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Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Gambia (RATIFICATION: 2000)

Other comments on C098

Observation

Direct Request

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The Committee notes the observations of the International Trade Union Confederation (ITUC) received on 1 September 2022 referring to matters under examination by the Committee.

The Committee also notes that the Government indicates that the Labour Bill and the Trade Union Bill are currently being reviewed and provides copies of the two bills.

Scope of the Convention. In its previous comments, the Committee requested the Government to provide information on the adoption of the Trade Union Bill and expressed the firm expectation that the rights afforded by the Convention would be ensured for prison officers, domestic workers and civil servants not engaged in the administration of the State, whom section 3(2) of the Labour Act excludes from its scope. The Committee takes due note of the Government’s indication that these categories of workers are not excluded from the scope of the Trade Union Bill, as they are not enumerated among the persons excluded by section 3 of the Bill.

The Committee observes however that section 2 of the Bill defines “trade union” as “an organized group of employees”, and “employee” as “a person employed for wages or a salary”, a definition that may not encompass self-employed workers and workers without employment contracts. In this regard, the Committee recalls that the Convention does not apply only to employees but more broadly to all workers, and that only the armed forces, the police and public servants engaged in the administration of the State may be excluded from the guarantees of the Convention. The Committee also notes that, according to the observations submitted by the ITUC, there has been no progress regarding the adoption of the Trade Union Bill since the Gambian Trade Union Bureau submitted its comments and recommendations on the Bill in 2017. The Committee requests the Government to take the necessary measures, in full consultation with the social partners, to ensure that the Trade Union Bill is revised and adopted shortly, with a view to guaranteeing that all workers, including prison officers, domestic workers, civil servants not engaged in the administration of the State, as well as self-employed workers and workers without employment contracts, enjoy the rights and guarantees set out in the Convention. The Committee requests the Government to provide information on any progress achieved in this regard.

Article 4. Recognition of organizations for the purposes of collective bargaining. In its previous comments, recalling that the organization of a ballot for determining representativeness should be carried out by the authorities or an independent party upon a request presented by a union, the Committee requested the Government to bring section 131 of the Labour Act, which provides that an employer may organize a secret ballot to establish a sole bargaining agent, into conformity with the Convention. The Committee notes with regret that the Government states that section 169 of the Labour Bill also allows the employer to organize such a secret ballot. The Committee requests the Government to amend the Labour Bill so as to ensure that the determination of the representative status of trade unions for purposes of collective bargaining is conducted in accordance with a procedure that offers every guarantee of impartiality, by an independent body that enjoys the confidence of the parties.

Threshold of representativity. In its previous comment, the Committee recalled that if no union in a specific negotiating unit meets the required threshold to be recognized as a sole bargaining agent, minority trade unions should be able to negotiate, jointly or separately, at least on behalf of their own members, and requested the Government to bring its legislation into conformity with the Convention. The Committee notes that the Government states that in the Trade Union Bill, a trade union will be recognized for purposes of collective bargaining if it represents a simple majority of the unionizable employees (section 34). Observing that the Bill does not contain any provisions regulating cases in which no union reaches that threshold, the Committee recalls once again that systems where a representative union that fails to secure the absolute majority may be denied the possibility of bargaining, may raise problems of compatibility with the Convention. Noting additionally that the Government only informs of two concluded collective agreements, the Committee considers that the apparently very small number of existing collective agreement in the country could appear to be related to the restrictive requirements to engage in collective bargaining which are contained in the current legislation. The Committee requests the Government to indicate the meaning of the term “simple majority” in section 34 of the Trade Union Bill, and to amend the legislation in order to ensure that if no union reaches the required threshold to be recognized as a bargaining agent, the existing unions are given the possibility to negotiate, jointly or separately, at least on behalf of their own members.

Promotion of collective bargaining in practice.The Committee had previously noted the information provided by the Government on two company-level collective agreements concluded in the private sector in 2014 and 2017. The Committee notes that the Government limits itself to referring again to these two agreements and stating that it will take steps to sensitize trade unions to maximise the use and benefits of collective bargaining. The Committee reiterates its request that the Government provide information on the concrete measures taken to promote collective bargaining in all sectors covered by the Convention, as well as on the number of collective agreements concluded and in force, the sectors concerned and the number of workers covered by these agreements. The Committee further requests the Government to provide information on the actions taken to promote collective bargaining in the different sectors of the economy.

Request for technical assistance. The Committee notes the Government’s request for technical assistance from the Office to ensure that the Labour Bill and the Trade Union Bill include the ILO’s recommendations and are aligned with the Convention. The Committee trusts that the technical assistance requested by the Government will be provided as soon as possible with a view to ensuring that, after a consultation with the social partners, the above-mentioned bills will give full effect to the provisions of the Convention. The Committee requests the Government to provide information on any evolution in this regard, as well as copies of the laws once adopted.

The Committee is raising other matters in a request addressed directly to the Government.