Rapport définitif - Rapport No. 120, 1971

1. 96. The Committee has already examined this case at its session in May 1970, when it submitted an interim report to the Governing Body. This 118th Report of the Committee, paragraphs 111-180 of which concern the present case, was approved by the Governing Body at its 180th Session (Geneva, May-June 1970).
2. 97. On that occasion the Committee had come to a number of definite conclusions on certain aspects of the complaint. Certain questions, however, remain outstanding, notably those concerning the number and relative importance of collective agreements whose registration has been refused by the Industrial Court under the Industrial Stabilisation Act, the rights granted to minority unions under the draft legislation designed to revise this Act and the effects of the distinction between registered associations and associations not registered as trade unions as far as the rights and guarantees contained in international Labour Conventions Nos. 87 and 98 are concerned. On these points the Government was requested to supply further information.
3. 98. The Government submitted its further observations on the case in a communication dated 7 October 1970.
4. 99. Trinidad and Tobago has 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).

100. The Committee's requests for further information are contained in subparagraphs 1 (a) (ii), 1 (b) (ii) and 2 (c) of paragraph 180 of its 118th Report which, after being approved by the Governing Body at its 180th Session, was transmitted to the Government for its observations. The subparagraphs in question read as follows:

1. 180. In these circumstances, with respect to the case as a whole, the Committee recommends the Governing Body:
2. (1) in respect of the allegations concerning the Industrial Stabilisation Act of 1965 (as amended in 1967):
3. (a) in connection with the requirement that collective agreements shall be approved
4. ......................................................................................................................................................
5. (ii) with a view to continuing the examination of this aspect of the case, to request the Government to be good enough to supply information on the number and relative importance of collective agreements whose registration has been refused under the Act and on the precise grounds adduced by the Court for refusal;
6. (b) in connection with the recognition of a trade union for purposes of collective bargaining: (ii) to request the Government to be good enough to keep it informed of any developments concerning the consideration of the draft legislation granting certain powers to minority unions;
7. ......................................................................................................................................................
8. (2) in respect of the Civil Service Act, 1965, and similar Acts:
9. (c) as regards the prohibition against the registration of civil servants' associations in the registry of trade unions, to request the Government to be good enough to specify the effects of the distinction between registered associations and associations not registered as trade unions in so far as the rights and guarantees referred to in paragraph 161 are concerned;
10. ......................................................................................................................................................
11. Allegations concerning the Industrial Stabilisation Act of 1965 (as Amended in 1967)
12. (a) Approval of Collective Agreements
13. 101. The complainants alleged that the Act establishes the requirement that collective agreements shall be approved by the Minister before they come into force (sections 18 and 19) and that the Industrial Court is empowered to interfere in collective agreements freely entered into by both parties (sections 22, 23 and 24).
14. 102. The Government, in its observations, stated that in its opinion section 18 (2), requiring the specification of a term agreed by the parties of not less than three years, did not infringe freedom of association or the right of workers to bargain collectively. Moreover, although a copy of the agreement had to be submitted to the Minister for him to scrutinise in the light of section 9 (2) before granting his approval, and transmitting it to the Industrial Court for registration, the final decision on registration always lay with the Court.
15. 103. When the Committee examined this aspect of the case in its 118th Report, it observed that, under section 19 (2), if the Minister was satisfied that the considerations set forth in section 9 (2) were met, he was to notify his approval to the parties. If he was not satisfied, the parties might modify the agreement before submitting it in its final form to the Minister with a request for its registration, but the Minister might raise objections in transmitting it to the Court for registration. Section 24 provides that an industrial agreement shall have effect only if it is registered by the Court in accordance with the Act. However, while the Minister was entitled to raise objections to registration, the Court was bound under section 23 to hear both parties and could register the agreement without modification, introduce, with the agreement of the parties, the modifications it considered necessary, or refuse to register the agreement, sending it back to the parties for further negotiation. In deciding whether or not to register the agreement the Court, like the Minister, was bound by the considerations set forth in section 9 (2), considerations of an essentially economic nature which reflected the principle set forth in the national Constitution, whereby the operation of the economic system should result in the material resources of the community being so distributed as to subserve the common good.
16. 104. The Committee drew attention to the importance which it attached to recognising the right of trade unions to bargain freely with employers about conditions of work, which was an essential element in freedom of association, and to recognising the principle that the public authorities should refrain from any interference that might restrict the right of trade unions to seek through collective bargaining or other means to improve the living and working conditions of those whom they represent, or impede the lawful exercise of this right. The Committee referred, moreover, to a number of previous cases where it had considered that, where legislation provided that collective agreements had to be approved by the authorities before coming into force and where the authorities had the power to modify such agreements or withhold approval for reasons of economic policy, the principle of voluntary negotiation laid down in Convention No. 98 was infringed. Considering that the present case fell into this category the Committee drew the attention of the Government to the abovementioned principles and asked the Government to supply information on the number and relative importance of the collective agreements whose registration had been refused under the Act and on the precise grounds for refusal.
17. 105. The Government, in its communication of 7 October 1970, states that the Industrial Court has never refused to register any collective agreement submitted to it under the Act.
