Observación (CEACR) - Adopción: 1996, Publicación: 85ª reunión CIT (1997)

The Committee notes the information provided by the Government in its reports.

1. Article 1(c) and (d) of the Convention. In comments made for a number of years, the Committee referred to section 35(2) of the Trade Unions Act (Ch. 238), under which a penalty of imprisonment (involving, by virtue of section 66 of the Prison Rules, an obligation to work) may be imposed on any person employed by the Government, a municipal authority or by any employer in charge of supplying any city, town, village or place, or any part thereof, with electricity or water, railway, health, sanitary or medical services or communications or any other service that may by proclamation be declared by the Governor to be a public service, if he wilfully and maliciously breaks his contract of service, knowing or having reasonable cause to believe that the probable consequences of his so doing, either alone or in combination with others, will be to cause injury or danger or grave inconvenience to the community.

The Committee also has noted that, in pursuance of section 2 of the Settlement of Disputes Essential Services Act (Ch. 235), Statutory Instrument No. 92 of 1981 declared the National Fire Service, Postal Service, Monetary and Financial Services (banks, treasury, monetary authority), Airports (civil aviation and airport security services) and the Port Authority (pilots and security services) to be essential services, Statutory Instrument No. 51 of 1988 declared the Social Security Scheme administered by the Social Security Branch, an essential service, and Statutory Instrument No. 32 of 1984 declared Revenue Services, including all Revenue Collecting Departments and Agencies of the Government to be essential services.

The Committee notes from the Government's latest reports that there have been no steps to bring section 35(2) of the Trade Unions Act into conformity with the requirements of the Convention.

The Committee recalls that under Article 1(c) and (d) of the Convention, legislation providing for sanctions involving compulsory labour as a punishment for violations of labour discipline or for having participated in strikes must be abolished.

As indicated in paragraphs 110, 114 to 116 and 123 of its General Survey of 1979 on the abolition of forced labour, the Committee has, however, taken the view that the Convention does not protect persons responsible for breaches of labour discipline that impair or are liable to endanger the operation of essential services in the strict sense of the term (that is, services whose interruption would endanger the life, personal safety or health of the whole or part of the population), or which are committed either to the exercise of functions that are essential to safety or in circumstances where life or health are in danger. For the same services, functions and circumstances, participation in strikes would not be protected, provided that a prohibition is accompanied by compensatory guarantees in the form of adequate, impartial and speedy alternative dispute-settlement procedures. However, to justify the non-application of Article 1(c) and (d) of the Convention in such cases, there must exist an effective danger to safety, life or health, not mere inconvenience.

The Committee previously noted that section 35(2) of the Trade Unions Act refers not only to injury or danger but, alternatively, to grave inconvenience to the community, and applies not only to essential services in the strict sense of the term, but also to others whose interruption would not endanger the life, personal safety or health of the whole or part of the population, such as most employment under the Government or a municipal authority and most banking, postal and transport services.

Noting also the Government's repeated indication that there are no recorded penalties of imprisonment imposed under section 35(2) of the Trade Unions Act, the Committee again expresses the hope that the necessary measure will be taken to bring section 35(2) of the Trade Unions Act into conformity with the Convention as well as actual practice and that pending such action, the Government will continue to provide information on the application of this provision in practice, including any cases in which penalties of imprisonment have been imposed under this provision.

2. The Committee previously noted that under sections 221 and 225(1)(b), (c) and (e) of the Merchant Shipping Act, 1894, penalties of imprisonment (involving, by virtue of section 66 of the Prison Rules, an obligation to work) may be imposed for breaches of discipline such as desertion and absence without leave and disobedience, and sections 222 to 224 and 238 of the same Act as well as section 73(1) of the Harbours and Merchant Shipping Ordinance (Ch. 149) provide for the forcible return of seamen on board ship. The Committee previously also noted that the United Kingdom Merchant Shipping Acts, 1894, 1965 and 1974 are not listed in the Consolidated index of statutes and subsidiary legislation compiled in the framework of the West Indian Legislation Indexing Project (WILIP), and requested the Government to indicate whether these Acts and more particularly sections 221 to 224, 225(1)(b) and (c) and 238 of the 1894 Act have been repealed and, if so, to provide a copy of the repealing legislation. The Committee notes that no reply has been given to this request, and that the Government indicates in its latest reports that the Harbour and Shipping Act (which seems to correspond to the former Harbours Merchant Shipping Ordinance) has still not been amended. Referring to the explanations provided in paragraphs 117 and 125 of its above-mentioned General Survey of 1979, the Committee hopes that the Government will soon be in a position to indicate that action has been taken to bring the merchant shipping legislation into conformity with Article 1(c) and (d) of the Convention.