Rapport intérimaire - Rapport No. 83, 1965

1. 90. The Committee, having already considered this case at its meetings in November 1961, May 1962, October 1962, May 1963, February 1964 and November 1964, examined the matter further at its meeting in February 1965, when it submitted to the Governing Body the conclusions and recommendations contained in paragraphs 67 to 70 of its 81st Report, which was approved by the Governing Body at its 161st Session (March 1965).
2. 91. The Government of the United Kingdom has ratified the Right of Association (Non-Metropolitan Territories) Convention, 1947 (No. 84), and has undertaken, with the agreement of the Government of Southern Rhodesia, to apply its provisions without modification to Southern Rhodesia. The Government has also ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), but has reserved its decision regarding the application of the provisions of these Conventions to Southern Rhodesia.

92. Paragraph 70 of the 81st Report of the Committee, containing the recommendations which it made at its meeting in February 1965, as approved by the Governing Body, reads as follows

1. 70. In these circumstances the Committee recommends the Governing Body:
2. (a) to note with interest the information furnished by the Government to the effect that a Bill amending the Industrial Conciliation Act, " including clauses covering paragraph 446 (b) (i) of the Committee's 66th Report ", has now been enacted;
3. (b) to request the Government to be good enough to forward a copy of the new enactment referred to in subparagraph (a) above;
4. (c) to request the Government to be good enough to keep the Governing Body informed of further developments as regards the point referred to in paragraph 446 (b) and (c) of the Committee's 66th Report;
5. (d) to take note of the present interim report, it being understood that the Committee will report further to the Governing Body when it has received the additional information referred to in subparagraphs (b) and (c) above.
6. 93. In the said paragraph 446 (b) and (c) of its 66th Report the Committee had recommended the Governing Body:
7. (b) to decide, with regard to the allegations relating to registration of trade unions under the Industrial Conciliation Act, 1959:
8. (i) to take note of the statement of the Government of the United Kingdom to the effect that the Government of Southern Rhodesia has agreed that sections 37 and 48 of the Industrial Conciliation Act, 1959, be amended to make all appeals against the refusal or cancellation of registration of organisations by the registrar, without exception, lie to the Industrial Court;
9. (ii) to draw the attention of the Government of the United Kingdom once again, having regard to the observations of the I.L.O. Committee of Experts on the Application of Conventions and Recommendations referred to in paragraph 428 above, to the desirability of defining clearly in the legislation the precise conditions which trade unions must fulfil in order to be entitled to registration and of prescribing specific statutory criteria for the purpose of deciding whether such conditions are fulfilled or not;
10. (iii) to express the hope that it will be found possible to effect the legislative amendments referred to in subparagraph (i) above at an early date, and that, when this is done, account will also be taken of the considerations set forth in subparagraph (ii) above;
11. (iv) to request the Government of the United Kingdom to be good enough to keep the Governing Body informed as to further developments in this connection;
12. (c) to decide, with regard to the allegations relating to the organising rights of agricultural workers and domestic servants:
13. (i) to draw the attention of the Government once again to the fact that in undertaking to apply the Right of Association (Non-Metropolitan Territories) Convention, 1947 (No. 84), without modification to Southern Rhodesia, it has assumed the obligation under Article 2 of that Convention to guarantee the right of all employed persons " to associate for all lawful purposes ";
14. (ii) to request the Government again-having regard to the observation made in 1961 by the I.L.O. Committee of Experts on the Application of Conventions and Recommendations, as indicated in paragraph 438 above, and to the statement of a Government representative to the Conference Committee on the Application of Conventions and Recommendations in 1961 that the question of the inclusion of agricultural workers and domestic servants within the Industrial Conciliation Act, 1959, would be further considered in the light of the observations of the Committee of Experts-to indicate what measures it is proposed to take to give full effect to Article 2 of the said Convention in respect to these categories of workers.
15. 94. On 29 April 1965 the Government furnished the text of the Southern Rhodesia Industrial Conciliation Amendment Act, 1964.
16. Allegations relating to the Registration of Trade Unions under the Industrial Conciliation Act, 1959
17. 95. Sections 13 and 18 of the amending Act amend sections 37 (3) and 48 (4) of the principal Act of 1959, so as to provide for the right of appeal to the Industrial Court in all cases where the registration or proposed changes in the existing registration of a trade union or employers' organisation are refused by the Industrial Registrar.
18. 96. The Committee recommends the Governing Body to take note with satisfaction of these amendments.
19. 97. Section 37 (1) (b) and (c) of the 1959 Act has not been amended. It reads as follows:
20. 37 (1). The Registrar shall not register an applicant union or organisation unless he is satisfied that:
21. ......................................................................................................................................................
22. (b) the Constitution is consistent with this Act and does not contain provisions which are contrary to provisions of any law or are calculated to hinder the attainment of the objects of any law or are not in the interests of the effective functioning of the trade union or employers' organisation concerned or are contrary to the public interest;
23. (c) the union or organisation is a responsible body and reasonably capable of taking part in the negotiations of matters of mutual interest between employer and employee in accordance with the provisions of this Act.
24. 98. Although an appeal already lay to the courts against refusals of registration pursuant to the above subsections, the Committee pointed out, in paragraph 428 of its 66th Report, that the question as to whether the particular requirements therein are fulfilled is one upon which the Registrar has to form his own judgment, and drew attention to the fact that the I.L.O. Committee of Experts on the Application of Conventions and Recommendations had observed that, in such cases, " the existence of a procedure of appeal to the courts does not appear to be a sufficient guarantee; in effect this does not alter the nature of the powers conferred on the authorities responsible for effecting registration, and the judges hearing such an appeal... would only be able to ensure that the legislation had been correctly applied."
