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

The Committee notes the information provided by the Government in reply to its previous direct request. It notes, in particular, the adoption of the Industrial and Labour Relations Act, 1993, which contains, inter alia, provisions concerning restriction on discrimination in employment.

Article 2, paragraph 3, of the Convention. In its previous comments the Committee asked the Government to indicate whether adequate safeguards had been provided in so far as necessary, in accordance with this Article, against recourse to contracts of employment for a specified period of time, the aim of which is to avoid the protection resulting from the Convention. The Government indicates in its reply that such contracts are required to be in writing and attested by a proper officer, and that the proper officer will not attest a contract of service unless it meets the requirements enumerated in section 30 of the Employment Act. The Committee observes in this connection that, according to section 28(1)(a) of the above-mentioned Act, the contract shall be made in writing if made for a period of, or exceeding six months, and that, consequently, a contract for a shorter period may be made orally, in accordance with section 17 of the same Act, which does not require an attestation by a proper officer. Besides, the Committee also observes that section 30 of the Act referred to by the Government does not provide for any safeguards against recourse to contracts of employment for a specified period of time, nor contains any requirements of this kind. It therefore hopes that the Government will adopt measures with a view to provide for such safeguards, in order to give effect to this provision of the Convention (in this connection, it draws again the Government's attention to Paragraph 3 of Recommendation No. 166).

Article 2, paragraphs 4, 5 and 6. The Committee notes the Government's statement to the effect that, as a result of the lapse in November 1991 of the effect of the Employment (Special Provisions) Regulations, 1989, all categories of public service employees, as well as employees of a small-scale enterprise with a total number of employees less than five, are no longer excluded from the application of the Convention. The Government indicates, however, that in spite of the lapse of the above-mentioned Regulations, employees of the employer who is adjudged or declared bankrupt and employees of a company which is being wound up continue to be excluded from the application of the Convention. The Committee would be grateful if the Government would indicate, in its next report, any national provision which has repealed the Regulations of 1989 referred to above and supply a copy of the relevant text. Please also indicate any national provision which excludes the above-mentioned categories of workers from the application of the Convention. Please state whether the organizations of employers and workers concerned were consulted on such exclusions. Please also indicate the position of law and practice regarding the excluded categories, in accordance with paragraph 6, as well as any changes that may have occurred regarding the extent to which effect has been given or is to be given to the Convention in respect of the excluded categories.

Article 4. The Committee notes that, given repeal of the Employment (Special Provisions) Regulations of 1989, the Government refers, as regards methods of implementation of this Article, to section 64 of the Employment Act and to sections 85(4) and 108 of the Industrial and Labour Relations Act, 1993, as well as to collective agreements. The Committee notes that section 64 of the Employment Act referred to above contains provisions concerning settlement of disputes arising out of the non-compliance with the terms of a contract of employment, which may include, in particular, misconduct, neglect or ill-treatment of any party to a contract, such aggrieved party being entitled to report the matter to a labour officer for settlement. It also notes that section 85(4) of the Industrial and Labour Relations Act referred to above provides for the jurisdiction of the Industrial Relations Court to hear and determine any dispute between an employer and employee, and that section 108 of the same Act provides for restriction on discrimination in employment, laying down a list of grounds which shall not constitute valid reasons for termination. The Committee observes that neither of the above-mentioned national provisions contains an express prohibition to terminate the employment of a worker without a valid reason, if such termination is not founded on one of the grounds of discrimination prohibited by section 108 referred to above. It therefore asks the Government to consider enacting a provision expressly prohibiting termination of employment without a valid reason. It also asks the Government to describe in detail how the reasons considered to be valid reasons for termination are defined in collective agreements referred to in its report, and to supply copies of such collective agreements, in order to enable the Committee to assess the implementation of this Article of the Convention.

Article 5(d). The Committee notes with interest the Government's statement to the effect that consideration will be given to alter the provisions of section 108 of the Industrial and Labour Relations Act, 1993 with a view to include "family responsibilities" among the grounds of discrimination laid down in this section. It hopes that such an amendment will be introduced in the near future and asks the Government to report any progress made in this regard.

Article 6, paragraph 1. The Committee notes the Government's statement in the report concerning the amendment of section 54(1) of the Employment Act, so that the provisions of this section are applicable to all categories of employees regardless of remuneration. The Government indicates that the Minimum Wages and Conditions of Employment (General) (No. 2) Order, 1992 and the Minimum Wages and Conditions of Employment (Shop Workers) (No. 2) Order, 1992 provide for paid sick leave in regard to all employees covered by these instruments irrespective of their wage-earnings. As regards those employees who are not covered by the above-mentioned instruments, the Government states that the provisions concerning sick leave are contained in General Orders (in respect of public service employees), Joint Collective Agreement (in respect of employees employed by District Councils) and various collective agreements (in respect of other categories of employees). The Committee would be grateful if the Government would supply, with its next report, copies of the two Orders of 1992, as well as of General Orders, Joint Collective Agreement and various collective agreements referred to above.

Article 7. The Government states, with reference to disciplinary proceedings contained in various collective agreements, that an employee is normally given an opportunity to state his case before the disciplinary authority prior to a decision concerning his dismissal. It also indicates that the proper officer, in the course of his investigations, has to make sure that the employee has been given a fair hearing. The Committee would be grateful if the Government would supply copies of collective agreements which contain provisions giving an employee an opportunity to defend himself against the allegations made, prior to termination of employment.

Article 12, paragraph 1(a). The Government refers in its reply to section 48(4) of the Employment Act, which provides for payment of all wages, including overtime pay and allowances additional to basic pay, on the day upon which a contract of service is lawfully terminated. The Committee would be grateful if the Government would indicate whether "allowances additional to basic pay" referred to in this section cover also a severance allowance or other separation benefits, in accordance with national law and practice. The Committee also notes the Government's statement to the effect that various collective agreements provide for payment of long-service bonus upon attainment of at least five years' continuous service. Please indicate whether such bonus is paid only in connection with termination of employment, as a form of separation benefit, or is it payable irrespective of termination, and supply copies of the relevant collective agreements.

Article 14, paragraph 2. In its previous comments the Committee noted the Government's statement to the effect that the applicability of paragraph 1 of this Article is limited to terminations of more than five workers, and asked the Government to indicate whether effect is given to such limitation by any provision of national laws or regulations. The Government states in its reply that there is no law limiting the number of workers whose termination of employment is contemplated. The Committee would be grateful if the Government would indicate whether the limitation referred to in the Government's first report is given effect in some other manner, by the methods of implementation enumerated in Article 1 of the Convention.

Point V of the report form. The Committee notes statistical information supplied by the Government concerning redundancies which took place during the reporting period. Please continue to provide general information on the manner in which the Convention is applied in practice, including for example statistics, if available, on the activities of the bodies of appeal (such as the number of appeals against unjustified termination, the outcome of such appeals, the nature of the remedy awarded, etc.) and on the number of terminations for economic or similar reasons.