Demande directe (CEACR) - adoptée 2006, publiée 96ème session CIT (2007)

The Committee notes the Government’s report and the comments submitted by the International Confederation of Free Trade Unions (ICFTU) on 10 August 2006 concerning matters previously raised by the Committee.

Article 2. Right of workers and employers, without distinction whatsoever, to establish and join organizations. The Committee had previously requested the Government to ensure the right to organize to employees in the prison service and to provide clarifications on the types of workers in the national service, both services being excluded from the scope of the Employment and Labour Relations Act (ELRA) under section 2(1)(iii) and (iv), respectively. The Committee notes the Government’s indication that the prison service and the national service are excluded from the right to organize as they are based on military force: the nature of the duties in these services is such as to require a different working environment, with stricter rules than those provided for under the ELRA. In this connection, the Committee once again recalls that the only admissible exceptions to the right to organize are those explicitly provided for under Article 9 of the Convention, i.e. the armed forces and the police. All other categories of workers, without distinction whatsoever, should enjoy the right to establish and join organizations of their own choosing. The Committee considers that the functions exercised by prison guards are different from the regular functions of the army and the police and do not justify their exclusion from the right to organize (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 56). Accordingly, the Committee once again requests the Government to amend section 2(1)(iii) of the ELRA so that prison guards enjoy the right to establish and join organizations of their own choosing. With regard to the national service, the Committee regrets that the Government has not provided adequate information on the types of workers included in this category and requests the Government to include this information in its next report so that it may assess whether they qualify for the exceptions of Article 9 of the Convention.

Right of workers and employers to establish organizations without previous authorization. The Committee had previously referred to the absence of specific time limits within which the trade union registration procedure should be concluded. Noting the Government’s statement that the time limit provided under the Act is intended to ensure that freedom of association is not abused by allowing unions to organize and bargain without legitimacy, the Committee points out that section 48 of the ELRA, which provides for the process of registration, does not set forth a time period in which the registrar must either approve or refuse an organization’s application. The Committee recalls, in this connection, that problems of compatibility arise where the registration procedure is long and complicated (see General Survey, op. cit., paragraph 75). It requests the Government to consider amending the ELRA so as to provide for a reasonable time period for the processing of applications for registration.

Article 3. Right to strike. The Committee had previously noted that sections 4 and 85 of the ELRA allow for protest action, i.e. strikes in disputes that are not interest disputes, but that, under section 4, such action is apparently not lawful when taking place in relation to “a dispute in respect of which there is a legal remedy”. The Committee notes the Government’s statement that protest action may apply in such circumstances as a means to promote and defend the socioeconomic interests of workers, and that when a dispute has a legal remedy, protest action becomes unlawful and any aggrieved party should pursue the matter through the procedures prescribed under the ELRA. In this connection the Committee recalls that the solution to legal conflicts arising as a result of a difference in the interpretation of a legal text should be left to the competent courts, and that the prohibition of strikes in such situations does not constitute a breach of freedom of association. However, prohibiting protest action in respect of all disputes possessing a legal remedy may unduly infringe upon the right to strike. In this connection, the Committee once again asks the Government to provide information on the scope of section 4’s definition of protest action – in particular the types of dispute referred to for which there might be a legal remedy.

The Committee notes that section 76(3)(a) of the ELRA prohibits picketing in support of a strike, or in opposition to a lawful lockout. In this regard, the Committee recalls that it considers that restrictions on strike pickets should be limited to cases where the action ceases to be peaceful (see General Survey, op. cit., paragraph 174). It requests the Government to amend section 76(3)(a) accordingly.

