Suites données aux recommandations du comité et du Conseil d’administration - Rapport No. 335, Novembre 2004

Effect given to the recommendations of the Committee and the Governing Body

1. 173. During the previous examination of this case [see 333rd Report paras. 126-131], which concerns certain provisions of the Guidelines for the Formation and Operation of Employees’ Councils issued by the Board of Investment (BOI), i.e. the overseeing public authority in free trade zones (FTZs), the Committee: (1) had noted that certain amendments had already been drafted (concerning section 5 on the organization of elections to employees’ councils, section 12.3 on the procedure for the conduct of meetings between the employer and elected representatives, and section 13(ii) on the conduct of negotiations between the employees’ council and the employer) and expressed the hope that they would soon be adopted by the National Labour Advisory Council (NLAC); (2) had recalled that only two collective agreements had been concluded in FTZs and had requested the Government to take measures with a view to promoting collective bargaining in FTZ enterprises and to amend the 40 per cent requirement for the recognition of trade union representativeness for collective bargaining purposes, which had been considered as too restrictive by the Committee; (3) had requested the Government to ensure that representative trade unions enjoy the same facilities in the undertaking as employees’ councils without discrimination and therefore, to ensure that section 9A of the Labour Standards and Employment Relations Manual enables trade union representatives to have access to the workplace even when their organization does not have representative status in a particular FTZ enterprise, and that permission for such access may not be unreasonably withheld, with due respect to the need to maintain the smooth functioning of the enterprise concerned.
2. 174. In its communication dated 14 May 2004, the Government indicates with regard to the first issue noted above, that the BOI has already effected the modifications suggested by the Committee concerning section 5 on the organization of elections to employees’ councils, section 12.3 concerning the procedure for the conduct of meetings between the employer and elected representatives and section 13(ii) on the conduct of negotiations between the employer and elected representatives. The Government attaches the final printed version of the BOI Guidelines for the Formation and Operation of Employees’ Councils which contain the modifications in question. It further adds that these modifications have not been presented to the NLAC for adoption yet because this body became defunct prior to the national elections of 2 April 2004 and had to be reconstituted after the elections. The Government assures the Committee that once the NLAC resumes its meetings, the Guidelines will be presented to it for discussion and adoption.
3. 175. With regard to the 40 per cent threshold for recognition of trade union representativeness, the Government notes that this threshold applies only for collective bargaining purposes and for no other representation function and that the trade unions have not complained of this rule which came into force in 1999. The Government finally indicates that this matter would be taken up by the NLAC once reconstituted.
4. 176. With regard to the issue of access to the FTZs by trade union representatives, the Government indicates that section 9A of the BOI Manual on Labour Standards and Employment Relations was modified so that trade union representatives are guaranteed access to workplaces with due respect for the rights of property and management. The Government attaches the text of the Manual, section 9A which provides the following:
   • A duly nominated representative of a trade union who is not employed in a BOI enterprise but whose trade union has members employed therein, whether within or outside the export processing zone, shall be granted access to the enterprise/export processing zone, with due respect for the rights of property and management, provided the union:
     • (a) seeks access to the enterprise for the purpose of performing representation functions;
     • (b) has obtained the consent of the employer for such access which may not be unreasonably withheld, with due respect to the need to maintain the smooth functioning of the enterprise concerned; and
     • (c) having satisfied the above requirements, obtained an entry permit from BOI authorities for the entry sought, in the case of an enterprise located within an export processing zone.
   • 177. The Committee recalls that during the previous examination of this case it had already taken note of the modifications to sections 5, 12.3 and 13(ii) of the BOI Guidelines for the Formation and Operation of Employees’ Councils and had expressed the hope that they would be adopted by the NLAC soon. The Committee notes that according to the Government, although these amendments are now final and figure in the printed version of the Guidelines, they have not been presented yet to the NLAC for adoption because this body became defunct prior to the national elections held on 2 April 2004 and had to be reconstituted thereafter. The Committee notes that according to the Government, the Guidelines will be presented to the NLAC once this body resumes its meetings. The Committee requests the Government to keep it informed in this respect.
5. 178. With regard to the revision of the 40 per cent threshold for recognition of trade union representativeness, the Committee notes that, according to the Government, the issue of the 40 per cent requirement will be taken up by the NLAC once reconstituted. The Committee requests to be kept informed in this respect.
6. 179. The Committee also notes that the Government does not indicate any further measures taken to promote collective bargaining in FTZs, as requested by the Committee. The Committee recalls that the actual or potential position of trade unions as collective bargaining agents should not be undermined by the presence of works councils and that the right of trade unions to participate in collective bargaining should be safeguarded. The Committee therefore once again requests the Government to indicate the concrete measures taken to promote collective bargaining in FTZs and to provide statistical data regarding the number of collective agreements concluded in FTZs during the last year.
7. 180. Concerning the issue of the access of trade union representatives to FTZs, the Committee notes that section 9A of the BOI Manual on Labour Standards and Employment Relations has been revised so as to provide trade unions with this facility under certain conditions. The Committee observes that, according to section 9A, access of trade union representatives to FTZs is envisaged only “for the purpose of performing representation functions”. The Committee requests the Government to specify the exact scope and meaning of this phrase.