Demande directe (CEACR) - adoptée 2017, publiée 107ème session CIT (2018)

Convention (n° 98) sur le droit d'organisation et de négociation collective, 1949 - Maldives (Ratification: 2013)

Autre commentaire sur C098

Observation

2021

Demande directe

2017

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The Committee takes note of the Government’s first report. The Committee further notes the 2015 observations of the International Trade Union Confederation (ITUC), alleging union-busting, harassment, anti-union dismissals and intimidation of workers in a tourist resort. The Committee notes that these allegations gave rise to a complaint before the Committee on Freedom of Association (Case No. 3076), which has been constrained to examine the case in the absence of the Government’s reply despite having issued several urgent appeals to the Government requesting it to provide the necessary information (see 376th, 381st and 383rd Reports of the Committee on Freedom of Association). The Committee therefore urges the Government to provide its comments on these specific allegations to the Committee on Freedom of Association. Further regretting that the Government did not communicate its report to the representative organizations of workers and employers for their observations, the Committee requests it to do so without further delay.

Legislative framework. The draft Industrial Relations Act. The Committee notes that the Employment Act, 2008, addresses some of the rights covered by the Convention. The Committee also notes the Government’s indication that following the ratification of the Convention, a draft Industrial Relations Act was formulated to give effect to the rights enshrined in the Convention. The Committee observes that the draft Act was developed in 2013 in consultation with the Office, with a view to creating an integrated and comprehensive legislation dealing with all aspects of collective labour relations. The Government indicates that it is undertaking final consultations with the stakeholders in order to submit the draft to Parliament for adoption. Emphasizing the desirability of elaborating a comprehensive legislative framework regulating collective labour relations, the Committee requests the Government to take the necessary measures to achieve the adoption of the draft Industrial Relations Act in the near future and to provide a copy of the Act once adopted. The Committee expects the Act to be in full conformity with the Convention.

Article 1 of the Convention. Adequate protection against acts of anti-union discrimination. Persons protected. The Committee notes that the Employment Act, 2008, is applicable to all persons employed by the State or by the private sector, except the police and the armed forces (section 2(a)). The Committee observes, however, that section 34(a) exempts several categories of persons from the provisions of Chapter 4, which provides for the prohibition of anti-union dismissal, access to court, as well as measures of redress for such acts: persons working in emergency situations, crew of sea going vessels or aircraft, imams and other employees at mosques, persons on on-call duty during the hours of duty and persons in senior management posts. Section 34(b) provides for the possibility to enact regulations which can further exempt employees in certain situations from the provisions of Chapter 4 of the Employment Act. Recalling that the Convention is applicable to all workers, with the only possible exception of the police, the armed forces and public servants engaged in the administration of the State, the Committee requests the Government to take the necessary measures to ensure that all workers covered by the Convention can benefit from the rights enshrined in it and are adequately protected against acts of anti-union discrimination (including access to rapid appeal procedures and sufficiently dissuasive sanctions).

Acts covered. The Committee notes that section 21(a) of the Employment Act prohibits dismissal without reasonable cause and section 21(b)(vi) provides that membership in a workers’ association or involvement in any lawful activity by such association is not a reasonable cause for dismissal. The Committee further observes that section 4(a) of the Employment Act prohibits discrimination in granting of employment, determination of remuneration, increase in remuneration, provision of training, determination of conditions and manner of employment, dismissal from employment or resolution of other employment related matters but that trade union affiliation or legitimate trade union activities are not included as one of the grounds of prohibited discrimination. The Committee recalls in this regard that it is important to prohibit discrimination based on trade union membership and participation in legitimate trade union activities not only at the time of termination of the employment relationship, but at all stages of employment, including recruitment and in the course of employment. The Committee, therefore, requests the Government to take the necessary measures to amend section 4(a) of the Employment Act so as to include trade union membership and legitimate trade union activities as one of the grounds of prohibited discrimination at all stages of employment.

Rapid appeal procedures. The Committee further notes that although workers have the right to submit a complaint relating to their dismissal to the Employment Tribunal (section 28(a) of the Employment Act), workers dismissed during the probationary period or due to retirement age or any other reason requiring resignation from office are excluded from this provision (section 28(b)). The Committee further notes that although section 27 of the Employment Act places the burden of proving that a dismissal was for a reasonable cause on the employer, it also mentions an exception from this rule, without, however, clearly indicating the situations to which it applies. The Committee requests the Government to take the necessary measures to ensure that all workers who allege anti-union dismissal, including those on probation or in retirement age, have access, both in law and in practice, to rapid appeal procedures. The Committee further requests the Government to take the necessary measures to delete the exemption mentioned in section 27 of the Employment Act so as to ensure that the specific rules on the reversal of the burden of proof set by the Employment Act are applicable to all proceedings related to anti-union dismissal.

Sufficiently dissuasive sanctions. The Committee observes that sections 5(c) and 29 of the Employment Act provide for remedies in case of dismissal without reasonable cause. The Committee notes that in line with these provisions, the Employment Tribunal can order reinstatement of a dismissed worker in the same, similar or appropriate post as a primary remedy, as well as reasonable and just compensation giving due regard to the detriment directly suffered by the employee due to the employer’s actions. Recalling that the effectiveness of legal provisions prohibiting acts of anti-union discrimination depends on the remedies envisaged and sanctions provided, which should have a dissuasive effect, the Committee requests the Government to provide information on the application of sections 5(c) and 29 by the tribunals when dealing with anti-union dismissals and to specify the type and the amount of sanctions imposable on an employer for acts of anti-union discrimination.

The Committee further requests the Government to provide statistics on the number of anti-union discrimination complaints filed before the courts, the average duration of the proceedings and their outcome. The Committee also requests the Government to indicate the measures taken or envisaged to facilitate access of workers to the Employment Tribunal from areas other than the capital Male, where the Tribunal is located.

Article 2. Adequate protection against acts of interference. The Committee notes the Government’s indication that there is no legislation prohibiting acts of interference of workers’ and employers’ organizations in each other’s establishment, functioning or administration. The Committee requests the Government to take the necessary measures, including legislative, to ensure that acts of interference of workers’ and employers’ organizations, their agents or members against each other’s establishment, functioning and administration are explicitly prohibited and are accompanied by access to rapid and effective appeal procedures and sufficiently dissuasive sanctions.

Articles 4 and 6. Promotion of voluntary negotiations and collective bargaining in the private and public sectors. The Committee notes the Government’s indication that there is no legislation regulating collective bargaining between workers and employers. Recalling that the aim of Article 4 of the Convention is the promotion of good-faith collective bargaining with a view to reaching an agreement on terms and conditions of employment, and that the absence of legislation should not constitute an obstacle to the exercise of the right of collective bargaining in practice, the Committee requests the Government to take the necessary measures, including legislative, if necessary, to ensure that all workers, with the only possible exception of the police, the armed forces and public servants engaged in the administration of the State can, in law and in practice, negotiate collectively through their trade unions and conclude collective bargaining agreements regulating terms and conditions of their employment. In this respect, the Committee requests the Government to provide statistics on the number of collective agreements concluded and the sectors and number of workers covered.