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

The Committee notes 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:

The Committee had noted that the third draft Industrial Relations Bill, which was last revised on 14 August 2006, following widespread consultations with the social partners, and incorporates technical inputs provided by the ILO. The said Bill replaces the draft Industrial Relations Act of 2003 as part of an ongoing effort, commenced in 2003, to review and consolidate the labour legislation; to this end, section 257 of the current Bill repeals the Industrial Organizations Act, the Industrial Relations Act, the Industrial Relations (Amendment) Act of 1992, the Industrial Relations (Amendment) Act of 1998, the Public Service Conciliation and Arbitration Act, and the Teaching Service Conciliation and Arbitration Act.

Article 2 of the Convention. Right of workers and employers without distinction whatsoever to establish and join organizations of their own choosing and without previous authorization. The Committee had previously requested the Government to repeal section 35(2)(b) of the Industrial Organizations Act and delete section 98(2)(b) of the draft Industrial Relations Act, both of which provided that a person who is “of general bad character is not qualified for admission as a member of an industrial organization”. In this regard, the Committee had noted the Government’s indication that it has repealed section 35(2)(b) of the Industrial Organizations Act and deleted section 98(2)(b) of the draft Industrial Relations Act. However, the Committee notes that section 98(2)(b) of the third draft Industrial Relations Bill, as amended, now provides that a person who “has been convicted of a criminal offence justifying imprisonment by a court of law” may not become a union member. The Committee considers, in this respect, that conviction for 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 (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 120). Denying union membership to persons convicted of a criminal offence is incompatible with Article 2 of the Convention. Noting the Government’s indication that this section would be subject to further review, the Committee expresses the hope that section 98(2)(b) of the third draft Industrial Relations Bill would be amended in accordance with the above-stated principle. The Committee also requests the Government to provide it with a copy of the instrument or order repealing section 35(2)(b) of the Industrial Relations Act.

Trade union registration. In its previous comments, the Committee had requested the Government to repeal section 22(1)(g) of the Industrial Organizations Act and delete section 86(1)(g) of the draft Industrial Relations Act, both of which allowed the registrar to refuse to register an organization when “some other industrial organization, whether registered or the subject of an application for registration, is sufficiently representative of the whole or a substantial proportion of the interests in respect of which the applicants seek registration of an industrial organization”. In this respect, the Committee had noted with satisfaction the Government’s statement that it had repealed section 22(1)(g) of the Industrial Organizations Act. The Committee noted, however, that section 86(1)(g) of the 2003 draft legislation has been reproduced in the third draft Industrial Relations Bill of 2005 (also as section 86(1)(g)). It further noted the Government’s indication that the National Tripartite Consultative Council (NTCC) would consider further amendments and changes to the draft bill – including the possible deletion of section 86(1)(g) – in early 2007. In these circumstances, the Committee trusts that the NTCC has taken into account its earlier request that section 86(1)(g) be deleted and requests the Government to transmit a copy of the order repealing section 22(1)(g) of the Industrial Organizations Act.

Previously, the Committee had requested the Government to amend section 55 of the Industrial Organizations Act and delete section 118 of the draft Industrial Relations Act, both of which allow for the cancellation of an organization’s registration as a penalty for prohibited payments. The Committee notes that section 118 of the third draft Industrial Relations Bill, which forbids the use of an industrial organization’s funds in payment of a fine or penalty imposed by a court on any other person, no longer provides for the cancellation of an organization’s registration as a penalty for breaching the above-noted prohibition. Subsection (3) of section 118 does provide, however, that the National Court may order that the office bearers of an organization be held personally liable for any breach of that section. The Committee had noted the Government’s statement that through the consultation and review process section 118 has been highlighted for modification, as opposed to outright deletion. The Government indicated that subsection (3) is the outcome of the firm conviction of all relevant stakeholders that most union funds are open to gross misuse and mismanagement; the Government and the employers consider, furthermore, that the above-noted provision is necessary for purposes of accountability and good governance, and does not jeopardize the operation and rights of industrial organizations. Noting that section 118 would be reconsidered in the next round of consultations, in preparation for the final draft of the Industrial Relations Bill, the Committee expresses the hope that subsection (3), if retained, would be amended so as to limit the personal liability of union office bearers to instances of individual abuse of funds. As regards section 55 of the Industrial Organizations Act, the Committee reiterates its hope that this provision would be either amended or repealed, in the course of the ongoing consolidation of the labour legislation, so as to remove cancellation of an organization’s registration as a penalty for prohibited payments made by officers individually.

The Committee further notes that section 87 of the third draft Industrial Relations Bill empowers the registrar to cancel an industrial organization’s registration on a number of grounds, including instances where the funds of an industrial organization have been or are being expended on an object not authorized by the Bill (subsection 87(g)), and where the accounts of an industrial organization are not being kept in accordance with the Bill (subsection 87(h)). The Committee considers, as it had with respect to section 55 of the Industrial Organizations Act, that such an extreme penalty as cancellation of an organization’s registration in the cases cited above violates the right of workers to form and join organizations of their own choosing and recalls that only in case of serious criminal actions and repeated violations could cancellation be envisaged. It accordingly requests the Government to amend subsections (g) and (h) of section 87, so as to ensure that organizations would not be dissolved for unauthorized expenditures or for failing to maintain accounts in accordance with the Bill, except when such actions constitute serious criminal offences.

