Rapport définitif - Rapport No. 238, Mars 1985

1. 152. The complaint of the Monserrat Allied Workers' Union (MAWU) is contained in a communication dated 18 July 1984; the complainant supplied additional information in a communication dated 17 August 1984. The Government supplied its observations in a letter dated 4 January 1985.
2. 153. The United Kingdom has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No.087) and the Right to Organise and Collective Bargaining Convention, 1949 (No.098) and has declared them applicable without modifications to Montserrat.

A. The complainant's allegations

1. 154. In its communication of 18 July 1984 the MAWU states that, on 25 June
2. 1984, during a strike by water and electricity authority employees over pay
3. increases to be included in a new collective agreement, the Governor declared
4. a state of emergency and, on 29 June 1984, convened a special emergency
5. session of the Legislative Council to pass strike-breaking legislation. The
6. complainant provides a copy of the Bill, the Essential Services Ordinance, the
7. pertinent sections of which read as follows:
8. Section 2.
9. (1) Every person employed in an essential service who wilfully breaks or
10. terminates his contract of service, knowing or having reasonable cause to
11. believe that the probable consequence of his so doing, either alone or in
12. combination with others, will be to deprive the public, wholly or to a great
13. extent of that service, shall be guilty of an offence and on summary
14. conviction thereof be liable to a fine not exceeding five hundred dollars or
15. to imprisonment for a term not exceeding three months or to both such fine and
16. imprisonment: provided that where any collective withdrawal of labour from an
17. essential service is contemplated, whether in pursuance of a trade dispute or
18. otherwise, and notice in writing of their intended participation in such
19. withdrawal is given either individually by persons employed in that service or
20. on their behalf by a registered trade union or registered trade union of which
21. such persons are members, any such person shall not be liable under this
22. subsection unless he breaks or terminates his contract of service before the
23. expiration of the period of twenty-eight days next following delivery of that
24. notice, or otherwise than strictly in accordance with the valid terms of that
25. notice.
26. (...)
27. (3) Every person who incites or instigates or in any way encourages,
28. persuades or influences a person employed in an essential service to break or
29. terminate his contract of service, ... shall if breach or termination of
30. contract has taken place:
31. a) without notice having been given as provided in the proviso to subsection
32. (1) of this section; or
33. b) such notice having been given, and remaining valid otherwise than on the
34. expiration of that notice not being earlier than twenty-eight days after
35. delivery thereof; be guilty of an offence and shall, on summary conviction
36. thereof, be liable to a fine not exceeding one thousand dollars or to
37. imprisonment for a term not exceeding six months or to both such fine and
38. imprisonment.
39. Under section 2(7) "essential services" are listed as including air traffic
40. (including meteorology, telecommunications, security, fire and crash services
41. connected with airports), electricity, fire, medical and health,
42. telecommunications, water and ports. Under section 2(8) the Governor in
43. Council may amend this list of essential services.
44. 155. In addition, the complainant alleges that it was the Government's
45. intention to cripple the general workers' unions by restricting through
46. legislation the categories of workers which any single union could represent.
47. 156. Lastly, the MAWU states that Government's proposals put to the
48. legislature included: breaking the current strike by compelling the workers to
49. return to work on pain of dismissal without compensation; striking workers
50. were to be asked to sign a document saying they would not abide by their own
51. work-to-rule vote on pain of dismissal without compensation; any person found
52. damaging water mains should be shot on sight; workers were to be forced back
53. to work under the supervision of the police and defence forces; the state of
54. emergency would remain in force until electricity and water supplies were back
55. to normal.
56. 157. In its communication of 17 August 1984, the MAWU alleges that on 25 June
57. 1984 the Executive Council invoked section 16 of the Water Authority
58. Ordinance, 1972, to direct all employees of the authority to return to their
59. normal work by the next day. Section 16 reads as follows:
60. In the exercise of its powers and the discharge of its functions under this
61. Ordinance, the authority shall conform with any general or special directions
62. given to it by the Governor in Council.
63. It states that the Essential Services Bill had passed its first reading and
64. may be finalised shortly against strong protest from all workers and the local
