Observation (CEACR) - adoptée 2009, publiée 99ème session CIT (2010)

The Committee notes the information contained in the Government’s report and regrets to note that it has provided no reply to the comments made by the International Trade Union Confederation (ITUC) in a communication dated 27 August 2007. The Committee notes comments made by the ITUC in a communication dated 26 August 2009.

Articles 1 and 2 of the Convention. Protection against acts of anti-union discrimination and employer interference. The Committee’s previous comments concerned the need to ensure effective and rapid protection against acts of anti‑union discrimination and employer interference in practice, having noted a stark contrast between laws which appear to conform to the Convention and a suggested failure to provide protection against anti-union discrimination and interference in practice. In particular, the Committee requested the Government to indicate concrete measures taken, after discussions with workers’ and employers’ organizations, in this regard; and to provide data on the number of complaints of anti-union discrimination filed with the labour inspectorate and the courts, and the steps taken to investigate these complaints and impose remedies where appropriate, as well as the average duration of proceedings.

The Committee notes the Government’s comments that protection against discrimination is regulated by Act No. 21 of 2000 concerning trade unions and that alleged violations were always handled by consultation and law enforcement, with most cases solved in bipartite consultations. The Committee further notes that the Government indicates that the time taken to process the law (investigations) is regulated by the law on criminal procedure.

The Committee regrets that the Government has not provided detailed information on complaints of anti-union discrimination filed with the labour inspectorate and courts. It observes once again that a lack of findings of anti-union discrimination by the labour inspectorate and the courts, combined with the conclusions and recommendations of the Committee on Freedom of Association in a series of cases (Cases Nos 2236, 2336, 2441, 2451, 2472 and 2494), cause a certain concern. In this regard, the Committee further notes that the ITUC in its comments of 2007 and 2009 refers to cases of anti-union discrimination. The Committee once again requests the Government to indicate in its next report concrete measures taken, after discussions with the most representative workers’ and employers’ organizations, to ensure effective and rapid protection against acts of anti-union discrimination and employer interference in practice. It also requests the Government to provide data on the number of complaints of anti-union discrimination filed with the labour inspectorate and the courts, and the steps taken to investigate these complaints and impose remedies where appropriate, as well as the average duration of proceedings. The Committee invites the Government to make full use of ILO technical assistance in this regard, as well as training for the authorities competent to deal with cases of anti-union discrimination and employer interference.

Article 2. Protection against acts of interference. The Committee’s previous comments concerned the need to amend section 122 of the Manpower Act so as to discontinue the presence of the employer during a voting procedure held in order to determine which trade union shall have the right to represent the workers in an enterprise. The Committee notes that the Government once again indicates that it has not amended section 122 of the Manpower Act and that it considers that employers and the Government are present only as witnesses during voting and have no effect on the voting by trade unions and workers. Recalling the need to ensure adequate protection against acts of interference in practice, the Committee once again requests the Government to indicate in its next report the steps taken to amend section 122 of the Manpower Act so as to suppress the presence of the employer during voting procedures.

Article 4. Promotion of collective bargaining. In its previous comments, the Committee had requested the Government to amend sections 5, 14 and 25 of Act No. 2/2004 concerning Industrial Relations Dispute Settlement, which enable either of the parties to an industrial dispute to file a legal petition to the Industrial Relations Court for final settlement of the dispute if conciliation or mediation failed. The Committee notes the information provided by the Government that in order to strengthen sections 5, 14 and 25 of Act No. 2/2004, it published Minister of Manpower and Transmigration Regulation No. 31/MEN/XII/2008 concerning guidance of industrial relations dispute settlement through bipartite consultation. According to the Government, this Regulation clarifies that bipartite consultation is consultation between workers/labour unions/labour organizations with employers to settle industrial relations disputes in a company. The Government further states that, therefore, in cases of industrial relations disputes, bipartite consultation must be conducted before mediation, conciliation and arbitration. The Committee notes the Government’s information that Act No. 2/2004 only defines the existence of voluntary arbitration, rather than compulsory arbitration, as arbitration can only be conducted if it is agreed by the parties to the dispute.

The Committee observes, however, that Act No. 2 refers both to voluntary arbitration and, in sections 5, 14 and 25, to compulsory arbitration by allowing one of the parties to a dispute to file a petition to the Industrial Relations Court. Noting that the ability of one or other of the parties to a dispute to refer the dispute to the Court constitutes compulsory arbitration, the Committee recalls that compulsory arbitration at the initiative of one party to the dispute cannot be considered to promote voluntary collective bargaining. The Committee once again requests the Government to indicate in its next report the measures taken or contemplated to amend sections 5, 14 and 25 of Act No. 2/2004 concerning industrial relations dispute settlement so as to ensure that compulsory arbitration may be imposed only where it is agreed upon by both parties to the dispute.

Requirements for the exercise of collective bargaining. The Committee notes that the comments submitted by the ITUC indicate that, under section 119 of the Manpower Act, in order to negotiate a collective agreement, a union must have membership equal to more than 50 per cent of the total workforce in the enterprise or receive more than 50 per cent support in a vote of all the enterprise’s workers on its demands. The Committee notes that unions not attaining 50 per cent support in such a vote could only engage in collective bargaining after a period of six months is passed since the vote. The Committee considers that these provisions render the exercise of collective bargaining difficult for these unions and requests the Government to repeal the requirement for a delay of six months before which minority unions may bargain collectively.

The Committee further notes that the ITUC indicates, without specifying the legislative provision, that collective agreements must be concluded within 30 days after the beginning of negotiations or must be submitted to the Manpower Ministry for mediation, conciliation or arbitration. The Committee requests the Government to provide its comments in response.

Federations and confederations. In its previous comments, the Committee had requested the Government to indicate whether federations and confederations had the right to collective bargaining. The Committee notes the Government’s indication that section 25(1) of Act No. 21/2000 states that trade unions, federations and confederations with a record number have the right to: negotiate a collective labour agreement with the management; represent workers in industrial dispute settlements; represent workers in manpower institutions; establish an institution or carry out activities related to efforts to improve workers’ welfare; and carry out other manpower or employment-related activities that are in conformity with prevailing law. It further notes that section 27 of Act No. 21 regulates the obligations of trade unions, federations and confederations. The Committee notes that the Government indicates that, as a result, there is no rule or regulation prohibiting federations and confederations from engaging in collective bargaining. The Committee requests the Government to provide in its next report data concerning the number and type of current collective agreements that were signed by federations or confederations of trade unions.

Export processing zones (EPZs). In its previous observation, the Committee had requested the Government, pursuant to allegations of violent intimidation and assault of union organizers, and dismissals of union activists in the EPZs, to provide information thereon as well as on the number of collective agreements in force in the EPZs and the percentage of workers covered. The Committee notes the collective labour agreement between a pharmaceuticals enterprise and what appears to be an enterprise-level trade union transmitted by the Government, and notes with regret that the Government has not provided further information concerning allegations of intimidation and assault of union organizers, dismissals of union activists, the number of collective agreements in force in EPZs and the percentage of workers covered. The Committee once again requests the Government to indicate in its next report the measures taken to collect statistical information on collective bargaining in EPZs and to provide data concerning the number of collective agreements and workers covered. It further requests the Government to provide specific information on the number of complaints of anti-union discrimination and employer interference in EPZs and the relevant investigation/remediation measures.