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

Convention (n° 87) sur la liberté syndicale et la protection du droit syndical, 1948 - Maldives (Ratification: 2013)

Autre commentaire sur C087

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 and 2016 observations of the International Organisation of Employers (IOE), which are of a general nature. The Committee also notes the 2015 observations of the International Trade Union Confederation (ITUC), alleging police violence and arrest of union leaders during a peaceful demonstration 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 Report 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. 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 Committee notes the Government’s indication that while there is no exclusive labour legislation applicable to workers’ and employers’ organizations, the Constitution grants everyone the freedom to form associations and societies, including the right to form trade unions and to participate in their activities. The Associations Act, 2003, allows for the establishment of non-governmental organizations and the existing workers’ and employers’ organizations are registered under this Act. The Committee also notes that a draft Industrial Relations Act had been 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 and giving effect to the rights enshrined in the Convention. The Committee notes the Government’s indication provided under the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), that it is undertaking final consultations with the stakeholders in order to submit the draft Act to Parliament for adoption. 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. In that regard, the Committee expects that the Industrials Relations Act that is undergoing final consultations will address all of the Committee’s observations below so as to ensure its full conformity with the Convention.

Pending the adoption of the Industrial Relations Act and emphasizing the desirability of establishing a comprehensive legislative framework regulating collective labour relations, the Committee will examine the legislation currently in force.

Associations Act, 2003

Article 2 of the Convention. Right of workers and employers to establish organizations without distinction whatsoever. The Committee notes that while section 6(b) of the Associations Act requires persons who want to form an association to be 18 years old, the minimum legal age for admission to employment is set at 16 years (section 6 of the Employment Act, 2008). Recalling that minors who have reached the minimum legal age for admission to employment, both as workers and apprentices, should be able to exercise their trade union rights, the Committee requests the Government to take the necessary measures to amend section 6(b) of the Associations Act to this effect.

Right to establish organizations without previous authorization. The Committee notes that in order to be registered, an association must have a name which has to be written down in its governing regulations (sections 5(a) and 6) and observes that if the registrar considers the name of the association undesirable, such name cannot be registered (section 9(a)). Recalling that formalities giving the authorities discretionary power to refuse the establishment of an organization are in violation of Article 2 of the Convention, the Committee requests the Government to take the necessary measures to amend section 9(a) to limit the discretionary power of the registrar. The Committee also requests the Government to indicate whether associations can appeal to the courts against any administrative decision relating to their registration.

The Committee further requests the Government to provide statistics on the number of workers’ and employers’ organizations registered, the sectors and the number of workers covered.

The Committee also observes that section 37(b) of the Associations Act provides for a penalty of two to five years of imprisonment or banishment to another island or house arrest for any person who incorporates or operates an association without registration in accordance with the Act. It recalls in this regard that although the official recognition of an organization through its registration constitutes a relevant aspect of the right to organize, as it is the first measure to be taken so that organizations can fulfil their role effectively, the exercise of legitimate trade union activities should not be dependent upon registration and should not be subject to penalties. The Committee requests the Government to take the necessary measures to amend section 37(b) of the Associations Act accordingly.

Right of workers and employers to establish organizations of their own choosing. Observing that there are no legislative provisions on the right of workers and employers, who are engaged in more than one occupation or sector, to join the corresponding organizations, the Committee requests the Government to provide information on whether workers and employers can join more than one organization.

Article 3. Freedom to elect representatives. The Committee notes that a member of the executive committee of an association must be 18 years or older and a general member of the association (section 24 of the Associations Act). The Committee recalls in this regard that requirements for candidates for trade union office to have reached the age of majority are incompatible with the Convention. The Committee requests the Government to take the necessary measures to amend section 24 of the Associations Act so as to ensure that minors who are eligible to employment are also eligible for trade union office.

Organization of administration and activities and formulation of programmes. The Committee notes that the Associations Act contains a number of provisions which regulate in detail the internal functioning of associations: section 5(f) states that any money or property of the association after its dissolution will be given away to another non-profit association or to a government-approved charity; section 10 provides that in order to change the name of an association, a special resolution must be passed (a resolution passed by a two-thirds majority of those votes of members eligible to vote in a general meeting of an association – section 39(c)); section 18 allows changes to be made to the Governing Regulation of a registered association only by adopting a special resolution and after approval of the registrar; section 23 provides detailed instructions on how to address debts of an association; and section 31 states that voluntary dissolution of an administration must be approved by passing a special resolution in a general meeting. The Committee notes that if the registrar considers an association’s seal, flag, colour, motto or change of name undesirable, such characteristics cannot be registered (sections 11 and 14(b)). Recalling that these matters of internal administration should be left to the discretion of members of the association and that the registrar should not have discretionary power to intervene in the selection of an association’s characteristics, the Committee requests the Government to take the necessary measures to amend sections 5(f), 10, 11, 14(b), 18, 23 and 31 accordingly. The Committee also requests the Government to indicate the necessary prerequisites for a workers’ or employers’ association to be able to receive foreign assistance in line with section 22 of the Associations Act and to provide a copy of the regulations to which this provision makes reference.