Article 3. Right of workers’ and employers’ organizations to draw up their constitutions and rules, to elect their representatives in full freedom and to organize their administration and activities. In previous comments the Committee had requested the Government to amend sections 39(1)(b) and (d) of the Industrial Organizations Act, as well as sections 102(1)(b) and (d) of the draft Industrial Relations Act, which prevent a person who is not engaged in the industry or occupation with which the organization is directly concerned and who is not a member of the organization, respectively, from being an officer of that organization unless the registrar in his discretion so permits. In this connection, the Committee notes that section 102(1)(d) of the Bill permits workers who have already worked in the sector concerned to be an officer of a union, even if he or she does not belong to that organization. Further noting the Government’s indication that sections 39(1)(b) and (d) of the Industrial Organizations Act had been amended, the Committee requests the Government to provide copies of these amendments in its next report.

The Committee had previously requested the Government to repeal section 39(4) of the Industrial Organizations Act and delete section 102(5) of the draft Industrial Relations Act, both of which allow the registrar to remove from office any union secretary or treasurer who, in his opinion, is not capable of performing his or her duties, in order to ensure that public authorities refrain from any interference in the internal administration of industrial organizations. In this regard the Committee notes that section 102(5) has been deleted from the third draft Industrial Relations Bill. Further noting the Government’s statement that section 39(4) has been repealed, the Committee asks the Government to provide copies of the instruments repealing the provisions noted above in its next report.

The Committee had previously requested the Government to amend sections 5(1), 40, 58 and 60(1)(b) of the Industrial Organizations Act, sections 22 and 23(1) of the Industrial Relations Act, and delete sections 103, 121 and 123 of the draft Industrial Relations Act, all of which grant excessive powers to the registrar to investigate union accounts and demand information. In this connection, the Committee had noted the Government’s indication that, although it has taken note of the Committee’s comments respecting these provisions, it considers the said provisions necessary for the proper governance of membership fees, which must be utilized for the benefit of the members. The Committee further notes that section 103 of the previous draft Bill is substantially similar to section 103 of the third draft Industrial Relations Bill: whereas section 103 of the draft Industrial Relations Act empowered the registrar to demand such information of an organization as it deemed necessary to determine whether the said organization was complying with its accounting and financial obligations, section 103 of the third draft Industrial Relations Bill now provides that the registrar may require an organization to submit such information as may be reasonably necessary to assist the registrar in determining whether the said organization is complying with its accounting and financial obligations. Though less broad than under the previous draft legislation, the Committee considers nevertheless that the registrar’s power to demand information under section 103 of the third draft Industrial Relations Bill still amounts to interference in an industrial organization’s administration. Noting further that sections 121 and 123 of the previous draft legislation have been retained in the present draft Bill, the Committee – as it had with respect to the previous draft Industrial Relations Act – requests the Government to amend sections 103, 121 and 123 of the third draft Industrial Relations Bill so as to ensure that the supervision of an organization’s finances is limited to the obligation to submit periodic financial reports, or on the basis of a complaint from a certain percentage of workers. Additionally, the Committee once again requests the Government to amend sections 5(1), 40, 58 and 60(1)(b) of the Industrial Organizations Act, as well as sections 22 and 23(1) of the Industrial Relations Act, and to inform it of the progress made in this regard in its next report.

The right to strike. The Committee had previously noted that the compulsory arbitration procedure provided for in section 30 of the Industrial Relations Act was not compatible with the Convention, and had requested the Government to provide more information on its use in practice. In this connection the Committee had noted the Government’s statement that dispute settlement procedures are now provided for in sections 145–154 of the third draft Industrial Relations Bill. As regards these provisions, the Committee notes that section 151(1) provides that, where a conciliation proceeding is regarded as completed under section 150(b), the commissioner responsible for the proceeding shall not, where the commissioner has exercised conciliation powers, proceed to exercise arbitration powers in relation to the dispute unless all parties to the dispute consent to the commissioner doing so. Section 152(1) of the draft Bill, however, states that where a conciliation proceeding under section 150(b) is regarded as having been completed, the commissioner responsible for the proceeding shall commence to arbitrate the matters in dispute between the parties, unless precluded from exercising arbitration powers. The Committee considers that these provisions, read in concert, would still appear to allow for instances of compulsory arbitration – in cases, for instance, where the commissioner has not exercised conciliation powers and would therefore not be prohibited from initiating arbitration proceedings. In these circumstances, and further noting the Government’s indication that the sections concerning dispute settlement in the third draft Industrial Relations Bill would have been subject to further deliberation at the NTCC meeting in 2007, following which amendments would be drafted by an interim national consultant, the Committee expresses the hope that sections 150 and 151 of the third draft Industrial Relations Bill would be amended so as to clearly prohibit the submission of industrial disputes to compulsory arbitration, with the exception of disputes concerning public servants exercising authority in the name of the State and disputes in essential services in the strict sense of the term. Further noting that no time frame for conciliation proceedings is provided for under section 150, the Committee recalls that negotiation machinery should not be so slow or complex that a lawful strike becomes impossible or loses its effectiveness (see General Survey, op. cit., paragraph 171). Accordingly, the Committee requests the Government to take the necessary measures to amend section 150 of the third draft Industrial Relations Bill so as to ensure that conciliation proceedings are concluded within a reasonable period of time.

The Committee requests the Government to inform it of the outcome of the NTCC’s deliberations, which were held earlier this year for the purpose of formulating further modifications to the third draft Industrial Relations Bill, and expresses the hope that its comments would be fully taken into account in the course of finalizing the amendments to the draft legislation. It also requests the Government to transmit a copy of the new law once it is adopted.