Informe provisional - Informe núm. 246, Noviembre 1986

1. 358. The Committee last considered this case at its meeting in November 1985 when it presented interim conclusions to the Governing Body; (See 241st Report, paras. 822 to 845, approved by the Governing Body at its 231st Session.); it has twice adjourned consideration of the case, at its meetings in February and May 1986. (See 243rd and 244th Reports, para. 5.)
2. 359. Additional information was received from the complainants in a communication dated 23 December 1985, and from the Government in communications dated 18 January, 31 May and 23 September 1986.
3. 360. Guyana has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No.87) and the Right to Organise and Collective Bargaining Convention, 1949 (No.98). It has also ratified the Labour Relations (Public Service) Convention, 1978 (No.151) and the Collective Bargaining Convention, 1981 (No.154).

A. Previous examination of the case

1. 361. When the Committee examined the case in November 1985, it made the
2. following recommendations to the Governing Body: (See 241st Report, para. 845)
3. (a) The Committee requests the Government to supply it with a copy of the
4. judgement of the court concerning the validity and the constitutionality of
5. the Labour (Amendment) Act as soon as this becomes available, so that it can
6. reach a conclusion on this aspect of the case in full possession of all the
7. relevant information;
8. (b) The Committee asks the complainant organisations to supply details on
9. their allegations concerning the dual governmental and trade union functions
10. of members of the GTUC executive and, in particular, to indicate what
11. consequences this has for trade union rights;
12. (c) The Committee draws aspects of the case relating to the Labour Amendment
13. Act to the attention of the Committee of Experts on the Application of
14. Conventions and Recommendations;
15. (d) The Committee expresses the hope that, in relation to the recognition
16. of sole bargaining rights, the Government will find it possible to give effect
17. to the principle that it is not necessarily incompatible with Convention No.
18. 87 to provide for certification of the most representative bargaining union in
19. a given unit as the exclusive bargaining agent, but that in such cases there
20. is a need to provide for certain safeguards which include (a) certification by
21. an independent body and (b) the choice of the representative organisation by a
22. majority vote of the employees in the unit concerned.
23. B. Additional information supplied by the complaints
24. 362. In a communication of 23 December 1985, the complainants state that they
25. would like to offer clarification on the effects that the presence of the
26. Minister of Labour and the Minister of Forestry (formerly, Minister of
27. Finance) and the Parliamentary Secretary for Women's Affairs and Housing on
28. the executive of the GTUC have on that organisation.
29. 363. The complainants point out that the ministers referred to are members of
30. trade unions affiliated to the GTUC, who were elected to its executive and
31. were members thereof at the time the disputes arose, and go on to state that
32. the ministers participate fully in the deliberations of the executive of the
33. GTUC on all industrial relations matters, and that they are privy to all
34. decisions taken at the GTUC level on all such questions, including
35. negotiations.
36. 364. The complainants state further that about 85 per cent of organised
37. labour is employed in the public sector, and that the Government and the GTUC
38. are in regular discussions on matters affecting them. They refer to the fact
39. that the Minister of Labour is always on the government negotiating team while
40. he has all the information from the TUC long beforehand, and allege that this
41. Minister functions in three capacities: as the minister charged with
42. conciliation in industrial relations, as a member of the employers' (the
43. Government) team, and as member of the TUC executive. They submit in this
44. regard that there is a clear conflict between interest and duty, that this
45. makes a mockery of negotiations, and that convention and sheer decency impel
46. the relinquishing of either the trade union or the ministerial position.
47. 365. The complainants go on to state that all government ministers adhere to
48. the principle that the ruling party is paramount, and that ministers are bound
49. by an oath of Cabinet secrecy whereas this does not apply to them in their
50. capacities as executive members of the GTUC.
51. 366. The complainants allege moreover that the presence of ministers (whether
52. those mentioned above or others) on the GTUC executive inhibits free
53. expression of views in that body, particularly by those who are cautious.
54. 367. Finally, the complainants express the view that the workers' right to
55. fair and independent collective bargaining is infringed or at least that it
56. cannot be properly exercised in the foregoing circumstances.
57. C. The Government's reply
58. 368. In its communications of 18 January and 23 September 1986, the
59. Government refers to the Committee's recommendations. In particular, it states
60. that the judgement of the court concerning the validity and the
61. constitutionality of the Labour (Amendment) Act, No. 9 of 1984 has not been
62. handed down and that aspects of the case related to it are therefore still sub
63. judice: it will forward a copy of the judgement as soon as it is available
64. (which was still not the case at the time of its most recent communication).
65. 369. Regarding the recommendation concerning observance of the principle
66. concerning sole bargaining rights, the Government says that this matter was
67. considered by the Labour Code Commission comprising members of the Government,
68. the GTUC, the employers' organisation, the two political parties and the
69. Women's Organisation; and that, arising out of the Commission's report, a
70. draft Trade Union Recognition Bill, 1979 was prepared, which provides for (i)
71. the establishment of a Trade Union Recognition and Certificate Board, an
72. independent body, (ii) criteria for determining the union to be recognised
73. where one or more unions seek recognition, and (iii) certification of the
74. recognised union. A typed copy of the draft bill is attached to the
75. Government's communication of 23 September 1986, in which it is stated that
76. the bill is still under consideration by the employers' and workers'
77. representatives.
78. 370. The Government's communication of 31 May 1986 addresses itself to the
79. additional information supplied by the complainants on 23 December and
80. referred to above. In this regard, the Government states that the complainants
81. have not furnished the details required in the previous recommendations of the
82. Committee and, in particular, have not indicated the effect on trade union
83. rights.
84. 371. The Government goes on to express the view that the representations made
85. by the complainants are not justified: the presence of the ministers and the
86. Parliamentary Secretary on the executive of the GTUC result from their having
87. been democratically and constitutionally elected thereto, both before and
88. after their appointment as ministers. In this regard the Government restates
89. its earlier contention that abundant precedents exist in the West Indies of
90. "public personalities within the region who have held ministerial office
91. contemporaneously with high trade union office".
92. 372. It states further that the electorate at the GTUC elections comprised
93. the very workers whose cause the complainants are championing, and that these
94. were at all material times fully aware and conscious of the above practice;
95. that they expected and accepted the presence of the officials at all the
96. relevant forums, both industrial and political; and that the question of moral
97. judgement does not arise.
98. 373. The Government is of the view that the complainants' allegation
99. regarding the inhibiting effect on collective bargaining of the Minister's
100. adherence to the principle that the ruling party is paramount merely expresses
101. an assumption, which does not promote its case, while that relating to the
102. effect of the oath of Cabinet secrecy is irrelevant and does not support the
103. complainants' contention.
104. 374. The Government avers its support for the right of workers to fair and
105. independent collective bargaining, and says evidence of this is to be found in
106. negotiations recently concluded in respect of wages, salaries and conditions
107. of work in which the complainant unions participated prominently as part of
108. the GTUC negotiating team while the Minister was among those representing the
109. Government.
110. 375. Lastly, the Government points out that only the six complainant unions
111. of a total of 26 unions in the GTUC have found it necessary to raise
112. objections to the constitution of that body.

