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

The Committee notes with regret that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

A. Article 2 of the Convention. 1. Right of employers and workers to establish organizations of their own choosing. The Committee noted that section 13(1) of the Constitution guarantees to all persons the freedom to form and belong to associations for the advancement or protection of their interests. Moreover, section 21 of the Trade Union and Employer Organizations Act, which is entitled “Freedom of association of workers”, indicates inter alia that nothing in that law shall prohibit any worker from being or becoming a trade union member. The Committee noted that there is no comprehensive provision in the law guaranteeing to all workers and employers the right to establish and join organizations of their own choosing. The Committee requested that the Government amend section 21 of the Trade Union and Employer Organizations Act with a view to adopting such a provision.

2. Minimum membership requirement. The Committee noted that section 7 of the Trade Unions and Employer Organizations Act sets a minimum membership requirement of seven members for the registration of employers’ organizations. The Committee considers that this requirement might be excessively high and discourage the establishment of employers’ organizations. The Committee requests that the Government amend section 7 of the Trade Unions and Employer Organizations Act so as to lower the minimum membership requirement for the registration of an employers’ organization.

3. Right of public employees to establish and join organizations of their own choosing. The Committee noted that section L.1 of the National Conditions of Service provides that all employees are free to join a “recognized” staff association or union. Given that there is no provision in the law relating to the recognition of trade unions, the Committee requests that the Government amend Section L.1 by substituting “registered” for “recognized”.

B. Article 3.  Right of employers’ and workers’ organizations to draw up their constitutions and rules, elect their representatives in full freedom, organize their administration and activities and formulate their programmes. 1. Right to elect representatives freely. The Committee noted that there is no provision in the law regarding the right of workers and employers to elect their representatives. The Committee requests that the Government indicate the legislative provisions which guarantee to members of employers’ and workers’ organizations, the right to elect their representatives in full freedom.

2. Strike ballots. The Committee noted that section 39 of the Industrial Relations Code Act, 1998, requires a two-thirds majority of those eligible to vote in order to reach a decision to strike. The Committee considers that, although the requirement of a 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 (see General Survey, op. cit., paragraph 170). The Committee therefore requests that the Government indicate in its next report the measures taken to amend section 39 of the Industrial Relations Code so as to ensure that, when a decision to strike is taken by ballot, account is taken only of the votes cast, and that the required majority is lowered.

3. Compulsory arbitration. The Committee noted that sections 8(1)(d) and 12 of the Industrial Relations Code enable the Registrar to refer any trade dispute to arbitration for a final and binding decision. Section 27 renders any strike unlawful when a trade dispute procedure prescribed in the Act for the settlement of trade disputes has not been exhausted while section 28 further enables the Minister to declare strikes unlawful where an agreement or an award has been made settling the dispute. The Committee recalls that such a system makes it possible to prohibit virtually all strikes or to end them quickly thereby seriously limiting 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 formulate their programmes (see General Survey, op. cit., paragraph 153). Compulsory arbitration to end a trade dispute is acceptable only: (i) if it is at the request of both parties to the dispute; (ii) in the case of disputes in the public service involving public servants exercising authority in the name of the State; or (iii) 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 that the Government indicate in its next report the measures taken to amend sections 8(1)(d), 12, 27 and 28 of the Industrial Relations Code so as to limit the possibility of prohibiting strikes and impose compulsory arbitration only to those cases which would be in conformity with the Convention.

4. Essential services. The Committee noted that section 37 of the Industrial Relations Code has the effect of prohibiting industrial action and imposing heavy penalties including imprisonment  in cases where a strike might “expose valuable property to the risk of destruction”. The Committee recalls from above that restrictions on the right to strike are admissible under the Convention only in essential services in the strict sense of the term, public servants exercising authority in the name of the State and in case of an acute national crisis. Any other restriction or prohibition which falls outside these confines is contrary to Article 3 of the Convention. Sanctions for strike action should be possible only where the prohibitions in question are in conformity with the principles of freedom of association. The Committee therefore requests that the Government indicate in its next report the measures taken so as to lift section 37 of the Industrial Relations Code.

5. Sanctions for strike action. The Committee noted that, according to section 30 of the Industrial Relations Code, sanctions against unlawful strikes include imprisonment of up to one year and heavy fines. Moreover, under section 37 of the Industrial Relations Code, penalties of imprisonment for strikes in essential services can be imposed for a term of up to 18 months as well as heavy fines. The Committee once again recalls that sanctions for strike action should be possible only where the prohibitions in question are in conformity with the principles of freedom of association. Even in such cases, the existence of heavy sanctions for strike action may create more problems than they solve, since the application of disproportionate penal sanctions does not favour the development of harmonious and stable industrial relations. In particular with regard to sanctions against strikes in essential services, the Committee emphasizes that such sanctions should not be disproportionate to the seriousness of the violations and that in any case, peaceful strikes should not be sanctioned by imprisonment. The Committee requests that the Government indicate in its next report the measures taken to ensure that any prison sanctions are proportional to the seriousness of the violations and that in any case, imprisonment may not be imposed in case of peaceful strikes.

C. Articles 5 and 6. Right to establish and join federations and confederations and to affiliate with international organizations of workers and employers. The Committee noted that there is no provision in the law regarding the right of workers’ and employers’ organizations to join federations or confederations of their own choice and to affiliate with international organizations of workers and employers. The Committee requests that the Government indicate in its next report the provisions which guarantee the right of workers’ and employers’ organizations to join federations and confederations of their own choice and to affiliate with international organizations of workers and employers.