The Committee had previously noted that section 22 of the draft Public Service (Negotiating Machinery) Bill prohibits strike by “staff grade officers”, a category that, as set out in section 2(c) and (d), includes the heads of public learning institutions and any other government employee declared as a staff grade officer by the Minister of Public Service Management. In this regard, the Government indicates that staff grade officers are prohibited from taking part in strikes as they are policy-makers, responsible for the supervision and implementation of the policies so formulated. The Government adds that staff grade officers represent the interests of management, therefore allowing them to strike would be akin to allowing the institutions they represent to strike against themselves. In these circumstances, the Committee once again recalls that the right to strike may be restricted for public employees only when they are exercising authority in the name of the State (see General Survey, op. cit., paragraph 158). The Committee once again requests the Government to modify section 22 of the draft Public Service (Negotiating Machinery) Bill so as to fully guarantee the right to strike of public employees not engaged in the administration of the State, including head teachers and school directors, and to inform it of the progress made with respect to the Bill’s adoption.

The Committee regrets that the Government provides no information on other provisions of the legislation addressed by the Committee in its previous comment. It expresses the hope that the Government’s next report will provide information in respect of those legislative issues, which it repeats as follows:

(a)   any designations of essential services that the Essential Services Committee has made under section 77 of the Employment and Labour Relations Act; and

(b)   sections 12, 13(b), 15, 17(1) and (2), and 19 of the draft Public Service (Negotiating Machinery) Bill which establish a system of compulsory arbitration at the discretion of the authorities for the determination of the terms and conditions of employment of operational service public employees (i.e. supporting staff not employed in the executive or officer grade).

With respect to Zanzibar, the Committee notes with regret that once again the Government has provided no response to its previous comments concerning the Trade Union Act (TUA). Accordingly, the Committee once again requests the Government to:

(a)   lower the minimum membership requirement of 50 workers (section 14(1) of the TUA) and eliminate the minister’s discretionary power to grant registration regardless of this requirement (section 14(3) of the TUA);

(b)   enable workers engaged in more than one occupation to establish and join more than one trade union (section 21(1)(d) of the TUA);

(c)   limit the registrar’s discretionary power to refuse to register a trade union if it consists of persons engaged in more than one trade union or calling and if, in his/her view, its constitution does not contain suitable provisions for the protection and promotion of its interests (section 21(1)(d) of the TUA);

(d)   abolish the absolute prohibition of performing any act prior to trade union registration (section 24(1) of the TUA);

(e)   modify the occupational requirement that all union members and officials be engaged in an industry or occupation in which the union is directly concerned (section 29(1) of the TUA), and eliminate the registrar’s discretionary authority to permit any union office to be held by a person not actually engaged or employed in an industry or occupation in which the union is directly concerned (section 29(1) and (3) of the TUA);

(f)    eliminate the literacy requirement for trade union office (section 29(4) of the TUA);

(g)   eliminate the requirement of previous authorization by the registrar for any expenditure which is not expressly authorized in the law (section 42(2)(t) of the TUA); and

(h)   eliminate the possibility for the registrar to require an account of the financial situation of a trade union at any time (section 45(1) of the TUA).

Finally, the Committee again requests the Government to provide any information on:

(a)   the right of trade unions to join federations and confederations in the form and manner deemed most appropriate by the workers concerned (sections 2, 32 and 33 of the TUA);

(b)   the provisions that ensure that, in exercising his functions as liquidator, the registrar should make sure that the assets of dissolved trade unions are used for the purposes for which they were acquired (section 38(3) of the TUA);

(c)   the measures taken to establish objective, pre-established and precise criteria for the recognition of most representative unions (section 54 of the TUA);

(d)   any cases in which section 56 of the TUA has been applied and any measure taken or envisaged to ensure that pickets are sanctioned only in cases where the action ceases to be peaceful;

(e)   any regulations made by the minister on the manner in which trade unions and their constitutions shall be registered (section 66(2) of the TUA);

(f)    any regulations made by the Minister on matters related to trade union registers and inspection, the safe custody of trade union funds and the management of benevolent trade union funds (section 66(2)(b), (d), (e), (f) and (g) of the TUA); and

(g)   the manner in which the right to strike is ensured in Zanzibar.

The Committee again expresses the hope that the Government will make every effort to bring its legislation into full conformity with the Convention and provide detailed information on the abovementioned points in its next report.