D. The Committee's conclusions

1. 376. The Committee notes that the judgement concerning the validity and the
   • constitutionality of the Labour (Amendment) Act is still not available and
   • that aspects of this case arising from that legislation cannot therefore yet
   • be given full consideration. Noting that these questions continue to be sub
   • judice, as they have been for more than two years, it trusts that every effort
   • will be made to speed up the process whereby it can reach a conclusion in this
   • respect in full possession of all the relevant information.
2. 377. The Committee has taken note of the information supplied by the
   • Government concerning the procedures proposed for registration and
   • certification of trade unions, through the draft Trade Union Recognition Bill,
3. 1979. In this regard, it notes with some concern the length of time that has
   • elapsed since this measure was submitted for consideration by employers' and
   • workers' organisations and can only once again express the hope that, in
   • relation to the recognition of sole bargaining rights, the Government will
   • find it possible to give effect to the principle that it is not necessarily
   • incompatible with Convention No. 87 to provide for certification of the most
   • representative bargaining union in a given unit as the exclusive bargaining
   • agent, but that there is a need to provide for certain safeguards which
   • include: (a) certification by an independent body, and (b) the choice of the
   • representative organisation by a majority vote of the employees in the unit
   • concerned.
4. 378. The Committee also draws both of these legislative aspects of the case
   • to the attention of the Committee of Experts on the Application of Conventions
   • and Recommendations.
5. 379. On the subject of the dual governmental and trade union functions of
   • members of the GTUC executive, the Committee has taken note of the additional
   • information submitted by the complainants and the observations thereon
   • contained in the reply by the Government. In view of the absence of any
   • specific examples of the effects which this situation may have had on the
   • activities of trade unions or the GTUC, the Committee is not in a position to
   • examine this aspect of the case further. It does, however, call the attention
   • of the Government to its earlier decision that the fact that one of the
   • members of a government is at the same time a leader of a trade union which
   • represents several categories of workers employed by the State creates a
   • possibility of interference in violation of Article 2 of Convention No. 98.
   • (See 84tb Report of the Committee, Case No. 415 (United Kingdom/St. Vincent),
   • para. 62; Digest of Decisions and Principles, 3rd edition, para. 580.)

The Committee's recommendations

1. 380. The Committee recommends the Governing Body to approve the present
2. interim report and, in particular, the following conclusions:
3. (a) The Committee notes that aspects of the case relating to the Labour
4. (Amendment) Act continue to be sub judice, as they have been for more than two
5. years, and trusts that every effort will be made to speed up the process
6. whereby it can reach a conclusion on these matters in full possession of all
7. the relevant information;
8. (b) The Committee notes with some concern the length of time that has
9. elapsed since the draft Trade Union Recognition Bill, 1979 was submitted for
10. consideration by employers' and workers' organisations and once again
11. expresses the hope that, in relation to the recognition of sole bargaining
12. rights, the Government will find it possible to give effect to the principle
13. that it is not necessarily incompatible with Convention No. 87 to provide for
14. certification of the most representative bargaining union in a given unit as
15. the exclusive bargaining agent, but that there is a need to provide for
16. certain safeguards which include (a) certification by an independent body and
17. (b) the choice of the representative organisation by a majority vote of the
18. employees in the unit concerned;
19. (c) The Committee draws the above-mentioned legislative aspects of this case
20. to the attention of the Committee of Experts on the Application of Conventions
21. and Recommendations;
22. (d) As regards the dual governmental and trade union functions exercised by
23. certain members of the GTUC executive, the Committee draws the attention of
24. the Government to its earlier decision that the fact that one of the members
25. of a Government is at the same time a leader of a trade union which represents
26. several categories of workers employed by the State creates a possibility of
27. interference in violation of Article 2 of Convention No. 98.