Observation (CEACR) - adoptée 2002, publiée 91ème session CIT (2003)

The Committee notes that the Government’s report has not been received. It must repeat its previous observation which read as follows:

In its previous comments, the Committee recalled the need to amend sections 59(4)(a), 61, 65 and 67 of the Industrial Relations Act, 1972, as amended, which can be applied to prohibit a strike which has not been declared by a majority union, or at the request of one party, or in services which are not essential in the strict sense of the term, or when the Minister considers that the national interest is threatened, under penalty of six months’ imprisonment.

The Committee had noted from the Government’s latest report that the Tripartite Committee established to review the Industrial Relations Act had reviewed these sections and had agreed that these provisions were in keeping with the cultural and legislative environment of the country and were, therefore, in no way objectionable to the parties in the collective bargaining process. The Tripartite Committee did not view these provisions as a deterrent to the Government’s conformity with Convention No. 87.

As concerns the prohibition under section 67 of industrial action in essential services, the Committee notes the inclusion of sanitation services and a public school bus service in the list of essential services in schedule 2 and considers that such services cannot be considered to be essential in the strict sense of the term. In this respect, the Committee draws the Government’s attention to paragraph 160 of its 1994 General Survey on freedom of association and collective bargaining wherein it states that, in order to avoid damages which are irreversible or out of all proportion to the occupational interests of the parties to the dispute, as well as damages to third parties, the authorities could establish a system of minimum service in other services which are of public utility rather than impose an outright ban on strikes, which would be limited to essential services in the strict sense of the term. Noting further that section 69 appears to prohibit the teaching service and employees of the Central Bank from taking industrial action, under penalty of 18 months’ imprisonment, the Committee requests the Government to indicate whether these restrictions are still in force and, if so, to take the necessary measures to repeal them so that teachers and bank employees are not prohibited from undertaking industrial action.

As concerns the Minister’s power under section 61 to refer a dispute to the Court and, under section 65, in cases where the national interest is threatened or affected, the Committee considers that such powers should be limited to essential services in the strict sense of the term, as indicated above, to public servants exercising authority in the name of the State and to cases of acute national crisis.

As concerns the possibility of prohibiting a strike which has not been declared by a majority union (section 59(4)(a)), the Committee recalls that the requirement that the exercise of the right to strike be subjected to prior approval by a certain percentage of workers is not in itself incompatible with the Convention. On the other hand, legislative provisions which require a vote by workers before a strike can be held should ensure that account is taken only of the votes cast, and that the required quorum and majority are fixed at a reasonable level (see 1994 General Survey, op. cit., paragraph 170). The Committee considers that the prohibition of strike action by non-majority unions could result in the restriction of the right to strike even where a simple majority of the workers in the bargaining unit, excluding those workers not taking part in the vote, have voted in favour of the strike.

In light of the above, the Committee once again urges the Government to take the necessary measures to bring the legislation into conformity with the Convention and requests the Government to indicate the progress made in this respect.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.