Observación (CEACR) - Adopción: 2009, Publicación: 99ª reunión CIT (2010)

The Committee notes the Government’s reply to the comments made by the International Trade Union Confederation (ITUC) dated 28 August 2007, which refer to various acts of anti-union discrimination, particularly the dismissal of workers in various enterprises (betting and lottery, cardboard packaging, beverages, agri-exports and an enterprise in an export processing zone (EPZ)) for attempting to set up trade unions. The ITUC also alleges delays in the admission and handling of cases. The Committee further notes the Government’s indication that: (1) the length of labour judgements has been reduced considerably and they currently take less than one year; (2) special labour courts have been set up in most provinces which have a large economically active population; (3) the number of labour inspectors has been increased and their salaries have improved (12 of these inspectors undertake periodic visits to sugar refineries); (4) a programme has been implemented for awareness raising of rights at work, particularly on freedom of association and trade union immunity. The Committee also notes the Government’s statement that, in 2006 and 2007, 18 unions were registered in the EPZs. With regard to the allegations of anti-union discrimination, the Government points out that, in the betting and lottery enterprise, the registration of the enterprise union was effected; in the cardboard packing enterprise, infringements were reported and a negotiation process is currently under way; in the beverages enterprise, an infringement of freedom of association was reported and an agreement was reached between the workers and the representatives of the enterprise. As regards the agri-export enterprise and the EPZ enterprise, the Government states that no violations of freedom of association were found.

The Committee also notes the comments from the ITUC dated 26 August 2009 which refer to the matters examined by the Committee and the length of judicial proceedings, which go on for some 18 months or more, and indicate that collective agreements have been negotiated in only four export processing enterprises. While noting the Government’s statement that the length of judicial proceedings has been reduced to less than one year, the Committee requests the Government to send its observations on these comments.

Article 2 of the Convention. Lack of sufficiently dissuasive penalties against acts of anti-union discrimination. The Committee previously asked the Government to carry out a full investigation into the allegations from the ITUC dated 31 August 2005 regarding the absence of effective penalties for acts of anti-union discrimination, the dismissal on trade union grounds of leaders in sugar plantations, the drawing up of blacklists of trade unionists in EPZs and the dismissal of all the founding members of a trade union which the administrative authority had refused to register. The ITUC refers once again to this matter in its comments made in 2009. The Committee previously asked the Government to provide further information on the absence of effective penalties for acts of anti-union discrimination. In its 2009 comment, the ITUC emphasizes the fact that the penalties are not sufficiently dissuasive. While observing that the Government has not sent any specific information in reply to the allegations made by the ITUC in 2005, the Committee notes the Government’s statement that information and guidance are provided on an ongoing basis to workers who report violations of their trade union rights. Moreover, in 2007 and 2008 numerous inspections were carried out (12 of them in EPZs) on the basis of requests made by union federations or the unions themselves, and on the occasions when violations of freedom of association were established, reports of the infringements were drawn up and sent to the courts so that the appropriate penalties could be imposed. Accordingly, nine reports of infringements were dealt with in 2007 and seven in 2008. Recalling once again that investigations should be carried out without delay in cases where acts of anti-union discrimination are reported, the Committee expresses the firm hope that the Government will carry out an investigation without delay into these allegations and thus be able to assign responsibility and, if appropriate, impose sufficiently dissuasive penalties. The Committee also requests the Government to state which specific penalties may be imposed under the legislation for persons found guilty of anti-union acts.

Article 4. Majorities required to engage in collective bargaining. The Committee recalls that it has been commenting for many years on the fact that, in order to engage in collective bargaining, a trade union must represent an absolute majority of the workers in an enterprise or the workers in a branch of activity (sections 109 and 110 of the Labour Code). The Committee observes that the Government has not sent its observations in this respect and recalls that in its previous observation it noted that the Labour Advisory Committee had held a meeting with a view to establishing consensual proposals between the social partners and the Government for amending the legislation. The Committee recalls that in cases where the law provides that, in order to be recognized as a bargaining agent, a union has to obtain the support of 50 per cent of the members of a specific bargaining unit, problems may arise since a majority union which fails to secure this absolute majority is thus denied the possibility of bargaining. The Committee considers that under such a system, if no union covers more than 50 per cent of the workers, collective bargaining rights should be granted to all the unions in this unit, at least on behalf of their own members (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 241). The Committee again requests the Government to take the necessary steps without delay to amend sections 109 and 110 of the Labour Code in order to bring them into conformity with the provisions requiring the promotion of collective bargaining.

Right of collective bargaining in the public sector. The Committee notes with interest that, on 16 January 2008, Act No. 41-08 concerning the civil service and its implementing regulations (Decree No. 523-09) were enacted. The Committee appreciates that this Act establishes the right to organize for civil servants, including in federations and confederations, and that it applies to those employed in the service of the State, municipalities and autonomous entities, guaranteeing special protection (organizational immunity) to the founders of associations and to some members of their executive committees. Penalties for violations of this protection are also provided for, ranging as far as dismissal from the post concerned.

The Committee expresses the hope that the protection provided for in the new legislation extends to acts of anti-union discrimination at the time of recruitment and in the course of employment, prohibiting any discrimination on the basis of union membership or participation in legitimate union activities. The Committee also requests the Government to establish specific protection for associations against interference from the employer aimed at interfering in or controlling the activities of the organization, whether in the form of financial control or otherwise. The Committee also requests the Government to lay down sufficiently dissuasive penalties against such acts of discrimination or interference.

Finally, the Committee observes that although the new regulations guarantee the legal right to strike, they are silent with regard to the right to collective bargaining of public servants not engaged in the administration of the State, who, under the terms of Article 6 of the Convention, should enjoy the right to collective bargaining. The Committee therefore requests the Government to take the necessary steps, in consultation with the trade unions concerned, to ensure recognition of this right and provide information in this respect.

Right to collective bargaining in practice. The Committee further notes the Government’s statement that 15 collective agreements were registered in 2007 and 14 collective agreements were filed for registration in 2008, in the latter case benefiting 7,420 workers. The Committee observes that the numbers of agreements and workers covered are low, and it is not clear from the information supplied by the Government whether the figures refer to the private or public sector. While recalling that, under Article 4 of the Convention, the Government has the obligation to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers and workers, the Committee requests the Government to take specific measures in this respect and send statistical information on any collective agreements concluded in the public and private sectors, including in the EPZs, indicating the numbers of workers covered by them.