CMNT_TITLE

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Kiribati (RATIFICATION: 2000)

Other comments on C087

Observation

Direct Request

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Article 2 of the Convention. Minimum membership requirement. The Committee previously requested the Government to amend section 7 of the Trade Unions and Employer Organisations Act (TEA) so as to lower the minimum membership requirement for the registration of employers’ organizations. The Committee notes with interest that section 24 of the Draft Employment and Industrial Relations Code 2013 (draft 2013 Code) lowers the requirement from seven to five members.

Right of public employees to establish and join organizations of their own choosing. The Committee had previously requested the Government to amend the National Conditions of Service (NCS) providing that all employees are free to join a “recognized” staff association or union, given that there is no legislative provision relating to union recognition. The Committee notes the Government’s indication that there were divergent views among the authorities in this respect, on the one hand recognizing the inconsistency with the TEA and on the other hand considering that this is not an issue as the law overrides the NCS. Reiterating the necessity to remove the reference to “recognized” staff associations or unions from section L.7 of the NCS for the purposes of legal certainty, the Committee requests the Government to provide information as to the decision taken in this respect.

Article 3. Right of organizations to elect representatives freely. In its previous comments, the Committee noted that there was no legal provision regarding the right to elect representatives in full freedom. The Committee notes with interest that this right is expressly guaranteed by section 19 of the draft 2013 Code.

Right of organizations to organize their activities. The Committee notes that the 2008 Amendment Act to the Industrial Relations Code (IRC), while removing the reference to strikes that might “expose valuable property to the risk of destruction” and the prison sentences for participation in unlawful strikes, maintained the prison sentences for strikes in essential services and increased the fine penalties for participation in strikes in essential services or in unlawful strikes. The Committee also notes the Government’s indication that, under the current labour law reform, imprisonment would not be an available sentencing option for strike action, unless it constitutes a criminal offence. Indeed, the Committee welcomes that the draft 2013 Code does not contain penalties of imprisonment in case of participation in strikes in essential services or in unlawful strikes. It notes, however, that involvement in such strikes still constitutes an offence entailing heavy fines and recalls that it has continually emphasized that: (i) no penal sanctions should be imposed against a worker for having carried out a peaceful strike and thus for merely exercising an essential right; and (ii) such sanctions could be envisaged only where, during a strike, violence against persons or property, or other serious infringements of penal law have been committed, and can be imposed exclusively pursuant to legislation punishing these acts, such as the Penal Code (see General Survey on the fundamental Conventions, 2013, paragraph 158). The Committee requests the Government to indicate in its next report the measures taken in order to review the provisions of the draft 2013 Code so as to ensure respect for the principles cited above.

Dispute resolution procedure. The Committee had previously requested the Government to amend the IRC, so as to limit the possibility of imposing compulsory arbitration to cases in line with freedom of association principles. The Committee notes the Government’s indication that: (i) the Decent Work Agenda Steering Committee considered that the removal of the right to compulsory arbitration in case of unsuccessful conciliation might impede effective dispute resolution, given the lack of collective agreements offering alternate avenues for arbitration and the low levels of organization and capacity of unions; and (ii) in view of a progressive implementation of the Convention, the current labour law reform will improve the effectiveness of the process of collective bargaining to reduce the frequency of disputes and facilitate dispute resolution at the workplace level through model procedures. The Committee notes that under section 141 of the draft 2013 Code, the registrar may refer a dispute for arbitration at the request of only one party, or where a dispute is protracted or is tending to endanger or has endangered the welfare of the community or part of it. In this regard, the Committee once again recalls that compulsory arbitration is acceptable under the Convention only at the request of both parties to the dispute, in essential services in the strict sense of the term, and for public servants exercising authority in the name of the State. The Committee requests the Government to indicate in its next report the measures taken to review section 141 of the draft 2013 Code, with a view to ensuring that compulsory arbitration is possible only in cases that are in line with freedom of association principles.

Furthermore, the Committee had previously requested the Government to indicate the measures taken to ensure that specific time limits are introduced in the IRC so that the mediation and conciliation procedure does not become excessively complex or slow. The Committee notes the Government’s indication that, under the current labour law reform, time limits would be imposed at each stage of the dispute resolution process to enable the effective exercise of the right to industrial action. The Committee welcomes the shortened time frame for the Registrar’s response to an employment dispute report (section 152(2) of the draft 2013 Code). It requests the Government to indicate in its next report the measures taken to review the other provisions of the draft 2013 Code relating to conciliation, mediation and arbitration proceedings, so as to introduce additional time limits as to their initiation and duration.