18. 106. In these circumstances the Committee recommends the Governing Body:
19. (a) to draw the attention of the Government, once more, to the importance that the Governing Body has always attached to recognising the right of trade unions to bargain freely with employers about conditions of work, which is an essential element in freedom of association, and to the principle of voluntary negotiation incorporated in Article 4 of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), which has been ratified by Trinidad and Tobago;
20. (b) to note the Government's statement that the Industrial Court has never refused to register a collective agreement submitted to it under the Industrial Stabilisation Act.
21. (b) Effects of the Recognition of a Trade Union for Purposes of Collective Bargaining
22. 107. The complainants alleged that, under the Act, a union that had been recognised for collective bargaining purposes maintained its status irrespective of its representativeness (sections 3A (2) and (3) of the Act). They further alleged that the union recognised by the employer had the right to submit a dispute to the Minister (section 16 (1) (b) of the Act), and that the other trade unions lacked this right and, in consequence, the opportunity of defending the interests of any of their members even in cases of wrongful dismissal.
23. 108. The Government, in its observations, stated that the purpose of the Act was to ensure that a union which was representative of the majority in an appropriate bargaining unit should represent the workers in collective bargaining and other matters for a period set out in the agreement, after which fresh claims for recognition might be made by other unions. The Government admitted that the provision introduced into the Act in 1967, whereby minority unions were debarred from submitting claims on behalf of their members to the Minister, was too restrictive and that in a draft amendment currently under consideration provision was made also allowing minority unions to conduct " individual " disputes on behalf of their members.
24. 109. The Committee observed that, under the Act, once a union had been recognised it maintained its status as exclusive bargaining agent for the duration of the collective agreement-in principle not less than three years-even though in the interim it might have ceased to be the most representative union. Moreover, where such an agreement was in force, another union might only make a claim for recognition as bargaining agent between four and three months prior to the date the collective agreement was due to expire.
25. 110. The Committee referred to a number of previous cases where it had pointed out that, where legislation draws a distinction between the most representative organisations and other organisations for the purposes of collective bargaining and consultation with the authorities, this distinction should not have the effect of depriving trade union organisations not recognised as being among the most representative of the essential means whereby they may defend the occupational interests of their members, organise their administration and activities and formulate their programmes. The Committee had considered that the situation in the present case was such as to totally debar minority unions from defending the rights and interests of their members and that such a situation might even indirectly affect the right of workers, under Article 2 of Convention No. 87, to establish and join organisations of their own choosing. The Committee thought, however, that the draft legislation granting non-registered unions the right to represent their members in individual disputes would reduce the effects of the distinction between recognised and non-recognised unions. In consequence, it had requested the Government to keep it informed of any changes that might be made in the draft legislation granting certain rights to minority unions.
26. 111. The Government, in its communication, states that the publication of draft legislation to revise or replace the Industrial Stabilisation Act is imminent and that the Governing Body will be kept informed of any developments concerning the powers granted to minority unions in the draft legislation.
27. 112. In these circumstances, the Committee recommends the Governing Body to take note of the Government's assurances that the publication of draft legislation to revise or replace the Industrial Stabilisation Act is imminent and that the Committee will be kept informed of any such developments.
28. Allegations relating to Prohibitions against the Registration of Associations of Civil Servants as Trade Unions
29. 113. The complainants alleged that section 24 (5) of the Civil Service Act debarred associations of civil servants from being registered as trade unions and that the Education Act, the Prison Service Act and the Fire Service Act contained similar provisions.
30. 114. The Government, in its observations, explained that only " new " organisations' lacked the right to registration. " Existing organisations ", i.e. the Public Servants' Association and any other union recognised as a bargaining agent for any category or categories of civil servants before the entry into force of the law in question (22 January 1966) had been and continued to be registered. Moreover, the Government continued, other associations that might be formed in accordance with the Act could represent their members and defend their interests even though they were not registered as trade unions. The Government also stated that, for the purposes of consultation and collective bargaining dealt with under section 14 of the Act, no distinction was made between " existing organisations ", which were registered as trade unions, and " new associations " which might not be so registered.
31. 115. The Committee, when examining this aspect of the case in its 118th Report, assumed that such equality only existed between associations, whether existing or new, which had been " recognised " by the Minister of Finance under section 24 of the Act and that it related to the capacity to negotiate and be consulted in matters affecting civil servants. The Committee, however, wished to know whether the distinction made by the Act between " registered " and " non-registered " unions had any incidences on the rights and guarantees accorded to workers' organisations and, in particular, on those set forth in the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).
32. 116. In its communication the Government states that the distinction between registered associations and associations not registered as trade unions has no effect as far as the rights and guarantees contained in Conventions No. 87 and 98 are concerned. More specifically, the Government continues, non-registered associations have the right to draw up their Constitutions and rules and do, in fact, enjoy all the guarantees set forth in Articles 2, 3 and 4 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).
33. 117. In these circumstances, the Committee recommends the Governing Body to take note of the Government's assurances that the distinction between registered associations and associations not registered as trade unions has no effect as far as the rights and guarantees contained in Conventions Nos. 87 and 98 are concerned.