Demande directe (CEACR) - adoptée 2007, publiée 97ème session CIT (2008)

The Committee takes note of the Government’s first report as well as the comments of the Federation of Parastatal Bodies and other Unions (FPBOU) transmitted with the Government’s report.

The Committee also notes the comments of the International Confederation of Free Trade Unions (ICFTU) dated 10 August 2006, concerning practical obstacles to the organization of workers – especially migrant workers – in export processing zones and the offshore business sector, as well as police repression of a demonstration by Chinese migrant workers in the EPZ/textile sector. The Committee notes the Government’s reply thereto, according to which on the one hand, migrant workers have the same freedom of association rights as local workers and on the other hand, the police showed great restraint in the face of fierce and violent attacks from disgruntled workers and gas and minimum force were used only as a last resort to restore law and order. The Committee requests the Government to provide in its next report statistical information on the unionization levels of migrant workers in EPZs and offshore companies.

The Committee recalls that in its previous direct request it referred to the need to revise the Industrial Relations Act (IRA) in order to bring it into line with the Convention. In this respect, it notes with interest the text of the Employment Relations Bill, 2007 which contains significant improvements in relation to the freedom of association provisions of the IRA, currently in the process of amendment. Trusting that the Government will make every effort for the swift passage of the Bill into law, the Committee will confine its comments to the provisions of the Bill. The Committee requests the Government to indicate in its next report made progress with regard to the introduction of the Bill to Parliament and its adoption.

The Committee notes with interest that the Employment Relations Bill, 2007, recognizes among other things the right to organize of firefighters and prison officers and largely abolishes the discretionary powers of the Registrar over the establishment and activities of trade unions. However, certain discrepancies remain between some provisions of the Bill and the Convention, especially in relation to the mechanism for the resolution of industrial disputes.

Article 2 of the Convention. Right to organize. The Committee observes that section 13(1)(b) and (c) of the Employment Relations Bill provides that trade union members should be either engaged in any undertaking, business or occupation or have been a worker at any time for an aggregate period of not less that 18 months. The Committee recalls that Article 2 of Convention No. 87 provides that workers without distinction whatsoever should have the right to establish and join organizations and observes that as it stands, section 13(1)(c) prevents workers with less than 18 months of employment from joining trade unions. The Committee therefore requests the Government to indicate in its next report the measures taken so as to lift the phrase “for an aggregate period of not less than 18 months” in section 13(1)(c) of the Bill.

The Committee further observes that section 5(1)(f) of the Employment Relations Bill requires ten employers in order to establish a “trade union of employers”. Considering this requirement excessively high, (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 81 footnote 71), the Committee requests the Government to indicate in its next report the measures taken to lower this requirement.

Article 3. Right of trade unions to draw up their constitutions and rules and to organize their administration and activities. The Committee notes that section 22 of the Employment Relations Bill provides that the Registrar may, upon a complaint from a member of a trade union, conduct an inquiry into a possible misapplication of funds and make an application to a district court which might order appropriate remedies. In addition to this, section 29 provides that the Registrar may investigate into the affairs and finances of the trade union, inspect its books and require information from trade union officers, either upon a complaint by a member, or if he/she has reasonable grounds to suspect that mismanagement is taking place upon examination of the union’s annual return. The Committee recalls that Article 3 guarantees the right of workers’ organizations to organize their administration and activities without interference from the public authorities. The Committee considers that in order to avoid the risk of interference in trade union activities, the requirement of a complaint by a single member should be raised to a certain percentage of members and requests the Government to indicate in its next report the measures taken so as to amend the provisions of the Bill in accordance with the above.

The Committee observes that section 47(1)(c) of the Employment Relations Bill provides that where a worker gives written notice of the intention to cease payment of trade union fees, this notice shall take effect on the last day of the sixth month following the month in which the notice was given. The Committee recalls that Article 3 guarantees the right of trade unions to draw up their constitutions and rules without interference. It thus requests the Government to indicate in its next report the measures taken to amend section 47(1)(c) so as to allow for the matter of cessation of trade union fees to be determined in accordance with the trade union rules.

Article 3. Right to strike. The Committee observes that section 79(1)(a) of the Employment Relations Bill indicates that every worker has the right to strike in relation to a labour dispute and section 80 provides that no person shall take part in a strike where the labour dispute does not relate to the collective interest of a group of workers. Section 2 of the Employment Relations Bill defines a labour dispute as a dispute between a trade union and an employer which relates wholly or mainly to wages, terms and conditions of employment, promotion, etc. as well as procedural matters and facilities. The Committee observes that these provisions do not allow for solidarity strikes, or strikes related to matters of general economic policy, or strikes linked to negotiations above the enterprise level. The Committee has repeatedly noted in the past that, while purely political strikes do not fall within the scope of freedom of association, organizations responsible for defending workers’ socio-economic and occupational interests should, in principle, be able to use strike action to support their position in the search for solutions to problems posed by major social and economic policy trends which have a direct impact on their members and on workers in general, in particular as regards employment, social protection and the standard of living (see General Survey, op. cit., paragraph 165). Thus, workers’ organizations, including federations and confederations, should be able to call for industrial action at levels above that of the enterprise. Moreover, a general prohibition of sympathy strikes could lead to abuse and workers should be able to take such action provided the initial strike they are supporting is itself lawful (see General Survey, op. cit., paragraph 168). The Committee therefore requests the Government to indicate the measures taken so as to amend the definition of labour dispute in section 2 and the provisions of section 79 and 80 of the Employment Relations Bill, so as not to exclude the possibility of staging strikes in relation to general economic policy, negotiations above the enterprise level and sympathy strikes.

