therefore requests the Government to transmit a complete copy of the Act.

Article 2. Protection against acts of interference. The Committee had noted that there is no provision in the Act concerning protection against acts of interference by workers’ and employers’ organizations (or their agents) in each other’s affairs. The Committee notes that according to the Government the new labour bill provides protection against acts of interference. The Committee requests the Government to communicate the text of any provisions of the new labour bill that prohibit acts of interference (such as the establishment or financial support of workers’ organizations with the object of placing them under the control of employers or employers’ organizations) and guarantee sufficiently rapid appeal procedures and dissuasive sanctions against such acts.

Article 4. Measures to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers or their organizations and workers’ organizations. The Committee had observed that section 161 of the Act provides that voluntary agreements may be registered by the Commissioner upon the application of both parties to the agreement. Noting that the wording of this section seems to allow discretionary power to deny registration, the Committee recalls that the registration of the collective agreement can be refused only if it has a procedural flaw or does not conform to the minimum standards laid down by general labour law. The Committee notes that according to the Government the new labour bill does not give discretionary power to the Commissioner. It requests the Government to transmit a copy of the relevant provisions.

The Committee had noted that, according to section 168, in order to be recognized as a sole bargaining agent, a trade union must be registered as “efficient”, within the meaning of sections 128(5) and 142 of the Act (i.e. the Registrar should be satisfied that the trade union is and is likely to remain independent and is capable of efficiently representing its members and conducting the trade union affairs). Considering that provisions which allow such great discretionary power to the Registrar are contrary to the principle of the autonomy of the parties in collective bargaining and therefore are not in conformity with the Convention, the Committee requests the Government to repeal or amend sections 128(5), 142 and 168, accordingly.

The Committee also noted that, according to section 168, in order to be recognized as a sole bargaining agent, a trade union should represent a certain percentage of employees under a contract of service (30 per cent in the case of a single union and at least 45 per cent if the establishment in question employs at least 100 people; in this case, the bargaining agent could be composed of two or more trade unions). The Committee recalls that where, under a system for nominating an exclusive bargaining agent, there is no union representing the required percentage to be so designated, collective bargaining rights should not be denied to other unions in the unit, at least on behalf of their own members and requests the Government to take the necessary measures in order to bring the legislation into conformity with the Convention.

The Committee further noted that section 168(6) provides that an employer may, if he or she wishes, organize a secret ballot upon receiving an application to establish a sole bargaining agent. The Committee considers that the organization of a ballot for determining representativeness should be carried out by the authorities or an independent party upon a request presented by a union. While taking note of the Government’s statement according to which the appropriate authorities will be informed of the Committee’s comments in order to make the necessary changes, the Committee requests the Government to amend section 168(6) in accordance with the above.

The Committee had noted that, under section 167, a work committee could be set up at an establishment where at least 100 employees are employed. The Committee notes that the Government has communicated the text of the relevant provisions of the new labour bill. The Committee requests the Government to clarify the role of such committees and more specifically to indicate: (1) whether trade union representatives can be elected to such committees; and (2) whether these committees can negotiate and conclude collective agreements even when a union exists in the undertaking.

Article 6. The Committee had requested the Government to indicate whether public servants not engaged in the administration of the State are granted collective bargaining rights and to specify the relevant legislative provisions. The Committee notes that these categories of worker do not have the right to form unions and therefore do not have the right to collective bargaining. The Committee notes that according to the Government the relevant authorities will be advised to grant the right to collective bargaining to civil servants in the new labour bill.

The Committee trusts that the Government will take all necessary steps to bring its national law into conformity with the Convention and requests the Government to provide information on any measures taken or envisaged in this respect, in particular those concerning the adoption of the new labour bill.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.

Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee notes that the Government’s report has not been received. It must therefore repeat its previous observation, which read as follows:

The Committee notes the comments submitted by the International Confederation of Free Trade Unions (ICFTU, now ITUC – International Trade Union Confederation) in a communication dated 10 August 2006 concerning issues already raised.

Article 4. Measures to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers or their organizations and workers’ organizations. The Committee had observed that section 161 of the Act provides that voluntary agreements may be registered by the Commissioner upon the application of both parties to the agreement. Noting that the wording of this section seems to allow discretionary power to deny registration, the Committee recalls that the registration of the collective agreement can be refused only if it has a procedural flaw or does not conform to the minimum standards laid down by general labour law. The Committee notes that according to the Government the new labour bill does not give discretionary power to the Commissioner. It requests the Government to transmit a copy of the relevant provisions.