65. Council of Churches.
66. 158. In documentation attached to its letters the MAWU challenges the reasons
67. given by the Government for introducing the Bill: it admits that there were
68. water shortages, that some pipes - installed before 1920 - burst under the
69. build-up of pressure in the water system and there were signs of vandalism. It
70. denies, however, that there was a national crisis or violence which might
71. justify such action. In the documentation it is even suggested that other
72. persons having an intimate knowledge of the water system could have been
73. responsible for the damage to water installations. The water authority and
74. electricity authority finally negotiated agreements with their employees and
75. on 29 June 1984 the MAWU ended the strikes; according to the documentation,
76. workers continued to work to rule for some days while a final agreement was
77. reached
78. B. The Government's reply
79. 159. In its communication of 4 January 1985 the Government states that the
80. allegations are without foundation as its intention was to pass legislation to
81. introduce safeguards to protect the community in the event of industrial
82. disputes in essential services such as the electricity and water industries.
83. It points out that the Essential Services Bill does not outlaw strike action
84. and was not laid before the legislature until 18 July 1984 when the industrial
85. action had ceased. It states that the Bill still awaits its second and third
86. readings.
87. 160. According to the Government, its proposal to look at the question of
88. restricting the categories of workers represented by any single union was made
89. during an emergency session of the legislature on 28 June 1984 and addressed
90. the problem of one union using its position of representing workers in more
91. than one utility in order to bring pressure to bear on the Government by
92. initiating secondary action. The Government states that nothing has been done
93. to pursue this proposal.
94. 161. With regard to the other points raised by the MAWU the Government states
95. that on 25 June 1984 the Governor declared a state of emergency due to the
96. deterioration of the water system to certain areas, which among other things
97. left one hospital without water and was causing the Chief Medical Officer
98. concern. Another factor which bore on the Governor's declaration was that as
99. quickly as repairs were carried out to the system by the water authority
100. management and volunteers, the pipes were broken or disrupted again during the
101. night.
102. 162. According to the Government, the water workers were informed under the
103. terms of the state of emergency that if they did not return to work on 26 June
104. 1984 the Governor would recruit other labour to carry out essential work to
105. restore water supplies. This was necessary in view of the rapidly increasing
106. risk to public health. It states that at no time were the workers forced back
107. to work and, in any event, the water workers returned to work of their own
108. accord on 26 June 1984. As for the electricity workers, the union agreed to a
109. return to work on 29 June 1984 but stated that the workers would work to rule.
110. The Electricity Services Limited manager decided that in the circumstances a
111. conditional return to work was unacceptable and in the event the workers
112. returned to work and worked normally.
113. 163. As regards the roles of the police and defence forces during the state
114. of emergency and the length of the state of emergency, the Government states
115. that the police force was responsible for the protection of the water and
116. electricity supply systems throughout the emergency. In order to fulfil this
117. responsibility armed officers patrolled the water supply system at night and
118. also guarded the power station. Even though these officers were armed, their
119. weapons were only to be used in self-defence. The volunteer territorial
120. defence force was not mobilised during the state of emergency although they
121. were on a three hour standby. However, nine civilian volunteers who helped
122. repair water pipes for two days were also members of the defence force.
123. Although these men were in civilian clothes and unarmed it might have been
124. assumed that they were involved in their capacity as members of the defence
125. force; this would have been a wrong assumption. The Government states that the
126. Governor felt it necessary to continue the emergency for three days after the
127. return to work in order to ensure that services were getting back to normal.
128. The state of emergency was finally lifted on 3 July 1984.
129. 164. In conclusion the Government considers that, since the allegations
130. concern incidents that took place during a state of emergency and at no time
131. during the dispute were the workers denied the right to strike or to be
132. represented by the MAWU, there has been no breach of any ILO Conventions.

