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

The Committee notes that the Employment Relations Act 2008 (ERA) was proclaimed and took effect from 2 February 2009. The Committee however notes that certain discrepancies remain between the ERA and the Convention.

Article 3. Strikes for matters of general economic policy. In its previous comment, the Committee requested the Government to specify the provisions which allow the staging of solidarity strikes, as well as strikes related to matters of general economic policy and strikes linked to negotiations above the enterprise level. The Committee notes that the Government indicates in its report that no specific provisions have been made in the ERA for negotiations to take place at the national level or strikes to be staged for matters of general economic policy. The Committee recalls that workers and their organizations should be able to use strike action to support their position in the search for solutions to problems posed by major social and economic policy trends which have a direct impact on their members and on workers in general. The Committee therefore requests the Government to take the necessary measures to ensure compliance with this principle and to provide information in its next report on any measures taken in this regard.

Cooling-off period. In its previous comments, the Committee requested the Government to indicate the requirements for the staging of a lawful strike in respect of the duration of the cooling-off period. The Committee takes due note that section 69(5) limits to 30 days the period of conciliation/mediation.

Strike ballot. In its previous comments, the Committee requested the Government to take the necessary measures to amend its legislation so as to take account only of the votes cast in determining the outcome of a strike ballot. The Committee notes that section 78(3) of the ERA provides that a ballot shall be successful where it obtains an absolute majority of the workers concerned by a dispute in a bargaining unit. The Committee notes that the Government reiterates in its report that it does not intend to amend this provision. The Committee recalls that the requirement of a decision by the absolute majority of the workers concerned in a bargaining unit in order to declare a strike could excessively hinder the possibility of carrying out strikes, particularly in large enterprises, and emphasizes that if a member State deems it appropriate to establish in its legislation provisions which require a vote by workers before a strike can be held, it should ensure that account is taken only of the votes cast in determining the outcome of the strike ballot. The Committee therefore requests the Government to take the necessary measures to amend the legislation in keeping with the abovementioned principle and to provide information in its next report on any measures taken in this regard.

Compulsory arbitration. In its previous comments, the Committee noted the possibility for the Prime Minister to refer a dispute to compulsory arbitration where its duration threatened to affect an industry or service or employment. The Committee notes from the Government’s report that section 82(1)(b) of the ERA provides that where the duration of a strike or lockout, which is not unlawful, is such that an industry or a service is likely to be seriously affected, or employment is threatened, or where the Prime Minister is of the opinion that the continuance of the strike or lockout may result in a real danger to life, health or personal safety of the whole or part of the population, the Prime Minister may apply to the Supreme Court for an order prohibiting the continuation of the strike or lockout. It shall then be for the Supreme Court to refer the parties to the labour dispute to the Tribunal for arbitration (section 82(3)). The Committee notes that the Government indicates in its report that no measures have been taken to amend section 82(1(b)) on the ground that certain economic sectors are of such importance to the country (i.e. agriculture, manufacturing, tourism, financial and business services) that the Government shall be able to prohibit the continuation of a strike in these areas. The Committee considers that this provision allows compulsory arbitration to be introduced at the initiative of the authorities, including the courts. The Committee recalls that a system of compulsory arbitration would not be appropriate under the Convention on the ground that the duration of a strike threatens to affect an industry or service or employment. The Committee once again underlines that a system of compulsory arbitration which makes it possible to prohibit virtually all strikes, is acceptable only at the request of both parties to a dispute, in the case of disputes in the public service involving public servants exercising authority in the name of the state or in essential services in the strict sense of the term. The Committee therefore requests the Government to take the necessary measures to amend section 82(1)(b) of the ERA so that compulsory arbitration may only be imposed in the abovementioned circumstances.

Minimum services. The Committee’s previous comments concerned the possibility for the Prime Minister to apply to the Tribunal for an order for the establishment of a minimum service, where the duration of a strike or lockout is such that an industry or a service is likely to be seriously affected, or employment is threatened, or where the Prime Minister is of the opinion that the continuance of the strike or lockout may result in a real danger to life, health or personal safety of the whole or part of the population. In that case, the Tribunal shall, within 48 hours, make an order on the number and occupations and departments necessary for the maintenance of a minimum service (section 82(1)(a) and (2)) of the ERA). The Committee notes that the Government indicates in its report that no measures have been taken to amend section 82(1)(a) and (2), on the ground that certain economic sectors are of such importance to the country (i.e. agriculture, manufacturing, tourism (including hotels and restaurants), financial and business services) that the Government shall be able to establish a minimum service in these areas. The Committee recalls that it considers that a minimum service would be appropriate in services of public utility (services d’utilité publique) in order to avoid damages which are irreversible or out of all proportion to the occupational interests of the parties to the dispute, as well as damages to third parties, namely the users or consumers who suffer the economic effects of collective disputes (General Survey, op. cit., paragraph 160). The Committee recalls that the fact that a service, industry or employment may be threatened by the duration of a strike does not in and of itself justify the introduction of a minimum service; furthermore, hotel services and restaurants are not services of public utility. The Committee once again requests the Government to take the necessary measures to amend section 82(1)(a) and (2) of the ERA so that a minimum service may not be imposed for the mere reason that the duration of a strike may affect a service or industry or employment.