Observation (CEACR) - adoptée 1999, publiée 88ème session CIT (2000)

The Committee notes the Government's report.

1. In its previous comments, the Committee had referred to the prohibition in section 17(2) of the Industrial Relations Act (IRA) of negotiations relative to promotion, transfer, appointment, dismissal and assignment of duties. The Committee had considered that while issues such as promotion, appointment and assignment of duties could eventually be considered as a matter for the employer to decide on as part of his freedom to manage the enterprise, the other issues, namely transfer and dismissal that are currently excluded from negotiation by virtue of section 17(2) of the IRA, should not be excluded from the scope of collective bargaining.

The Committee notes the Government's statement that on the issue of transfer, section 17(2)(b) of the IRA allows management to transfer an employee within a company only where the transfer will not be detrimental to the terms of his employment. However, where the employee and his union consider the transfer to be detrimental, the transfer will still be an issue for collective bargaining. On the issue of termination and dismissal (section 17(2)(d) and 17(2)(e)), the Government states that in situations where the termination of service or dismissal involves possible victimization of union members or union officials, the union can lodge an appeal under section 35(1) of the Act with the view to referring the case to the Industrial Arbitration Court and to seek reinstatement on the basis that the employee concerned was dismissed in circumstances arising out of a contravention of section 82(1) of the Act. This provision seeks to protect employees who could be victimized by their employers due to their involvement as union members or leaders in pursuance of better terms and conditions of employment. If the employer concerned is found to have violated this provision, he may also be liable on conviction to a fine or to imprisonment. Moreover, under the terms of the IRA, any termination of service or dismissal without just cause entitles the employee to seek reinstatement through appeal procedures.

The Committee takes due note of this information.

2. With regard to section 25 of the IRA which governs collective agreements with terms more favourable than those provided in Part IV of the Employment Act, the Government indicates that essentially, section 25 of the IRA subjects employers and trade unions to seek approval from the Minister for Manpower if annual leave and sick leave benefits stipulated in their collective agreement are to be more favourable than that stated in Part IV of the Employment Act. In practice, the Minister in the last two decades has not rejected any application to grant better leave benefits. On annual leave, economic progress over the years has brought about the granting of annual leave far beyond the minimum standards provided under Part IV of the Employment Act. Similarly, on sick leave, the benefit granted by employers due to the favourable employment situation has also been greatly enhanced over the years. The norm is now either in line or higher than the standards stipulated in the Employment Act. Hence, section 25 of the IRA appears to have outlived its usefulness and the Government is considering its removal from the Act. The Committee trusts that the Government will take appropriate steps to repeal section 25 of the IRA in the near future so as to ensure that the right to bargain collectively is fully recognized in newly established enterprises. It requests the Government to inform it of any progress made in this regard in its next report.