C. The Committee's conclusions

1. 165. This case concerns the introduction of an Essential Services Bill during a strike by water and electricity workers in June 1984, as well as allegations that proposals were made to limit union membership and striking workers were compelled to return to work on pain of dismissal without compensation.
2. 166. The Committee notes that the Government's proposal to discuss limiting secondary action by restricting union membership was not pursued and therefore considers that no purpose would be served in examining this aspect of the case.
3. 167. The Committee would recall that recourse to strike action is a legitimate means available to workers and their organisations for the promotion and protection of their economic and social interests. However, as regards the Essential Services Bill referred to in the complaint, and which,
   • the Committee notes, was introduced in the legislature on 18 July 1984, the Committee observes, first, that the Bill does not ban strikes but imposes a cooling-off period of 28 days. This in itself is not in conflict with the principles of freedom of association in so far as the procedure is not so cumbersome as to render the lawful strike impossible in practice (see General Survey on Freedom of Association and Collective Bargaining of the Committee of Experts on the Application of Conventions and Recommendations, ILC, 1983, Report III (Part 4B), para. 219).
4. 168. As regards the nature of the services to which the Bill applies, the Committee would point out that it has, in the past, considered that strikes can be limited - or even prohibited - in essential services in the strict sense of the term, for example, air traffic control (see 211th Report, Case No. 1074 (USA), para. 365), medical and health (see 199th Report, Case No. 910 (Greece), para. 117) and water (see 234th Report, Case No. 1179 (Dominican Republic), para. 299) that is to say where the interruption of these services would endanger the life, personal safety or health of the whole or part of the population. Restrictions in such services should be offset by adequate, impartial and speedy conciliation and arbitration procedures in which the parties concerned can take part at every stage.
5. 169. In the past, the Committee has expressed the opinion that services such as ports (118th Report, Case No. 589 (India), para. 90) and telecommunications (218th Report, Case No. 1131 (Upper Volta), para. 779) were not essential in the strict sense of the term and accordingly strike restrictions should not apply to them. Given that the Essential Services Bill in the present case
   • lists these latter services as essential and empowers the Governor in Council to amend the list, the Committee would request the Government to consider the possibility of removing the authority of the Governor in Council to amend the list at his discretion and of removing from the Bill those services that are not strictly essential, having regard to the above definition. The Committee
   • refers this aspect of the case to the Committee of Experts on the Application of Conventions and Recommendations.
6. 170. As regards the role of the police and defence forces during the industrial dispute, the Committee notes the Government's explanation that police officers only were used during the nine-day long emergency to protect water and electricity installations. In this connection, the Committee also notes that the complainant acknowledged that there had been signs of vandalism
   • but challenged that this was attributable to the striking workers. In the past the Committee has recommended the dismissal of allegations concerning intervention by security forces when the facts show that such intervention was limited to the maintenance of public order and did not restrict the legitimate exercise of the right to strike (see 197th Report, Case No. 915 (Spain), para.
7. 473). In the present case the Committee notes that the information supplied by the complainants is insufficient to show that the role of the police in the present dispute exceeded that of maintaining order and protecting installations.
8. 171. Lastly, and in general, regarding the declaration of a state of emergency during the strike, the Committee has stressed that special measures restricting the free exercise of trade union rights should be limited in time and scope to the immediate period of emergency (see 214th Report, Cases Nos. 997, 999 and 1029 (Turkey), para. 571). In the present case, the Committee
   • notes that the strike was called off by the water authority workers on 26 June 1984 in accordance with the special direction made under the Water Authority Ordinance and the electricity workers returned to normal work on 29 June 1984, the state of emergency being lifted on 3 July. In view of the fact that the emergency measures were limited to the duration of the dispute, and in view of
   • the nature of the services to which the dispute related, the Committee considers that the allegations that trade union rights were infringed have not been substantiated.