Demande directe (CEACR) - adoptée 1998, publiée 87ème session CIT (1999)

The Committee notes the information provided in the Government's first report.

Article 2 of the Convention. Exclusion of certain workers. The Committee notes that the Constitution provides that "Every citizen is entitled to ... (c) the freedom of association; (d) the freedom to form and join a trade union." (article 14(1)). Article 14(1)(c) can be restricted "in the interests of racial and religious harmony or national economy" (article 15(4)), and article 14 generally can be restricted "in the interests of national security, public order and the protection of public health or morality ..." (article 15(7)). While not all of these limitations seem to be reflected in the Trade Unions Ordinance, the Committee requests the Government to provide information as to whether and to what extent those who are not citizens are protected by the rights provided for under the Convention, and how the limitations under article 15 of the Constitution have been applied, and to forward any relevant Acts or Regulations in this context.

The Committee notes further that the Trade Unions Ordinance, providing for the establishment and functioning of trade unions, excludes certain groups from its scope, and deems that any association or combination of such employees shall be deemed not to be a trade union (section 20(2)): judicial officers, members of the armed forces, police officers, prison officers and members of any corps established under the Agricultural Corps Ordinance. The Committee recalls that the Convention requires that workers and employers, without distinction whatsoever, are to have the right to establish and join organizations of their own choosing, with the only possible exception being the armed forces and the police. Therefore, judicial officers, prison officers and members of corps established under the Agricultural Corps Ordinance should have the right to form and join trade unions. Noting the Government's statement that this restriction has been placed "due to the very nature of their duties being considered as essential", the Committee recalls that restrictions can be imposed on the right to strike in essential services, as strictly defined, but being characterized as essential should not result in a prohibition to associate. The Committee requests the Government to specify whether these workers can otherwise associate to further and defend their occupational interests.

The Committee notes that a minimum age limit is also imposed for the joining of a trade union. Pursuant to section 31 of the Trade Unions Ordinance, a person must be above the age of 16 to join a trade union. The Government is requested to inform the Committee whether this is also the minimum age for employment, recalling that Article 2 applies to workers, regardless of age; therefore if a person has attained a sufficient age to be a worker, he or she should be able to belong to a trade union.

The right of public servants to join and establish organizations of their own choosing. The Committee notes that generally there is no limitation placed on the types of trade unions that may be established, with the exception of trade unions of "public officers". The Government states in its report that the Trade Unions Ordinance restricts the registration of public service trade unions, unless, inter alia, they restrict membership of the union or for any office, solely to public servants who are employed in any one specified department or service of the Government, or specified class or category (section 21(1)(a)). The Government also refers to Chapter XXXV of the Establishment Code, which restricts public officials from joining trade unions by: (a) prohibiting public officers from becoming members of any trade union which permits persons who are not public officers to be members; and (b) prohibiting any person who is not a public officer being appointed to be a patron or office bearer, or admitted to membership of any organization of officers, except as provided for under the Trade Unions Ordinance. The Committee considers that it is admissible for first-level organizations of public servants to be limited to that category of workers, subject to two conditions: (i) that their organizations are not also restricted to employees of any particular ministry, department or service; (ii) that they may freely join federations and confederations of their own choosing, including organizations of workers in the private sector. However, provisions stipulating that different organizations must be established for each category of public servants, as is the case under section 21, are incompatible with the right of workers to establish and join organizations of their own choosing (see General Survey on freedom of association and collective bargaining, 1994, paragraph 86). It should be noted, however, that senior staff who play a decisive role in determining and implementing major policies and guidelines in the public sector can be restricted from joining trade unions open to lower-grade employees (see General Survey, op. cit., paragraphs 87 to 88). In this context, the Government is requested to provide more information concerning the definition, in law and in practice, of "public officer", "peace officer" and "government staff officer" in section 21, and to review the provision with the aim of bringing it into closer conformity with the requirements of the Convention. The Committee also requests the Government to forward a copy of the Establishment Code.

Representativeness. The Industrial Disputes Act introduces the concept of a "sufficiently representative" trade union, in which case a collective agreement in force may be extended by order of the Minister (section 10). The Committee requests the Government to provide information concerning how representativeness is determined in law and in practice, recalling that it accepts that the recognition of the most representative trade union is not a violation of the right of workers to establish and join organizations of their own choosing, provided certain conditions are met, including that the determination is based on objective, pre-established and precise criteria (see General Survey, op. cit., paragraph 97).

