Demande directe (CEACR) - adoptée 2005, publiée 95ème session CIT (2006)

With reference to its observation, the Committee requests that the Government provide further information or clarification on the following points.

Article 2 of the Convention. (a) Right of workers and employers, without distinction whatsoever, to establish and join organizations. The Committee notes that the Labour Act (Chapter 28:01) does not apply to the prison service (sections 2, 3(2)(b) and 5(a)). The Committee is of the opinion that the functions exercised by prison staff should not justify their exclusion from the right to organize (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 56). The Committee therefore requests that the Government take the necessary measures so as to guarantee the right to establish and join workers organizations to prison staff and keep it informed of the measures taken or envisaged in this respect.

The Committee further notes that under the terms of the Labour Act (section 2), a manager is considered to be an employer. The Committee recalls in this respect that Article 2 of the Convention makes no distinction based on the nature of the functions or the hierarchical level of workers, who should all enjoy the right to organize, including managerial and executive staff. The Committee considers that provisions which prohibit workers in this category from joining trade unions in which other workers are represented are not necessarily incompatible with the Convention, provided they have the right to establish their own organizations and that the right to belong to those organizations is restricted to persons performing senior managerial or decision-making functions. By contrast, legislation which allows for the granting of fictitious promotions to unionized workers without actually according them management responsibilities, thereby effectively placing them in the category of so-called "employers" to whom the right to organize is not permitted, is not in accord with the Convention, since in effect it denies the right of association and artificially reduces the size of the bargaining unit (see General Survey, op. cit., paragraph 66). The Committee asks the Government to indicate how the right to organize of managers is ensured by the legislation and in practice.

(b) Right of workers and employers to establish organizations without previous authorization. The Committee notes that according to section 36(1) of the Labour Act, the Registrar can refuse an application for registration of a trade union or employers’ organization or federation. The Committee further notes that the legislation does not provide for grounds on which such a refusal could be based. The Committee recalls that provisions conferring to the competent authority discretional power to reject a registration request are tantamount to a requirement for previous authorization and are not compatible with Article 2 of the Convention. While noting that according to section 47, any person aggrieved by a decision of the Registrar not to register or certify a trade union or employers’ organization may appeal to the Labour Court, the Committee points out that the existence of the right to appeal to a court is not in itself an adequate safeguard; the competent judges should be able, on the basis of the record, to review the grounds for refusal given by the administrative authorities, which grounds should not be contrary to the principles of freedom of association (see General Survey, op. cit., paragraph 77). The Committee asks the Government to indicate in its next report, the grounds the Registrar may invoke to refuse the registration of a workers’ or employers’ organization.

Article 3. (a) Right of workers to elect their representatives freely. The Committee notes section 51 of the Labour Act, which concerns the supervision of election of officers of a trade union or employers’ organization. According to this section, the Minister may: set aside any election if it was not properly conducted or if the result of the election did not represent the views of the electors; postpone, or change the venue of or procedure for any election; assign responsibility for the conduct of elections to any trade union or employers’ organization; prohibit any person from conducting the election campaign; and make regulations for controlling and regulating elections and for fixing the qualifications for officers of trade unions and employers’ organizations. The Committee recalls that the autonomy of organizations can be effectively guaranteed only if their members have the right to elect their representatives in full freedom. The public authorities should therefore refrain from any interference, which might restrict the exercise of this right, whether as regards the holding of trade union elections or conditions of eligibility of representatives (see General Survey, op. cit., paragraph 112). The Committee asks the Government to take the necessary measures to amend section 51 of the Labour Act so as to ensure the right of workers’ and employers’ organizations to elect their representatives in full freedom and without interference from the authorities is guaranteed.

(b) Right of workers’ organizations to organize their administration and to formulate their programmes. The Committee notes sections 28(2), 54(2) and (3) and 55 of the Labour Act which confer to the Minister extensive powers to regulate trade union dues as well as to regulate such matters as staff that may be employed by trade unions, their salaries and allowances, as well as the equipment and property that may be purchased by trade unions. The Committee observes that problems of compatibility with the Convention arise when the law gives authorities such powers as powers to specify the amount of dues members should pay to their organizations and the proportion of dues that have to be paid to the federations. The Committee further recalls that freedom of workers’ and employers’ organizations to organize their administration implies that these organizations should be able to dispose of all their fixed and movable assets unhindered (see General Survey, op. cit., paragraphs 126 and 127). The Committee therefore requests that the Government take the necessary measures to amend sections 28(2), 54(2) and (3) and 55 of the Labour Act so as to ensure the right of workers and employers’ organizations to organize their administration without interference by the public authorities and keep it informed in this respect.

