Demande directe (CEACR) - adoptée 2021, publiée 110ème session CIT (2022)

Repetition

The Committee notes the Government’s reply to the 2015 International Trade Union Confederation (ITUC) observation alleging union-busting, harassment and anti-union dismissals of workers from the Bustamante Industrial Trade Union (BITU) and the National Workers’ Union (NWU).

Article 3 of the Convention. Picketing. The Committee had previously noted that section 33(2) of the Trade Union Act (TUA) prohibits picketing for solidarity or sympathy reasons and had requested the Government to take the necessary measures to ensure that peaceful picketing in the context of sympathy and solidarity strikes is not subject to sanctions. The Committee notes the Government’s indication that while it does not intervene with peaceful picketing, it has a legal obligation to intervene in situations when the picketing is done in such a manner as to intimidate or create a breach of the peace. The Government further points out that pursuant to section 33(1) of the TUA an offence is committed only if persons “attend in such numbers or otherwise is such manner as to be calculated to intimidate any person in that house or place, or to obstruct the approach thereto or egress there from, or to lead to a breach of the peace”. The Committee considers that intervention by the authorities is justified only when the picketing ceases to be peaceful without regard to the intentions or calculations of persons engaged in the picketing. The Committee therefore once again requests the Government to take the necessary measures, including by revising section 33(2) of the TUA, to ensure that peaceful picketing in the context of sympathy and solidarity strikes is not subject to the Government’s intervention and sanctions. The Committee requests the Government to indicate all measures taken in this regard.

Limitation of strike action. The Committee had requested the Government to provide information on how sections 10 and 32 of the Labour Relations and Industrial Disputes Act (LRIDA) were applied in practice. The Committee had previously noted that pursuant to these provisions, if the Minister considers that an industrial action in non-essential services has or would be likely to cause an interruption in the supply of goods or in provisions of services of such a nature, or on such a scale so as to be gravely injurious to the national interest (national economy, national security, public order, life and health of a substantial number of persons), then he or she may make an order to that effect and apply to the Supreme Court ex parte for an order restraining the parties from commencing or from continuing the industrial action. The Committee notes with interest the Government’s indication that section 10 can only be used where specified conditions are met. The threshold of proof required has meant that in practice, the Minister has not utilized this provision. With regard to section 32, the Government indicates that a high standard must be met in order to satisfy the Supreme Court that the legal requirements of application of this provision are fulfilled. Those standards require that the action has to be likely to be gravely injurious to the national economy, imperil national security or create a serious risk of public disorder; or endanger the lives of a substantial number of persons or expose a substantial number of persons to serious risk of disease or personal injury. The Government further indicates that while these provisions exist, they have not been invoked in relation to any industrial dispute in recent years and the Ministry of Labour and Social Security has been able to utilize its conciliatory powers to amicably resolve matters that may potentially fall within sections 10 and 32. The Committee takes due note of this information, and encourages the Government to continue exercising restraint in using sections 10 and 32 of the LRIDA, bearing in mind that outside essential services, for example, services the interruption of which could endanger the life, personal safety or health of the whole or part of the population, the right to strike may only be restricted for public servants exercising authority in the name of the State, or in case of acute national crisis, but only for a limited period of time and to the extent necessary. The Committee further encourages the Government to review these provisions in consultation with the social partners with a view to their possible amendment.

Compulsory arbitration. The Committee had previously expressed concern at the lack of progress in amending sections 9, 10 and 11(A) of the LRIDA that confer extensive power to the Minister to refer any industrial dispute to arbitration. The Committee notes the Government’s indication that the Ministry will examine the Committee’s concerns in consultation with social partners and the Labour Advisory Council with a view to making recommendations for legislative reform. The Committee once again expresses its concern at the lack of progress in this regard and expects that sections 9, 10 and 11(A) of the LRIDA will be amended in the near future so as to bring them into conformity with the Convention in line with the Committee’s previous comments, and requests the Government to indicate any developments in this regard.