The Committee also noted that according to section 168, in order to be recognized as a sole bargaining agent, a trade union should represent a certain percentage of employees under a contract of service (30 per cent in the case of a single union and at least 45 per cent if the establishment in question employs at least 100 people; in this case, the bargaining agent could be composed of two or more trade unions). The Committee recalls that where, under a system for nominating an exclusive bargaining agent, there is no union representing the required percentage to be so designated, collective bargaining rights should be granted to all the unions in the unit, at least on behalf of their own members and requests the Government to take the necessary measures in order to bring the legislation into conformity with the Convention.

The Committee had noted that under section 167, a work committee could be set up at an establishment where at least 100 employees are employed. The Committee notes that the Government has communicated the text of the relevant provisions of the new labour bill. The Committee requests the Government to clarify the role of such committees and more specifically to indicate: (1) whether trade union representatives can be elected to such committees; and (2) whether these committees can negotiate and conclude collective agreements even when a union exists in the undertaking.

Article 6. The Committee had requested the Government to indicate whether public servants not engaged in the administration of the State are granted collective bargaining rights and to specify the relevant legislative provisions. The Committee notes that according to the ICFTU, these categories of worker do not have the right to form unions and therefore do not have the right to collective bargaining. The Committee notes that according to the Government the relevant authorities will be advised to grant the right to collective bargaining to civil servants in the new labour bill.

The Committee trusts that the Government will take all necessary steps to bring its national law into conformity with the Convention and requests the Government to keep it informed of any measures taken or envisaged in this respect, in particular those concerning the adoption of the new labour bill.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.

Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee notes the Government’s report.

The Committee further notes the comments submitted by the International Confederation of Free Trade Unions (ICFTU) in a communication dated 10 August 2006 concerning issues already raised.

Scope of the Convention. The Committee notes that Labour Act No. 12 of 1990 (the Act) does not apply to workers engaged in civil service, prison service and domestic service. The Committee notes that according to the Government the new labour bill empowers the Secretary of State to extend the scope of the bill to cover any category of worker excluded. While recalling that only the armed forces, the police and public servants engaged in the administration of the State can be excluded from the guarantees of the Convention, the Committee requests the Government to guarantee that the rights afforded by the Convention are ensured for the abovementioned categories of worker.

The Committee had noted that Part IX, sections 109-125 of the Bill by which the Act was introduced to Parliament contained provisions on protection against dismissal by reason of union membership or because of participation in trade union activities, including strikes, and provided for compensation and reinstatement as remedies for such acts. However, the corresponding provisions are missing from the copy of the Labour Act adopted by Parliament, which the Committee has at its disposal. The Committee therefore requests the Government to transmit a complete copy of the Act.

Article 4. Measures to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers or their organizations and workers’ organizations. The Committee had observed that section 161 of the Act provides that voluntary agreements may be registered by the Commissioner upon the application of both parties to the agreement. Noting that the wording of this section seems to allow discretionary power to deny registration, the Committee recalls that the registration of the collective agreement can be refused only if it has a procedural flaw or does not conform to the minimum standards laid down by general labour law. The Committee notes that according to the Government the new labour bill does not give discretionary power to the Commissioner. It requests the Government to transmit a copy of the relevant provisions.

The Committee further noted that section 168(6) provides that an employer may, if he or she wishes, organize a secret ballot upon receiving an application to establish a sole bargaining agent. The Committee considers that the organization of a ballot for determining representativeness should be carried out by the authorities or an independent party upon a request presented by a union. While taking note of the Government’s statement according to which the appropriate authorities will be informed of the Committee’s comments in order to make the necessary changes, the Committee requests the Government to amend section 168(6) in accordance with the above.

Article 6. The Committee had requested the Government to indicate whether public servants not engaged in the administration of the State are granted collective bargaining rights and to specify the relevant legislative provisions. The Committee notes that according to the ICFTU, these categories of worker do not have the right to form unions and therefore do not have the right to collective bargaining. The Committee notes that according to the Government the relevant authorities will be advised to grant the right to collective bargaining to civil servants in the new labour bill.

Direct Request (CEACR) - adopted 2005, published 95th ILC session (2006)

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:

Scope of the Convention. The Committee notes that Labour Act No. 12 of 1990 (the Act) does not apply to workers engaged in civil service, prison service and domestic service. While recalling that only the armed forces, the police and public servants engaged in the administration of the State can be excluded from the guarantees of the Convention, the Committee requests the Government to indicate the manner in which the rights afforded by the Convention are ensured for the abovementioned categories of workers.

