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The Committee takes note of the Government’s report.

The Committee notes with regret that no additional information has been provided and that despite its numerous requests, the legislation remains unchanged.

The Committee recalls that its previous comments concerned the following serious discrepancies between the national legislation and the provisions of the Convention.

Managerial and administrative staff and other exclusions from
the Industrial Relations Ordinance (IRO)

In its previous comments, the Committee had noted that persons carrying out managerial or administrative functions were excluded from the definition of the term "worker" and thus denied the right of association set out in section 3(a) of the Industrial Relations Ordinance, 1969 (IRO). The Committee notes the Government’s indication in its latest report that managerial and administrative staff come within the definition of "employer" under section 2(viii) of the IRO and in that capacity they can form their association of employers under section 3(b) of the IRO.

The Committee recalls that restrictions on the right to organize for managerial staff may be permitted in order to prevent interference in trade union activities provided that the persons concerned have the right to form their own organizations to defend their interests (see General Survey on freedom of association and collective bargaining, 1994, paragraph 87). The Committee considers however that defining such workers as employers for the purpose of forming associations does not respond to their needs to defend their interests as employees. It therefore requests that the Government indicate the measures taken or envisaged to ensure that managerial and administrative personnel may organize to defend their interests as employees and provide any available information on the number and size of associations formed by them.

The Committee also recalls that the workers of the Security Printing Press are not covered by the IRO and asks the Government to indicate the measures taken or envisaged to ensure that these workers have the right to establish and join organizations of their own choosing to defend their interests.

Restrictions regarding membership in trade unions and election of union officers

For many years, the Committee had noted that section 7A(1)(b) of the IRO prevents persons who are not current or former employees of an establishment or group of establishments during the previous year from becoming members or officers of a trade union in an establishment or group of establishments. It notes with regret that the Government does not consider that this provision needs to be amended. The Committee wishes to emphasize that under Article 2 of the Convention, all workers shall have the right to organize and that this right should not be subjected to a required period of employment.

The Committee had further noted that section 3 of Act No. 22, 1990, provided that a worker dismissed for misconduct was not entitled to become an officer of a trade union. The Committee recalls that provisions of this type infringe the organization’s right to elect representatives in full freedom by preventing qualified persons from carrying out union duties or by depriving unions of the benefit of the experience of certain officers when they are unable to provide enough qualified persons from among their own ranks. When national legislation imposes conditions of this kind on all trade union leaders, there is also a real risk of interference by the employer through the dismissal of trade union officers, which deprives them of their trade union office (see 1994 General Survey, op. cit., paragraph 117).

The Committee therefore once again requests the Government to repeal sections 3 and 7A(1)(b) so that workers may fully enjoy the right to organize and so that workers’ organizations may elect their officers freely in conformity with Article 3 of the Convention.

Restrictions on activities of public servants’ associations

In its previous comments, the Committee recalled that the Government Servants (Conduct) Rules, 1979, restricted the right of public servants to issue publications. The Committee noted that the permitted subject matters of publications by public servants were extremely limited and did not include basic trade union issues, and as such did not allow for a free flow of information, opinions and ideas. The Committee once again recalls that the measures which impose prior restraint on the subject matter of trade union publications are contrary to the right of workers’ organizations to organize their administration and activities and to formulate their programmes without interference from public authorities, and requests once again the Government to take measures to amend the Government Servants (Conduct) Rules in this respect.

Excessive external supervision of the internal affairs of trade unions

The Committee recalls that under Rule 10 of the Industrial Relation Rules 1977, the Registrar of Trade Unions has the power to enter trade union offices, inspect documents, etc., and that this authority is not subject to judicial review.

The Committee notes the Government’s statement in its latest report to the effect that the Registrar may enter the office of a registered trade union in order to see whether the laws, rules or provisions of its constitution are being implemented or not. The Government states in particular that the Registrar receives complaints from union members alleging misappropriation of union funds and many irregularities that are allegedly committed by union officers. According to the Government, the Registrar must be able to enter a trade union office with reasonable cause to see whether the complaints filed are founded on facts. The Government adds that the Registrar never supervises the activities of a trade union and that trade unions are governed by their constitutions and the laws of the country.

The Committee recalls in this respect that the right of workers’ and employers’ organizations to organize their administration without interference by the public authorities includes in particular autonomy and financial independence and the protection of the assets and property of these organizations (see 1994 General Survey, op. cit., paragraph 124). There is no violation of the Convention if such verification is limited to exceptional cases, for example in order to investigate a complaint, or if there have been allegations of embezzlement. Both the substance and the procedure of such verifications should however always be subject to review by the competent judicial authority affording every guarantee of impartiality and objectivity (ibid., paragraph 125).

The Committee therefore once again requests that the Government take the necessary measures to amend these rules so as to ensure that such broad authority of the Registrar may be subject to judicial review.

Registration requirement

The Committee recalls its previous comments regarding sections 7(2) and 10(1)(g) of the IRO which impose a minimum membership requirement of 30 per cent of the total number of workers employed in the establishment or group of establishments for initial and continued union registration.

The Committee notes once again the Government’s indication that this registration requirement was mainly adopted with an objective of reducing the mushroom growth of trade unions and unwieldy multiplicity of unions.

The Committee considers however that such a requirement severely restricts the right of workers to form organizations of their own choosing. It suggests rather that the Government give consideration to granting certain preferential status for collective bargaining purposes to the most representative trade unions as a way of reducing union fragmentation and multiplicity.

It must once again request that the Government amend these provisions so as to ensure that workers may form and join organizations of their own choosing in accordance with Article 2 of the Convention.

Right to organize and to bargain collectively in export processing zones (EPZs)

The Committee notes the information provided by the Government to the effect that the IRO and other labour laws will be implemented in EPZs from 2004 and as a result the workers in EPZs will be able to enjoy the legal rights to organize and bargain collectively.

Recalling once again that workers in EPZs should be guaranteed the same rights under the Convention as all other workers, the Committee requests that the Government transmit a copy of the draft legislation ensuring that EPZs will be covered by the IRO and other labour laws and keep it informed of any progress made in this regard.

Restrictions on the right to strike

The Committee notes with regret that no progress has been made in amending the various dispositions of the IRO concerning industrial action. The Committee recalls that its previous comments concerned the following discrepancies between the legislation and Article 3 of the Convention: (i) the necessity for three-quarters of the members of a workers’ organization to consent to a strike (section 28); (ii) the possibility of prohibiting strikes lasting more than 30 days (section 32(2)) and of prohibiting a strike at any time if it is considered prejudicial to the national interest (section 32(4)) or involves a public utility service (section 33(1)); and (iii) the nature of penalties that may be imposed in respect of participation in unlawful industrial action (sections 57 and 59), including imprisonment.

As concerns the provisions setting forth sanctions for illegal strike action, including imprisonment, the Committee notes the Government’s indication that these provisions are aimed at ensuring that no illegal activities are conducted either by workers or by employers. The Committee emphasizes however that the application of disproportionate penal sanctions does not favour the development of harmonious and stable industrial relations; if measures of imprisonment are to be imposed at all they should be justified by the seriousness of the offences committed (see 1994 General Survey, paragraph 177).

The Committee once again requests that the Government indicate the measures taken or envisaged to amend the legislation to ensure that the abovementioned sections concerning industrial action are brought into line with the provisions of the Convention, in particular as concerns the severity of the sanctions which may be imposed for illegal strike action.

The Committee once again draws the Government’s attention to the availability of the technical assistance of the ILO in respect of all the above matters.