The Committee observes that sections 72, 73 and 82 of the Employment Relations Bill provide for an aggregate two-month “cooling off” period between the time when negotiations fail and the time when a trade union may stage a strike. This period comprises two successive rounds of conciliation/meditation (20 days and 30 days, respectively) and ten days of strike notification. The Committee considers that the requirement of exhaustion of conciliation and mediation procedures before a strike may be called should not be so complex or slow that a lawful strike becomes impossible in practice or loses its effectiveness (see General Survey, op. cit., paragraph 171). The Committee also notes from sections 72 and 73 of the Bill that the conciliation/mediation periods may be extended at the request of the party which reports the dispute and considers that this provision entails the risk of postponing a strike indefinitely, thus rendering it impossible in practice. Such extensions should only be possible with the agreement of both parties to the dispute. The Committee therefore requests the Government to indicate in its next report measures taken to amend sections 72 and 73 of the Bill, so as to shorten the conciliation/mediation period to a reasonable level and ensure that the conciliation/mediation period may be extended only with the agreement of both parties to the dispute.

The Committee observes that sections 73(5)(b)(i) and 79(1)(c) of the Employment Relations Bill provide that, where conciliation fails, the party which reported the dispute to the authorities has the option to bring it before the tribunal for final determination. In addition to this, section 85(1)(b) provides that the Prime Minister may apply to the Supreme Court for an injunction prohibiting the continuation of a lawful strike where the duration of the strike threatens to affect an industry or service or employment and then may refer the dispute to compulsory arbitration. The Committee observes that this system of compulsory arbitration, at the initiative of the authorities or one of the parties to the dispute, makes it possible to prohibit virtually all strikes and can seriously limit the means available to trade unions to further and defend the interests of their members, organize their activities and to formulate their programmes, thus raising problems with regard to Article 3 of the Convention (see General Survey, op. cit., paragraph 153). The Committee recalls that compulsory arbitration is acceptable only if it is at the request of both parties to a dispute, or in the case of disputes in the public service involving public servants exercising authority in the name of the State or in essential services in the strict sense of the term, namely, those services whose interruption would endanger the life, personal safety or health of the whole or part of the population. The Committee therefore requests the Government to indicate in its next report the measures taken to amend sections 73(5)(b)(i), 79(c) and 85, so as to ensure that compulsory arbitration may be imposed only in the cases noted above.

The Committee further notes that section 81(3) of the Employment Relations Bill provides that a strike ballot shall be successful where it obtains an absolute majority of the workers concerned by the dispute. The Committee considers that although a requirement of strike ballot does not, in principle, raise problems of compatibility with the Convention, the ballot method, the quorum and the majority required should not be such that the exercise of the right to strike becomes very difficult, or even impossible in practice; if a member State deems it appropriate to establish in its legislation provisions which require a vote by workers before a strike can be held, it 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 General Survey, op. cit., paragraph 170). The Committee therefore requests the Government to indicate, in its next report, the measures taken to amend section 81(3) of the Bill so as to take account only of the votes cast in determining the outcome of a strike ballot.

The Committee observes that section 86(2) of the Employment Relations Bill provides that a worker shall not be entitled to any remuneration while he/she is on strike. The Committee considers that while workers may not have a claim to remuneration for the period of absence from work due to a strike, this payment might become the subject of negotiations in the framework of collective bargaining and the law should not preclude the outcome of such negotiations. Such a restriction would constitute interference with the right of trade unions to organize their activities and formulate their programmes. The Committee therefore requests the Government to indicate the measures taken in order to amend section 86(2) in a manner that allows for the possibility of agreement between the parties on the payment of remuneration for days on strike.

The Committee observes that sections 88(2)(b), 90(3) and 93(3) of the Employment Relations Bill concerning the composition of the Employment Relations Tribunal, the Commission for Conciliation and Mediation and the National Remuneration Board, respectively, provide that these bodies shall be composed, inter alia, by “such organizations representing workers and employers as [the Minister] thinks fit”. The Committee considers that in mediation and arbitration proceedings it is essential that all the members of the bodies entrusted with such functions should not only be strictly impartial but, if the confidence of both sides, on which the successful outcome even of compulsory arbitration (where applicable) really depends, is to be gained and maintained, they should also appear to be impartial both to the employers and to the workers concerned. The Committee therefore requests the Government to indicate in its next report the measures taken to amend sections 88(2)(b), 90(3) and 93(3) so as to make reference to the “most representative” organizations.

The Committee observes that section 99 of the Employment Relations Bill lists the matters which “shall” be taken into account by the tribunal, commission or board in the framework of their activities (conciliation, mediation and arbitration). These matters include the need to maintain a favourable balance of trade and balance of payments, increase the rate of economic growth, etc. The Committee requests the Government to indicate the measures taken to amend this provision by replacing the verb “shall” with “may”, so that these elements do not exclude other considerations.

The Committee observes that section 33 of the Employment Relations Bill provides that no person who refuses to participate in any unlawful strike or lockout should be subject to disciplinary measures. The Committee considers that this matter should be left to be determined in conformity with trade union rules and the provision in question could be seen as interfering with the right of trade unions to freely draw up their constitutions and rules and organize their administrations and activities. The Committee therefore requests the Government to indicate in its next report the measures taken to amend section 33, so as to allow this matter to be regulated solely on the basis of trade union rules.

The Committee trusts that the Government will be in a position to indicate progress on all of the above points in its next report.