Demande directe (CEACR) - adoptée 2003, publiée 92ème session CIT (2004)

The Committee takes note of the Government’s first report with interest.

Article 2 of the Convention. Right of employers and workers to establish and join organizations of their own choice without previous authorization. The Committee notes that section 2(2)(c) and (d) of the Labour Act No. 12 of 1990 (the Act) excludes from its scope the prison service and domestic workers. The Committee is of the opinion that the functions exercised by prison staff should not justify their exclusion from the right to organize; similarly, domestic staff is not excluded from the scope of the Convention and should therefore be covered by the guarantees afforded therein concerning the right to establish and join occupational organizations (see General Survey of 1994 on freedom of association and collective bargaining, paragraphs 56 and 59). The Committee requests the Government to indicate the provisions which guarantee prison staff and domestic servants the right to establish and join organizations of their own choosing.

The Committee notes that the civil service is excluded from the scope of the Act by virtue of section 2(2)(a). The Committee also notes from the Government’s report that public officers are subject to the General Orders as well as the Public Service Act and Regulations. The Committee considers that the guarantee of the right of association should apply to public servants like all other workers, public or private (see General Survey, op. cit., paragraph 48). The Committee therefore requests the Government to indicate the provisions in the General Orders, the Public Service Act and Regulations or any other legislative text, which guarantee the right of public servants to establish and join organizations of their own choosing and to transmit the relevant texts.

The Committee notes that section 128(4)(a) of the Act establishes a minimum membership requirement of 50 workers for the registration of a trade union. The Committee is of the view that this requirement is excessively high (see General Survey, op. cit., paragraphs 81 and 83). It therefore requests the Government to amend section 128(4)(a) so as to lower the minimum membership requirement.

The Committee notes that under section 128(2), the Registrar is supposed to keep two types of registers: one for trade unions and one for trade unions registered as efficient and that section 142 of the Act sets out a list of requirements to determine whether an organization can be registered as efficient. The Committee requests the Government to provide information on the purpose of these two separate registries and the manner in which they function in practice.

The Committee notes that section 131(4) of the Act provides that an appeal may be lodged before the Supreme Court on any failure by the Registrar to register an organization at any time after six months from the date of the application to register. The Committee also observes that since the registration procedure may take up to four months, in accordance with sections 129, 130 and 131(3) of the Act, the six-month period established in section 131(4) may impede for two months the lodging of an appeal against the Registrar’s refusal to register a trade union. The Committee is of the view that, while trade unions should have the right to appeal to independent courts against any administrative decision regarding their registration, the existence of the right to appeal is not in itself an adequate safeguard: the competent judges should be empowered to give a ruling rapidly (see General Survey, op. cit., paragraph 77). The Committee requests the Government to amend section 131(4) so as to eliminate these restrictions to the right of appeal against a Registrar’s decision denying registration and to enable appeals from the moment of the Registrar’s decision.

The Committee observes that section 131(1)(f) provides that the Registrar may refuse to register an organization consisting of persons engaged or working in more than one trade or occupation unless and until he is satisfied that the rules of the organization contain provision adequate to protect the sectional interests of such persons. The Committee considers that the appropriateness of the rules of a trade union for the protection of the interests of its members should be up to the members themselves to evaluate. The Committee notes therefore that the power conferred on the Registrar to evaluate the appropriateness of the rules amounts to a requirement of previous authorization. The Committee requests the Government to amend section 131(1)(f) so as to eliminate the requirement of previous authorization for the establishment of organizations the members of which are engaged in more than one trade or occupation.

Article 3. Right of employers’ and workers’ organizations to organize their administration and to formulate their programmes. The Committee notes that, according to section 135(1) of the Act, where any part of the accounts of an organization is, in the opinion of the Registrar, inadequate, incomplete or misleading so that he is unable to ascertain with certainty the absence of irregularity or fraud, the Registrar may in his discretion call for any books, records or other documents for examination by himself or by an auditor nominated by him. The Committee also notes that there is no explicit right to appeal to the Courts against the decision of the Registrar. The Committee is of the view that verification of accounts should be limited to exceptional cases, for example in order to investigate a complaint, or if there have been allegations of embezzlement. Moreover, both the substance and the procedure of such verifications should be subject to review by the competent judicial authority affording every guarantee of impartiality and objectivity (see General Survey, op. cit., paragraph 125). The Committee therefore requests the Government to amend section 135 so as to ensure that the Registrar has the power to verify the accounts of employers’ and workers’ organizations only in exceptional cases where there is evidence of irregularity in the handling of finances and that the substance and procedure of such verifications is subject to judicial review.

The Committee notes that, according to section 135(2)(b), the financial information to be provided for verification by the Registrar includes the estimated arrears of members’ dues and a note of the steps taken to collect or write off any arrears of more than three months’ standing. Moreover, the Committee observes that, according to section 137(7)(c), the Registrar may initiate civil proceedings if it appears expedient to do so for the benefit of the members of the organization, for the recovery of any monies due to the organization. The Committee considers that the payment of arrears is an internal matter of trade unions and the administrative authorities should not have the power to request information thereon or to initiate civil proceedings for the payment of such arrears. The Committee therefore requests the Government to amend sections 135(2)(b) and 137(7)(c) so as to ensure that there is no interference by the administrative authorities with regard to the payment of arrears in trade union dues.

The Committee further notes that section 169 only provides for check-off payments in respect of union membership dues for sole bargaining agents. The Committee considers that such an approach is likely to disfavour other duly registered organizations in a manner contrary to the Convention and requests the Government to consider taking measures to promote the provision of check-off facilities for all registered unions.

Finally, noting with interest that essential services are defined in section 3 of the Act as services which, if interrupted, would be likely to endanger the life or health of the community or a substantial part thereof, the Committee requests the Government to provide any relevant texts designating services as essential and to indicate how this determination is made.