Article 1 of the Convention. Protection against acts of anti-union discrimination. The Committee notes that section 75 of the Act provides that any term or condition in a contract of employment, whether expressed or implied, prohibiting an employee from becoming or remaining a member of any trade union, or purporting to subject the employee to any penalty, loss of benefit or detriment by reason of such membership, shall be null and void. The Committee notes, however, that according to section 73(1), not all workers are entitled to a written contract of employment, this type of contract being reserved to specific cases of employment, in particular, fixed-term employment of six months or more. The Committee requests the Government to indicate the way in which workers are guaranteed protection against acts of anti-union discrimination in cases where the employment relationship is not based on a written contract of employment.

The Committee notes that Part IX, sections 109-125 of the Bill by which the Act was introduced to Parliament contained provisions on protection against dismissal by reason of union membership or because of participation in trade union activities, including strikes, and provided for compensation and reinstatement as remedies for such acts. However, the corresponding provisions are missing from the copy of the Labour Act adopted by Parliament, which the Committee has at its disposal. The Committee therefore requests the Government to transmit a complete copy of the Act.

Article 2. Protection against acts of interference. The Committee notes that there is no provision in the Act concerning protection against acts of interference by workers’ and employers’ organizations (or their agents) in each other’s affairs. The Committee requests the Government to indicate the provisions which prohibit acts of interference (such as the establishment or financial support of workers’ organizations with the object of placing them under the control of employers or employers’ organizations) and guarantee sufficiently rapid appeal procedures and dissuasive sanctions against such acts.

Article 4. Measures to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers or their organizations and workers’ organizations. The Committee observes that section 161 of the Act provides that voluntary agreements "may" be registered by the Commissioner upon the application of both parties to the agreement. Noting that the wording of this section seems to allow discretionary power to deny registration, the Committee recalls that the registration of the collective agreement could be refused only if it has a procedural flaw or does not conform to the minimum standards laid down by general labour law. The Committee requests the Government to clarify whether the Commissioner has indeed a discretionary power to deny the registration of the agreement and if it is not the case, to indicate the criteria on which the Commissioner should base the decision of non-registration, as well as the reasons that have been invoked in the past to deny the registration of collective agreements.

The Committee notes that, according to section 168, in order to be recognized as a sole bargaining agent, a trade union must be registered as "efficient", within the meaning of sections 128(5) and 142 of the Act (i.e. the Registrar should be satisfied that the trade union is and is likely to remain independent and is capable of efficiently representing its members and conducting the trade union affairs). Considering that provisions which allow such great discretionary power to the Registrar are contrary to the principle of the autonomy of the parties in collective bargaining and therefore are not in conformity with the Convention, the Committee requests the Government to repeal or amend sections 128(5), 142 and 168, accordingly.

The Committee also notes that according to section 168, in order to be recognized as a sole bargaining agent, a trade union should represent a certain percentage of employees under a contract of service (30 per cent in the case of a single union and at least 45 per cent if the establishment in question employs at least 100 people; in this case, the bargaining agent could be composed of two or more trade unions). The Committee recalls that where, under a system for nominating an exclusive bargaining agent, there is no union representing the required percentage to be so designated, collective bargaining rights should be granted to all the unions in the unit, at least on behalf of their own members and requests the Government to take the necessary measures in order to bring the legislation into conformity with the Convention.

The Committee further notes that section 168(6) provides that an employer may, if he or she wishes, organize a secret ballot upon receiving an application to establish a sole bargaining agency. The Committee considers that the organization of a ballot for determining representativeness should be carried out by the authorities or an independent party upon a request presented by a union. The Committee requests the Government to amend section 168(6) in accordance with the above.

The Committee notes that under section 167, a work committee could be set up at an establishment where at least 100 employees are employed. The Committee requests the Government to clarify the role of such committees and more specifically to indicate: (1) whether trade union representatives can be elected to such committees; and (2) whether these committees can negotiate and conclude collective agreements even when a union exists in the undertaking.

Article 6. The Committee requests the Government to indicate whether public servants are granted collective bargaining rights and to specify the relevant legislative provisions.

Direct Request (CEACR) - adopted 2003, published 92nd ILC session (2004)

The Committee takes note of the Government’s first report.

Article 4. Measures to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers or their organizations and workers’ organizations. The Committee observes that section 161 of the Act provides that voluntary agreements "may" be registered by the Commissioner upon the application of both parties to the agreement. Noting that the wording of this section seems to allow discretionary power to deny registration, the Committee recalls that the registration of the collective agreement could be refused only if it has a procedural flaw or does not conform to the minimum standards laid down by general labour law. The Committee requests the Government to clarify whether the Commissioner has indeed a discretionary power to deny the registration of the agreement and if it is not the case, to indicate the criteria on which the Commissioner should base the decision of non-registration, as well as the reasons that have been invoked in the past to deny the registration of collective agreements.

Article 6. The Committee requests the Government to indicate whether public servants are granted collective bargaining rights and to specify the relevant legislative provisions.