Observación (CEACR) - Adopción: 1995, Publicación: 83ª reunión CIT (1996)

The Committee notes the information supplied by the Government in its report.

The Committee had requested the Government on previous occasions to take measures to amend its legislation in view of the numerous and serious incompatibilities of the Trade Union Act of 1992 with the Convention, particularly the lack of protection afforded to workers against acts of anti-union discrimination.

1. Article 1 of the Convention. The Committee's previous comments referred to the fact that while section 23 afforded trade union officials a certain degree of protection against acts of anti-union discrimination in respect of their employment, it was defective in that it did not apply to trade union members in general. Moreover, under the terms of this provision, an employer could carry out the prohibited acts with the agreement of the trade union federation or the Registrar General.

The Committee notes the Government's statement that section 24 of the Trade Union Act provides for such protection by stipulating that it is prohibited for an employer to tempt any of his workers, by assistance in cash or in kind or by any other means, to join or not to join a trade union. This section also prohibits all forms of interference by an employer in the activities or administration of a union for the sake of bringing it under his control.

The Committee observes, however, that the first part of section 24 only provides unionists with protection from pressures which may be exercised against them as a result of their union membership, but not as a result of their union activities. Moreover, the second part of section 24 refers to protection against acts of interference and not anti-union discrimination.

The Committee therefore is obliged to conclude that neither section 23 nor section 24 afford sufficient protection to unionists against acts of anti-union discrimination.

The Committee would therefore once again request the Government to take steps to ensure that: (i) section 23 of the Trade Union Act of 1992 is amended so that all trade unionists, and not just officials, are protected against acts of anti-union discrimination; and (ii) this protection is not weakened by allowing an employer to carry out such acts with the agreement of the Registrar or a union which is not independent.

2. Article 3. The Committee recalls that this provision stipulates that machinery appropriate to national conditions shall be established, where necessary, to ensure respect for the right to organize as defined in Articles 1 and 2. In this respect, the Committee notes that under section 41 of the Trade Union Act, a violation of any provision of this Act or of any regulations issued thereunder constitutes an offence punishable by six months' imprisonment or a fine or both.

3. Article 4. The Committee observes that section 11 of the Industrial Relations Act, 1976, establishes a procedure of compulsory negotiation for two weeks in the event of a labour dispute, which duration can be extended if both parties agree. The Committee further notes that failure to reach agreement after such negotiation results in section 14 of the same Act providing for compulsory conciliation for a maximum period of three weeks. In the event of failure to reach agreement during this period, section 16 stipulates that the Registrar General shall refer the dispute for arbitration but only if both parties agree. However, the Committee notes that section 16 also provides that the Minister may, if he deems it necessary, refer the dispute for arbitration even without the agreement of the parties.

In this respect, the Committee recalls that the Minister could have recourse to compulsory arbitration only in essential services in the strict sense of the term, namely those the interruption of which would endanger the life, personal safety or health of the whole or part of the population.

The Committee would therefore request the Government to take steps to ensure that section 16 of the Industrial Relations Act, 1976, is amended so that compulsory arbitration may be imposed only in the circumstances mentioned above.

Moreover, with reference to its earlier comments on section 32(2) of the Trade Union Act concerning disputes which arise before the Registrar General, the Committee notes the Government's statement that disputes arising under section 32(2) of the Trade Union Act of 1992 relate to disputes which may occur between unionists themselves for reasons related to activities inside a union or regarding union protection and immunity in union relations with employers; consequently, this provision does not govern labour relations disputes, which are regulated by the Industrial Relations Act. In addition, the Committee notes that the decisions of the Registrar General under section 32(2) are subject to appeal, first to the Court of Appeals, and then to the Supreme Court if necessary.