Article 3 (Right to draw up their constitutions and rules). The Committee notes that section 47 of the Trade Unions Ordinance establishes procedures and limitations for maintaining a political fund and for making payments in furtherance of political objects. The Committee notes in particular that no assets of a trade union not forming part of the political fund shall be directly or indirectly applied in furtherance of any political object, which in the view of the Committee could be applied in practice to restrict a wide range of expenditures, and thus constitute interference in the internal affairs of a trade union. The Committee suggests that the legislation be reviewed and revised to provide for some degree of flexibility so that a reasonable balance can be achieved between the legitimate interest of organizations in matters of economic and social policy affecting their members and workers in general, and the separation of political activities in the strict sense of the term and trade union activities (see General Survey, op. cit., paragraph 133).

Articles 3 and 10. Noting that the Industrial Disputes Act, which provides for conciliation, arbitration, industrial court and labour tribunal procedures, does not apply to the public service due to section 49, the Committee requests the Government to provide information concerning dispute settlement for the public service. The Committee notes that the Industrial Disputes Act generally provides for mandatory conciliation where there is an industrial dispute, and arbitration with the consent of the parties (section 3). However, there are situations where strikes can be brought to an end through compulsory arbitration or adjudication. Section 40 provides that it is an offence to strike where the industrial dispute has been referred for settlement to arbitration or an industrial court. Every person who commits an offence under the Act, is liable on conviction to a fine or up to six months' imprisonment, or both (section 43; see also section 41). The Committee notes that section 4(2) empowers the Minister to refer an industrial dispute to arbitration without the consent of the parties, where the Minister is of the opinion that the industrial dispute is a "minor dispute". This term is not defined, and, in the view of the Committee, gives broad power to the Minister to refer a dispute to arbitration. There does not appear to be any appeal from the decision of the Minister. An even broader power appears to be given to the Minister under section 4(2), which provides that "the Minister may, by an order in writing, refer any industrial dispute to an industrial court for settlement".

In this context, the Committee recalls the importance of the right to strike as one of the essential means available to workers and their organizations for the promotion and protection of their economic and social interests, and that this right may only be limited or prohibited in specific circumstances, namely in essential services as narrowly defined, ie. services the interruption of which would endanger the life, personal safety or health of the population, and with respect to public servants engaged in the administration of the State (see General Survey, op. cit., paragraphs 147, 158 and 159). The Committee is of the view that section 4 of the Industrial Disputes Act clearly goes beyond the permitted scope of restrictions; thus the Government is requested to amend the legislation to bring it into fuller conformity with the requirements of the Convention. In addition, noting that some of the past Public Security Ordinances contained broad powers to restrict activities interfering with "essential services", defined more broadly than is accepted by the supervisory bodies, the Committee requests the Government to specify which Public Security Ordinances are in force, if any, and to forward copies of these Ordinances.

Article 4. The Committee notes that pursuant to the Trade Unions Ordinance, the Registrar may withdraw or cancel a certificate of registration in a number of circumstances; this decision can be appealed to the District Court, and a further appeal to the Court of Appeal is available (sections 15, 16, 17). However, once the withdrawal or cancellation takes place, even if an appeal has been launched, the trade union is deemed to be an unlawful association and ceases to enjoy any rights, immunities or privileges of a registered trade union, the trade union is not to take part in strikes, and its funds are disposed of in accordance with its rules (section 18). The Committee recalls that legislation should not allow dissolution or suspension of an organization by administrative authority; if it does, the organization affected by such measures must have the right of appeal to an independent and impartial judicial body which is competent to examine the substance of the case, and the administrative decision should not take effect until a final decision is handed down (see General Survey, op. cit., paragraph 184). The Government is, therefore, requested to amend the legislation to ensure that the decision of the Registrar to withdraw or cancel registration does not take effect until the appeal procedures have been exhausted.

Article 5. The Committee notes that generally there is no limitation on establishing federations under the Trade Unions Ordinance; however, section 21(1)(b) provides that the Registrar is to refuse to register any trade union of peace officers or government staff officers unless the rules of the union contain a provision declaring that "the union shall not be affiliated to or amalgamated or federated with any other trade union whether of public officers or otherwise ...". The Committee notes that this is not in conformity with Article 5 which requires that workers' and employers' organizations have the right to establish and join federations and confederations. The Committee requests the Government to take measures to have the provision amended so that all workers' and employers' organizations are entitled to establish and join federations and confederations. With reference to section 21(1)(a), the Committee requests the Government to specify whether this provision in any way inhibits first-level public service unions from joining general federations. In this context, the Committee recalls that while first-level organizations of public servants may be restricted to this category of workers, such organizations should be free to join federations and confederations of their choosing, including those which also group together organizations from the private sector (see General Survey, op. cit., paragraph 193).

The Committee requests the Government to inform it in its next report of any measures taken or contemplated to bring the legislation into fuller conformity with the requirements of the Convention.