Article 4. Administrative and judicial dissolution. The Committee observes that in line with section 32(a) of the Associations Act, an association can be dissolved by the registrar, if it failed to commence any activities within two years from registration, failed to carry out any activity for two years, is repeatedly at fault with the Act or committed an act prohibited by section 19, which enumerates acts that could be considered as a threat to the harmony and sovereignty of the country. The Committee notes that the Act does not provide for an appeal to courts in such cases. The Committee further observes that in line with section 33, a court can order the dissolution of an association if it is unable to settle its debt, or has been repeatedly in default to comply with the statutory requirements or is managed for illegal purposes or where the court is of the opinion that it is the most just and fair solution in respect of the matter. The Committee considers that a provision which allows the court to dissolve an association, if it is in its opinion the most just and fair solution, is overly broad and may fail to afford any precise criteria for a judicial decision. Recalling that dissolution of a workers’ or employers’ organization is an extreme measure with serious consequences upon the right to organize which should only be used in limited circumstances, and that the decision on dissolution should only be made in a judicial procedure based on precise and predetermined criteria, the Committee requests the Government to take the necessary measures to amend sections 32(a) and 33 of the Associations Act to that effect.

The Committee also notes that section 37(a) of the Associations Act provides for a fine not exceeding 500 Maldives rufiyaa (MVR) (US$32.50) which may be imposed on an association that contravenes the Act or fails to act within the allocated period or disobeys orders given by the registrar. It recalls in this regard that, in line with Article 8 of the Convention, workers, employers and their respective organizations must, in exercising the rights provided for in the Convention, respect the law of the land but the law may not be such as to impair, nor so applied as to impair, the guarantees provided for in the Convention. In view of the above comments and bearing in mind that a number of provisions of the Associations Act do not provide sufficient protection of the rights enshrined in the Convention, the Committee expects that the Government will take all the necessary measures, in consultation with the social partners, to bring the Associations Act into conformity with the Convention, and will indicate all progress made in this regard.

Article 5. The right to form federations and confederations. The Committee observes the Government’s indication that there are no specific provisions granting the right to form federations and confederations, and to affiliate with international organizations. Recalling the importance of forming federations and confederations for the purpose of effectively defending workers’ interests, the Committee requests the Government to take the necessary measures, including through the adoption of specific legislative provisions, in order to ensure that workers’ and employers’ organizations can form federations and confederations, and affiliate with international organizations.

Freedom of Peaceful Public Assembly Act, 2013, and Regulation governing dispute resolution between the employer and the employee, 2011

The Committee notes that although article 31 of the Constitution guarantees every person employed in the Maldives and all workers the freedom to stop work and to strike in order to protest, section 24(b)(7) of the Freedom of Peaceful Public Assembly Act, 2013, allows assemblies in tourist resorts, commercial harbours and airports only with a prior written approval from the police. Furthermore, the Regulation governing dispute resolution between the employer and the employee, 2011, determines that strikes can only take place in areas near or surrounding a workplace and its entrance or near the relevant department which administers work or employment, without interrupting the persons moving in and out (section 7) and, in case of industrial islands and tourist resorts, which are generally private property of the employer, strikes can only be carried out in staff courtyards or areas permitted for strike action (section 7(b)). The Regulation further provides that strikes should be without any harm to the employer or the workplace (section 5), that workers on strike should not do any act to directly obstruct customer services or cause any obstructions to the employer’s or a third party’s property (section 11(a)(3)–(4)) and that, where the employee’s normal residence is the workplace or work site, striking workers should not interrupt other employees providing services and their customers (section 8(a)). If workers in tourist resorts or areas allocated for industrial work strike for more than six hours, the employer can order the strikers to leave the island or location, if the Labour Relations Authority decides that, after following the procedures prescribed for strike action under section 6 (obligation to attempt to resolve labour disputes amicably), the employer acted within the prescribed laws and the Regulation or without any detriment to the rights granted under the employment agreement or the Employment Act and in accordance with section 6 of the Regulation (section 8(b)(1)). Recalling that strikes are essential means available to workers and their organizations to protect their interests and that limitations on this right can only be imposed in situations of national or local crisis, essential services in the strict sense of the term and for public servants exercising authority in the name of the State, the Committee considers that the abovementioned restrictions placed on the right to assemble and strike are so broad that they could seriously impede the right to strike, especially considering that any stoppage of work could be considered to harm the employer or the workplace or obstruct customer services, in particular in tourist resorts. In view of the above and emphasizing that the right to strike is a constitutionally guaranteed right, the Committee requests the Government to take the necessary measures to repeal section 24(b)(7) of the Freedom of Peaceful Public Assembly Act and amend sections 5, 7, 8 and 11 of the Regulation on dispute resolution, so as to remove undue restrictions on the right to strike and ensure that all workers covered by the Convention, including those in island resorts, can in practice exercise their right to strike.

Further observing that section 6 of the Regulation on dispute resolution does not set any time limit for the exhaustion of the obligatory grievance redress mechanism at the employer level, and recalling that such machinery should not be so complex or slow that a lawful strike becomes impossible in practice or loses its effectiveness, the Committee requests the Government to provide information on the application in practice of section 6 of the Regulation.