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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. Trade union rights and civil liberties. In its previous comments, the Committee had requested the Government to provide comments on the observations of the International Trade Union Confederation received on 1 September 2017, which contained allegations of arbitrary arrests of several leaders of the Gambian National Transport Control Association (GNTCA), the death of Mr Sheriff Diba, one of the arrested leaders, while in detention, and the ban imposed on the activities of the GNTCA. The Committee had regretted that the Government had not provided any concrete information on these grave allegations and their investigation and only indicated that the case involving the leaders of the said Association had been discontinued before the High Court of The Gambia and that the parties had been discharged. The Committee recalled the need to make every effort to investigate the alleged grave violations of trade union rights, with a view to apportioning responsibility and punishing the perpetrators. The Committee takes note of the Government’s indication that an investigation into the facts surrounding the death of Mr Sheriff Diba could be conducted by the Truth, Reconciliation and Reparation Commission (TRRC), an independent institution mandated to conduct research and investigations into human rights violations committed between July 1994 and January 2017 by the former regime. The Government further indicates that the GNTCA's matter was discharged by the High Court and that it is the responsibility of the GNTCA to re-engage the Government to review their case for consideration. The Committee expresses its firm hope that the death of Mr Diba as well as the alleged arbitrary arrests of several leaders of the GNTCA will be duly investigated by the TRRC without delay and requests the Government to provide updated information in this respect. It requests the Government to ensure that the GNTCA is informed about the necessary procedures to obtain a review of its case and also requests that the Government provide a copy of the mentioned High Court order. Article 2 of the Convention. Right of employers and workers to establish and join organizations of their own choosing without previous authorization. Civil servants, prison officers and domestic workers. In its previous comments, the Committee had noted that the Labour Act of 2007 excludes civil servants, prison officers and domestic workers from its scope (sections 3(2)(a), (c) and (d), respectively). The Committee had also noted the Government’s statement that the Labour Act was in the process of being reviewed to allow these categories of workers to enjoy the rights established by the Convention. The Committee takes note of the Government’s indication that the review of the Labour Act is still ongoing, and its further indication that separate statutes and regulations cover civil servants and prison officers, and that new regulations could cover domestic workers. Recalling the need to take all necessary measures to ensure that civil servants, domestic workers and prison officers enjoy the right to establish and join organizations of their own choosing, the Committee requests the Government to provide detailed information on any developments in this respect, including any revisions in the Labour Bill to extend the right to these three groups, and the specific terms of any other laws or regulations that ensure the right is accorded to each of the three groups.
Repetition Article 2 of the Convention. Minimum membership requirement. In its previous comments, the Committee had noted that the Labour Act of 2007 maintained a minimum membership requirement of 50 workers for the registration of a trade union (section 96(4)(a)). It had further noted that the Government was proposing an amendment to section 96(4)(a) of the Labour Act to reduce the minimum membership requirement to 25 workers and therefore requested it to provide information on any developments in this respect. The Committee notes with regret that the Government reiterates that it does not intend to reduce this threshold, since during a workshop on the draft Labour Bill, consensus would have been reached among the tripartite constituents to keep the minimum membership requirement to register a trade union at enterprise level at 50. Recalling that a minimum membership requirement of 50 workers may hinder the establishment of organizations, especially in small enterprises, the Committee once again requests the Government to consider reviewing section 96(4)(a) of the Labour Act so as to lower the minimum membership requirement, in particular for the establishment of unions at the enterprise level. Article 3. Right of employers’ and workers’ organizations to organize their administration and to formulate their programmes. In its previous comments, the Committee had noted that the Labour Act of 2007 did not reflect the Committee’s concerns: (i) with regard to the right of the registrar to verify employers’ and workers’ organizations when he or she “is unable to ascertain with certainty the absence of irregularity or fraud” (section 104(1)(b)); and (ii) that failure to provide the registrar with any book is subject to a fine and even imprisonment (section 104(5)). The Committee had also noted with regret that the Labour Act maintained the right of the registrar to institute civil proceedings in order to secure payment of arrears in trade union dues (sections 104(2)(b) and 104(7)(c)). It further noted the Government’s indication that following a recent seminar, efforts were on the way to amend some areas, including section 104(1)(b) of the Labour Act. The Committee takes note of the Government’s indication that given that the Labour Act is still under review, stakeholders, including trade unions, could consider this matter. The Government also indicates that the draft Trade Union Bill has taken into account all the aforementioned issues. The Committee requests the Government to provide further information on the way in which these issues have been taken into consideration in the draft Trade Union Bill and to provide specific information on any developments to amend sections 104(1)(b), 104(2)(b) and 104(7)(c) of the Labour Act so as to ensure that the registrar has the power to verify the accounts of employers’ and workers’ organizations only in exceptional cases where there is evidence of irregularity in the handling of finances; that the substance and procedure of such verifications is subject to judicial review; and that there is no interference by the administrative authorities with regard to the payment of arrears in trade union dues. In its previous comments, the Committee had noted that section 140(1) of the Labour Act defines essential services as services the interruption of which would endanger the life, personal safety or health of the whole or part of the population, and the Government’s indication that health facilities, police, fire and ambulance services, prison services, security forces, water and electricity services, and radio and telecommunication services are examples of essential services. The Committee recalled that radio services cannot be considered essential services in the strict sense of the term and that in order to avoid damages which are irreversible or out of all proportion to the parties, namely the users or consumers who suffer the economic effects of collective disputes, the authorities could establish a system of minimum service in other public services which are of fundamental importance rather than impose an outright ban on strikes, which should be limited to essential services in the strict sense of the term (see the 2012 General Survey on the fundamental Conventions, paragraph 131), and the Committee had therefore requested the Government to indicate the measures taken or envisaged in this regard. The Committee had previously noted with concern the Government’s statement that the definition of essential services remained the same and that there was no prescribed procedure designating a particular service as essential, while indicating that the Labour Act had already been reviewed and was being finalized by the Ministry of Justice. The Committee notes that in its supplementary report the Government indicates that, in its view, radio services are essential because they allow access to timely information, which could be lifesaving, particularly during the current pandemic, in which people living in rural areas rely on information broadcast on the radio for following the safety precautions set by the Ministry of Health. While acknowledging the Government’s concerns, the Committee recalls that, rather than imposing an outright ban on strikes, concerns to ensure that such basic informational needs are met can be addressed through a system of minimum services (see the 2012 General Survey on the fundamental Conventions, paragraph 136). The Committee therefore reiterates its request to review the list of essential services in light of the foregoing, as part of the ongoing review of the Labour Act and firmly hopes that the Government will make every effort to take the necessary action in the near future. The Committee expects that, in the context of finalizing the review of the Labour Act of 2007, the Government will take the necessary measures to bring the legislation into conformity with the Convention in line with the preceding comments, and requests it to provide information on any developments, including a copy of the revised Labour Act and the Trade Union Act once adopted.
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.