Demande directe (CEACR) - adoptée 2008, publiée 98ème session CIT (2009)

The Committee takes note of Bill No. 6 of 2008 to amend the Industrial and Labour Relations Act (ILRA) and wishes to raise in this respect the following points.

1. With reference to its observation, the Committee notes that the following previously commented upon sections are not amended by the Bill: Sections 2(e) and 2(2), 18(1)(b) and 43(1)(a), 78(6)–(8) and 107. The Committee requests the Government to take the necessary measures in order to bring the abovementioned sections in line with the Convention.

2. With regard to the right of workers to establish and join organizations of their own choosing, the Bill proposes to amend section 5(b) so as to provide for the right of an employee to be a member of “a trade union within the sector, trade, undertaking, establishment or industry in which the employee is engaged” and the deletion of the words “a trade union of the employee’s choice”. As drafted, this provision would limit trade union membership to workers in the same occupation or branch of activity. In this respect, the Committee recalls that such conditions may be applied to first-level organizations, on condition that these organizations are free to establish inter-professional organizations, and to join federations and confederations in the form and manner deemed most appropriate by the workers concerned. The Committee requests the Government to ensure that the new legislative provision will ensure application of this principle.

3. With regard to the registration of trade unions, the Committee notes that the new text envisages a maximum six-month period for registration of a trade union (section 9(3)). The Committee considers that a long registration procedure constitutes a serious obstacle to the establishment of organizations and amounts to a denial of the right of workers to establish organizations without previous authorization. It therefore requests the Government to reconsider this provision so as to shorten the period of time within which a trade union must be registered.

4. Regarding the right of workers’ and employers’ organizations to elect their representatives in full freedom, the Committee notes that the Bill amends section 7(3) so as to allow a Labour Commissioner to prohibit a trade union officer from holding office in any trade union for a period of one year if, following the Commissioner’s refusal to register the union, this union is not dissolved within six months. In this respect, the Committee considers that having committed an act, the nature of which is not such as to call into question the integrity of the person concerned and is not such as to be prejudicial to the performance of trade union duties, should not constitute grounds for disqualification from trade union office. The Committee requests the Government to take the necessary measures so as to amend this provision accordingly.

5. With regard to the power conferred on the Commissioner to suspend and appoint an interim executive board of a trade union, as well as to dissolve the board and call for a fresh election (section 21(5) and (6), as amended by the Bill), the Committee considers 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 by the administrative authorities or under the provisions of legislation are incompatible with the Convention. 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 of 1994 on freedom of association and collective bargaining, paragraphs 122 and 123). The Committee requests the Government to reconsider amendment to section 21 so as to ensure respect for the above principles.

6. With regard to the right to strike, the Committee notes that section 78(4), as amended, would limit the maximum duration of a strike to 14 days, after which, if the dispute remains unsolved, it is referred to the Court. The Committee considers that such a restriction would seriously limit 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 the Convention. The Committee therefore requests the Government to abandon the proposed new amendment so as to ensure that the legislation does not impose restrictions of a maximum duration of a strike.

The Committee hopes that the envisaged amendments will take into account the comments that it has been making for many years and that they will be adopted in the near future following full and frank consultations with the social partners. The Committee requests the Government to provide information in its next report on any progress achieved in this respect and hopes that the amendments to the Act will be in full conformity with the provisions of the Convention.