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

The Committee notes the Government’s report. It further notes the comments submitted by the International Trade Union Confederation (ITUC) in a communication of 29 August 2008; the ITUC’s comments primarily refer to legislative matters previously raised by the Committee.

Prison staff. Previously, the Committee had requested the Government to take the necessary legislative measures to ensure that prison service staff enjoy the right to organize and bargain collectively. The Committee notes the Government’s statement that this request has been communicated to the Sector Minister for due consideration. Recalling that the Convention’s guarantees apply to prison service staff, the Committee once again requests the Government to take the necessary measures to amend the Labour Act, so as to ensure that prison service staff expressly enjoy the right to organize and to collective bargaining, and to provide information on developments in this regard.

Collective bargaining certification. The Committee had previously noted that sections 99–100 of the Labour Act, 2003, regulate the issue of trade union recognition for collective bargaining purposes by providing that the Chief Labour Officer shall issue, upon request by a trade union, a certificate appointing that trade union as the appropriate representative to conduct negotiations on behalf of the class of workers specified in the collective bargaining certificate (section 99). Further noting that under section 99(4), the Chief Labour Officer appeared to have full discretion to decide which trade union to grant recognition to, in situations where more than one trade union existed at the work place, and that the criteria upon which this decision should be based were not specified, the Committee requested the Government to provide information on any regulations adopted or envisaged under section 99 of the Labour Act with a view to setting up procedures and criteria relevant to the Chief Labour Officer’s competence to determine which union shall hold a collective bargaining certificate.

The Committee notes with regret that the Government provides no indications in respect of the abovementioned relevant criteria, but rather limits itself to repeating the provisions of section 99 of the Labour Act, 2003. In these circumstances, the Committee once again recalls that in cases in which a system of “compulsory” recognition has been established, where the employer must recognize the existing trade union(s) under certain conditions, it is important for the determination of the trade union in question to be based on objective and pre-established criteria so as to avoid any opportunity for partiality or abuse. Furthermore, when national legislation provides for a compulsory procedure for recognizing unions as exclusive bargaining agents, certain safeguards should be attached, such as: (a) the certification to be made by an independent body; (b) the representative organization to be chosen by a majority vote of the employees in the unit concerned; (c) the right of an organization, which in a previous trade union election failed to secure a sufficiently large number of votes, to request a new election after a stipulated period; and (d) the right of any new organization other than the certified organization to demand a new election after a reasonable period has elapsed (see the General Survey of 1994 on freedom of association and collective bargaining, paragraph 240). The Committee requests the Government to take measures to adopt the appropriate regulations establishing procedures and objective criteria concerning the Chief Labour Officer’s competence to determine which union shall hold a collective bargaining certificate, in keeping with the abovementioned principle, and to provide information on developments in this regard.