25. 99. It was in the light of the foregoing considerations that the Committee submitted to the Governing Body the recommendation contained in paragraph 446 (b) (ii), (iii) and (iv) of its 66th Report cited in paragraph 93 above.
26. 100. While section 37 (1) (b) and (c) of the 1959 Act has not been amended, a new subsection 37 (2) (a) has been added which requires the Registrar to afford a trade union or employers' organisation in relevant cases a period of three months within which it must comply with subsection (1) (b) of section 37. This amendment, however, in no way appears to alter the degree of judgment entrusted to the Registrar.
27. 101. In these circumstances the Committee recommends the Governing Body:
28. (a) to draw the attention of the Government once again, having regard to the observations of the I.L.O. Committee of Experts on the Application of Conventions and Recommendations referred to in paragraph 98 above, to the desirability of defining clearly in the legislation the precise conditions which trade unions must fulfil in order to be entitled to registration and of prescribing specific statutory criteria for the purpose of deciding whether such conditions are fulfilled or not;
29. (b) to suggest to the Government that consideration be given to further amending the Industrial Conciliation Act, 1959, so as to give full effect to the principle set forth in the preceding subparagraph, and to request the Government to be good enough to keep the Governing Body informed of any further developments in this connection.
30. Allegations relating to the Organising Rights of Agricultural Workers and Domestic Servants
31. 102. At its meeting in October 1962 the Committee examined, in paragraphs 436 to 445 of its 66th Report, the situation with regard to the organising rights of agricultural workers and domestic servants, having regard to the fact that their rights are not provided for in the Industrial Conciliation Act, although the Government had stated that they were not prohibited by law from forming unions. The Government had said also that the protection of the right to organise of such workers had been statutorily guaranteed in general terms since the enactment in 1901 of the Masters and Servants Act.
32. 103. The Committee recalled that, at its March 1961 meeting, the I.L.O. Committee of Experts on the Application of Conventions and Recommendations made an observation, in respect to these matters, in connection with the application of the Right of Association (Non-Metropolitan Territories) Convention, 1947 (No. 84), in Southern Rhodesia. The Committee of Experts regretted to note that the Act, by virtue of section 4 (2) (a) thereof, did not apply to " persons in respect of their employment in farming operations (including forestry) or any domestic persons in private households " and stated that it would be glad if the Government would indicate the measures which it was proposed to take to guarantee the right of these workers " to associate for all lawful purposes ", as required by the Convention, which applies to all employed persons.
33. 104. Further, the question of the application of the Right of Association (Non-Metropolitan Territories) Convention, 1947 (No. 84), in Southern Rhodesia had then been considered by the Conference Committee on the Application of Conventions and Recommendations during the 45th (1961) Session of the International Labour Conference. A representative of the Government of the United Kingdom had drawn the attention of the Conference Committee to the position of agricultural workers' and domestic servants' organisations under the Masters and Servants Act mentioned above, but had stated that their inclusion within the Industrial Conciliation Act would be further considered in the light of the Committee of Experts' observations.
34. 105. The Committee on Freedom of Association pointed out that the Industrial Conciliation Act, 1959, affords to trade unions governed by that Act a very considerable number of advantages compared with trade unions not covered by the Act, e.g. corporate status, participation in industrial councils and in the statutory mediation and arbitration procedures, guaranteed protection against victimisation, immunities in respect of acts connected with lawful strikes, etc., whereas the Masters and Servants Act merely made it no longer criminal to form a combination.
35. 106. It was in these circumstances that the Committee made to the Governing Body the recommendation contained in paragraph 446 (c) of its 66th Report cited in paragraph 93 above.
36. 107. When the Committee further considered this aspect of the case at its meeting in February 1965 it had before it a statement by the Government that there had been no further developments in this connection. Accordingly, the Committee recommended the Governing Body, in paragraph 70 (c) of its 81st Report, to keep it informed of any further developments.
37. 108. The situation does not appear to have been changed by the enactment of the Industrial Conciliation Amendment Act, 1964.
38. 109. At its meeting in March 1965 the Committee of Experts on the Application of Conventions and Recommendations noted with regret that, although the Act had been the subject of extensive amendments, no measures had been taken to extend its scope to persons engaged in farming operations or to domestic servants, and that the Government merely proposed to study this question. The Committee of Experts recalled that it had made observations on this matter since 1961. It said that it trusted that measures would be taken without further delay to extend the Act to the above-mentioned categories of workers and thus bring the territory's legislation into conformity with the Right of Association (Non-Metropolitan Territories) Convention, 1947 (No. 84), which guarantees the right " to associate for all lawful purposes " to all employed persons.
39. 110. In these circumstances the Committee recommends the Governing Body:
40. (a) to draw the attention of the Government once again to the fact that, in undertaking to apply the Right of Association (Non-Metropolitan Territories) Convention, 1947 (No. 84), without modification to Southern Rhodesia, it has assumed the obligation under Article 2 of that Convention to guarantee the right of all employed persons " to associate for all lawful purposes ";
41. (b) to request the Government again-having regard to the observations made in 1961 and 1965 by the I.L.O. Committee of Experts on the Application of Conventions and Recommendations, as indicated in paragraphs 103 and 109 above, and to the statement of a Government representative to the Conference Committee on the Application of Conventions and Recommendations in 1961 that the question of the inclusion of agricultural workers and domestic servants within the scope of the Industrial Conciliation Act, 1959, would be further considered in the light of the observations of the Committee of Experts-to indicate what measures it is proposed to take to give full effect to Article 2 of the said Convention in respect to these categories of workers.