The Committee also notes that section 120(1) stipulates that the Minister may order that any trade union or federation be investigated if the Minister has reasonable cause to believe that the property or funds of any trade union, or federation are being misappropriated or misapplied, or that the affairs of any trade union, or federation are being conducted in a manner that is detrimental to the interests of its members as a whole. Under the terms of subsection (2), the Minister can appoint an investigator who shall at all reasonable times and without prior notice, enter any premises (paragraph (a)); question any person employed on the premises (paragraph (b)); and inspect and make copies of and take extracts from any books, records or other documents on the premises (paragraph (c)). The Committee considers that the abovementioned provisions give rise to two different sets of problems from the standpoint of freedom of association. As regards section 120(2)(a) and (b), the Committee recalls that the right of the inviolability of trade union premises necessarily implies that the public authorities may not insist on entering such premises without prior authorization or without having obtained a legal warrant to do so and any search of trade union premises, or of unionists’ homes, without a court order, constitutes an extremely serious infringement of freedom of association. Moreover, searches of trade union premises should be made only following the issue of a warrant by the ordinary judicial authority where that authority is satisfied that there are reasonable grounds for supposing that evidence exists on the premises which are material to a prosecution for a penal offence and on condition that the search be restricted to the purpose in respect of which the warrant was issued. The Committee is of the view that paragraphs (a) and (b) of subsection (2), which authorize an investigator appointed by the Minister to enter trade union premises and question any person employed there at all reasonable times and without prior notice, clearly do not respect the principles enunciated above. Secondly, as regards paragraph (c) of subsection (2), which authorizes an investigator, at all reasonable times and without prior notice, to inspect and make copies and take extracts from any books, records or other documents on trade union premises, the Committee considers that the control exercised by the public authorities over trade union finances should not normally exceed the obligation to submit periodic reports. The discretionary right of the authorities to carry out inspections and request information at any time entails a danger of interference in the internal administration of trade unions. Moreover, as regards certain measures of administrative control over trade union assets, such as financial audits and investigations, the Committee considers that these should be applied only in exceptional cases, when justified by grave circumstances (for instance, presumed irregularities in the annual statement or irregularities reported by members of the organization), in order to avoid any discrimination between one trade union and another and to preclude the danger of excessive intervention by the authorities which might hamper a union's exercise of the right to organize its administration freely, and also to avoid harmful and perhaps unjustified publicity or the disclosure of information which might be confidential. The Committee considers, consequently, that the powers of supervision contained in paragraph (c) of subsection (2) are excessive and therefore asks the Government to take the necessary measures to ensure that section 120(2) of the Labour Act is amended so as to bring in into conformity with the Convention. The Committee further requests that the Government keep it informed of any progress made in this regard.

(c) Right to strike. The Committee notes that under the terms of section 102 of the Labour Act, the Minister can declare any service essential. The Committee notes that strike in essential services as defined in section 102 is prohibited and considered to be unlawful collective action under the terms of section 104(3)(a)(i). The Committee points out that essential services are only those the interruption of which would endanger the life, personal safety or health of the whole or part of the population (see General Survey, op. cit., paragraph 159). It therefore asks the Government to take the necessary measures to delete reference to the power of the Minister to declare a service essential, and thus prohibit the exercise of the right to strike, from section 102 and to keep it informed in this respect.

Furthermore, a strike action taken without an agreement of the majority
of the employees is also considered to be unlawful collective action
(section 104(3)(e)). The Committee requests that the Government amend this section so as to ensure when a vote by workers is required in order to call a strike, account is taken only of the votes cast and to keep it informed in this respect.

The Committee also notes that, in the case of unlawful collective action being organized, excessive sanctions are provided. Sections 109 and 112 establish possible imprisonment of the individual engaged in an unlawful collective action, while section 107 gives the power to the Labour Court to dismiss the individual engaged in such action and to suspend or rescind the registration of the trade union involved in such action. In respect of the sanctions of imprisonment, the Committee emphasizes that all penalties in respect of illegitimate actions linked to strikes should be proportionate to the offence or fault committed and the authorities should not have recourse to measures of imprisonment for the mere fact of organizing or participating in a peaceful strike. Further, concerning the sanctions of dismissal and dissolution, the Committee recalls that no one should be penalized for carrying out or attempting to carry out a legitimate strike and that, in any case, the sanctions imposed should not be disproportionate to the seriousness of the violations (see General Survey, op. cit., paragraph 178). Therefore, the Committee asks the Government to amend sections 109 and 112 of the Labour Act so as to bring it into conformity with Article 3 of the Convention and to keep it informed of the measures taken or envisaged in this respect.