Observation (CEACR) - adoptée 2010, publiée 100ème session CIT (2011)

Article 4 of the Convention. Representativeness requirements for certification of a union as the exclusive bargaining agent. The Committee had previously noted that section 198B(2) of the Labour Code, as amended by the 2006 Amendment Act, provides that the arbitrator may conduct a ballot “if appropriate” in the determination of disputes concerning trade union representativity. It had subsequently requested the Government to amend the Labour Code by introducing a formal requirement for ballots to be held in determination of trade union representativity, thereby removing the arbitrator’s discretion as to whether a ballot is “appropriate” in the circumstances. In this respect, the Committee had noted the Government’s statement that leaving the decision to conduct a ballot to the arbitrator’s discretion is justified, as not all disputes concerning trade union representativity – such as those concerning whether particular employees fall inside the relevant bargaining unit or not – may be resolved by resorting to a ballot. The Government had further indicated that the decisions of the arbitrator are subject to review by the Labour Court. The Committee indicated that it trusted that under section 198B(2) of the Labour Code, as amended, disputes which require the holding of elections to determine which trade union is most representative are disposed of by means of a ballot. The Committee notes the Government’s indication that its abovementioned comments will be considered by the National Advisory Committee on Labour. The Committee requests the Government to provide information on the work of this Committee and hopes that the necessary measures to amend the Labour Code will be taken so as to ensure that new organizations, or organizations failing to secure a sufficiently large number of votes, may ask for a new election after a certain period has elapsed since the previous election.

Recognition of the most representative union. The Committee had previously noted that section 198A(1)(b) of the Labour Code defines a representative trade union as “a registered trade union that represents the majority of the employees in the employ of an employer”, and that section 198A(1)(c) specifies that “a majority of employees in the employ of an employer means over 50 per cent of those employees”. It had subsequently requested the Government to take the necessary legislative measures so as to ensure that when no union covers more than 50 per cent of the workers, collective bargaining rights are granted to all the unions in the unit, at least on behalf of their own members. The Committee recalled that problems may arise when the law stipulates that a trade union must receive the support of 50 per cent of the members of a bargaining unit to be recognized as a bargaining agent; a representative union which fails to secure this absolute majority is thus denied the possibility of bargaining and that under such a system, if no union covers more than 50 per cent of the workers, collective bargaining rights should be granted to all the unions in this unit, at least on behalf of their own members (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 241). The Committee notes the Government’s indication that its abovementioned comments will be considered by the National Advisory Committee on Labour. The Committee requests the Government to provide information on the work of this Committee and hopes that the necessary measures to amend the Labour Code will be taken so as to ensure the respect for the abovementioned principle. The Committee also requests the Government to indicate whether, in practice, minority unions enjoy collective bargaining rights in cases where there is no union representing 50 per cent of the workers concerned. If this is the case, the Committee requests the Government to provide relevant examples and statistics.

Collective bargaining in the education sector. In its previous comments the Committee had requested the Government to take all necessary measures so as to promote a prompt and negotiated solution to the long-standing disputes concerning teachers in the public sector and guarantee to them the rights enshrined in the Convention. The Committee takes note from the Government’s report that the Education Act of 2010 was promulgated. According to the Government, this Act may provide a solution to the long-standing disputes concerning teachers in the public sector. According to the Government’s report, this Act stipulates that teachers are employed by the Teaching Service Commission and disputes arising out of the teaching services are referred to the Teaching Service Tribunal, whose decisions are final and binding. However, “courts of law” have the jurisdiction to hear reviews from the Tribunal. The Committee further notes the Government’s indication that following the promulgation of the Labour Code (Amendment) Act No. 1 of 2010, all labour disputes whether from the public or private sector can now be heard by the Court of Appeal on questions of law. Therefore, according to the Government, the teachers’ dispute can now be referred to the Court of Appeal. Noting, however, that the Education Act of 2010 and the Labour Code (Amendment) Act No. 1 of 2010 have not been attached, the Committee requests the Government to transmit a copy of these legislative texts with its next report.

The Committee further notes that the Government indicates in its report that it takes upon itself to call a meeting of all stakeholders wherein the long standing issue of the teachers in the public sector shall be discussed to its finality. The Committee requests the Government to provide information on any developments in this regard and recalls that, in conformity with the Convention, teachers of the private and the public sectors should enjoy collective bargaining rights.