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

The Committee notes the Government’s first report and its reply to the comments submitted by the International Confederation of Free Trade Unions (ICFTU), in a communication of 10 August 2006, which refer to matters concerning the application of the Convention that are taken up by the Committee below. It further notes the Labour Unions Act and the Labour Disputes (Arbitration and Settlement) Act of 2006, which to a significant extent apply the provisions of the Convention.

Article 2 of the Convention. Right of workers and employers to establish and join organizations of their own choosing. The Committee notes that, under section 18 of the Labour Unions Act of 2006, the process of registration of a labour union shall be within 90 days from the date of submission of an application. The Committee considers that registration procedures that are overly lengthy may constitute serious obstacles to the establishment of organizations (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 75). The Committee requests the Government to take the necessary measures to amend section 18 of the Labour Unions Act so as to shorten the time frame for registration of a trade union.

Article 3. Right of workers’ and employers’ organizations to elect their representatives in full freedom. 1. The Committee notes that section 23(1) of the Labour Unions Act empowers the registrar to interdict or suspend a trade union officer where the registrar is satisfied that the officer has been convicted by a court of law, or is being investigated with a view to prosecution for: (1) misuse, misappropriation or mismanagement of the funds of the labour union; or (2) wilful and persistent failure to comply with directions properly given by the registrar under the Act. The Committee also notes that, under section 23(2), where the registrar interdicts or suspends any officer under section 23(1), the registrar shall forward to the Industrial Court a certified copy of his or her decision, after granting the officer concerned an opportunity to be heard. Finally, the Committee notes that section 23(3) provides that the Industrial Court may direct the registrar to remove or reinstate the officer or person acting as the officer of a registered organization. The Committee recalls, in this connection, that any removal or suspension of trade union officers which is not the result of an internal decision of the trade union, a vote by members, or normal judicial proceedings seriously interferes in the exercise of the trade union office to which the officers have been freely elected by the members of their trade unions. Provisions which permit the suspension and removal of trade union officers or the appointment of temporary administrators by the administrative authorities, by the executive board of a single central organization, or under the provisions of legislation or a decree promulgated for the purpose are incompatible with the Convention. Furthermore, measures of this kind should be solely directed towards protecting the members of organizations and should only be possible through judicial proceedings. The law should lay down sufficiently precise criteria to enable the judicial authority to determine whether a trade union officer has committed acts warranting his suspension or removal; provisions which are too vague or fail to comply with the principles of the Convention do not constitute an adequate guarantee. The persons concerned should also enjoy all the guarantees of normal judicial procedures (see General Survey, op. cit., paragraphs 122–123). The Committee requests the Government to take the necessary steps to amend section 23(1) of the Labour Unions Act so as to ensure that the registrar may remove or suspend trade union officers only after full judicial proceedings have been held.

2. The Committee notes that section 31(1) of the Labour Unions Act provides that all officers of a registered organization, other than the Secretary General and treasurer, shall be persons who have been and still are engaged or employed in an industry or occupation with which the registered organization is directly concerned. The Committee recalls, in this respect, that provisions requiring all candidates for trade union office to belong to the respective occupation, enterprise or production unit, or to be actually employed in this occupation, either at the time of their candidature or during a certain period before their election, are contrary to the guarantees set forth in Convention No. 87. Provisions of this type infringe the organization’s right to elect representatives in full freedom by preventing qualified persons, such as full-time union officers or pensioners, from carrying out union duties or by depriving unions of the benefit of the experience of certain officers when they are unable to provide enough qualified persons from among their own ranks (see General Survey, op. cit., paragraph 117). In these circumstances, the Committee requests the Government to take the necessary measures to introduce more flexibility into section 31(1) of the Act, either by admitting as candidates persons who have previously been employed in the occupation concerned, or by exempting from the occupational requirement a reasonable proportion of the officers of an organization, and to keep it informed of any developments in this regard in its next report.

Right of workers’ and employers’ organizations to organize their administration. The Committee notes that under section 33(4) of the Labour Unions Act, where a registered organization fails to hold an annual meeting, the registrar may call or direct the calling of an annual general meeting and give such ancillary or consequential directions modifying or supplementing the calling, holding and conducting of the meeting – subject to the constitution and rules of the registered organization; moreover section 33(5) provides that the registrar’s directions shall include a direction that a simple majority of voting members of the registered organization present shall be deemed to constitute the annual general meeting for the year, notwithstanding the terms of the registered organization’s constitution or rules. Finally the Committee notes that under section 33(9), where default is made in holding an annual general meeting in accordance with section 33(1), or in complying with any directions issued under sections 33(4) and 33(5), the registrar shall proceed to interdict or suspend the officers of the organization concerned under section 23(1). The Committee recalls, in this respect, that legislative provisions which regulate in detail the internal functioning of workers’ and employers’ organizations pose a serious risk of interference by the public authorities; where such provisions are deemed necessary by the public authorities, they should simply establish an overall framework in which the greatest possible autonomy is left to the organizations in their functioning and administration. In these circumstances, the Committee requests the Government to take the necessary measures to repeal section 33 of the Labour Unions Act, so as to ensure the right of organizations to organize their administration as they so wish, and to keep it informed of the progress made in this regard.

Right to strike. 1. The Committee notes the Labour Disputes (Arbitration and Settlement) Act of 2006, sections 3–5 of which concern the resolution and settlement of labour disputes. The Committee notes that section 5(1) provides that where a labour dispute remains unresolved four weeks after it had been reported to a labour officer, and after conciliation procedures have run their course, the labour officer may at the request of any party to the dispute refer the dispute to the Industrial Court. Moreover, under section 5(3) of the Act, any of the parties to the dispute may refer it to the Industrial Court where a labour officer has failed to do so within eight weeks of the report’s receipt. The Committee recalls that a serious prohibition may result in practice from the cumulative effect of the provisions relating to collective labour disputes under which, at the request of one of the parties or at the discretion of the public authorities, disputes must be referred to a compulsory arbitration procedure leading to a final award which is binding on the parties concerned. These systems make it possible to prohibit virtually all strikes or to end them quickly: such a prohibition seriously limits the means available to trade unions to further and defend the interests of their members, as well as their right to organize their activities and to formulate their programmes, and is not compatible with Article 3 of Convention No. 87 (see General Survey, op. cit., paragraph 153). The Committee therefore requests the Government to take the necessary measures to amend sections 5(1) and 5(3) of the Labour Disputes (Arbitration and Settlement) Act so that compulsory arbitration may only be imposed 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 the interruption of which would endanger the life, personal safety, or health of the whole or part of the population, or at the request of the parties concerned.

2. The Committee notes that section 29(2) of the Labour Disputes (Arbitration and Settlement) Act provides that, where a labour officer declares any industrial action unlawful under the Act, it shall be an offence for any person, during the period in which the industrial action has been declared unlawful, to counsel or procure a strike or other industrial action or to introduce a lockout. In this regard, the Committee recalls that responsibility for declaring a strike illegal should not lie with the Government, but with an independent body that has the confidence of the parties involved. The Committee requests the Government to take the steps necessary to amend section 29(2) of the Labour Disputes (Arbitration and Settlement) Act in compliance with this principle.