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The Committee notes the comments submitted by the International Trade Union Confederation (ITUC) in a communication dated 24 August 2010. The Committee also notes the Government’s reply to the allegation made by the ITUC in a communication dated 26 August 2009 that collective agreements must be submitted to the Industrial Court for approval and may be refused registration if they do not conform to the Government’s economic policy. The Government indicates in its report that section 71(1) of the Employment and Labour Relations Act (ELRA) provides that a collective agreement shall be in writing, signed by the parties and binding on the last signatures, and that the parties are not bound to submit it for approval to a court.

Furthermore, the Committee notes the Government’s replies to the points raised by the Committee in its previous observation concerning the 2003 Public Service (Negotiating Machinery) Act, in particular:

(i)    As regards the scope of application of the Act, the Government indicates in its report that the Act does not cover all civil servants, but covers teachers, servants of the health sector, and servants of the local and central Government and excludes employees of the prison service and national service. The Committee recalls that all public servants, with the sole possible exception of those engaged in the administration of the State, in the armed forces and the police, should enjoy the right to collective bargaining with respect to salaries and other conditions of employment (General Survey of 1994 on freedom of association and collective bargaining, paragraphs 199 and 262). The Committee requests the Government to provide information in its next report on the types of workers included in the national service and to take the necessary measures to ensure to prison staff the rights enshrined in the Convention.

(ii)   As regards the protection against acts of anti-union discrimination and interference, the Government indicates in its report that section 29 of the Act prohibits acts of discrimination against any public servant who takes part in a strike or lock-out, or is a leader or activist of a trade union which inspired or incited public servants to take part in a strike or lock-out. The Committee recalls that Article 1 of the Convention guarantees workers adequate protection against acts of anti-union discrimination in taking up employment and in the course of employment including at the time of termination, and covers all measures of anti-union discrimination (dismissals, transfers, demotions and any other prejudicial acts) – i.e. not only acts of anti-union discrimination related to strikes and lock-outs – and that legal provisions prohibiting acts of anti-union discrimination shall be accompanied by effective and rapid procedures to ensure their application in practice. Furthermore, the Committee recalls that legislation should explicitly prohibit all acts of interference and make express provision for rapid appeals procedures, coupled with effective and sufficiently dissuasive sanctions against such acts, in order to ensure the application in practice of Article 2 (General Survey, op. cit., paragraphs 214, 223 and 232). The Committee requests the Government to provide information in its next report on the measures taken or contemplated to include in the legislation adequate protection against all acts of anti-union discrimination and acts of interference, as well as sufficiently dissuasive sanctions against such acts, in accordance with the abovementioned principles.

(iii)  As regards the subjects that may be negotiated under the Act, the Government indicates in its report that these relate to the terms and conditions of employment, including wages.

(iv)  As regards the duration of the collective agreements provided for in the Act, the Government indicates in its report that section 17(5) of the Act provides that every award made shall be final and binding upon the Government and the public servants to whom the agreement relates for a period of 12 months beginning on the date on which the award was made.

(v)   As regards the cases in which compulsory arbitration may be imposed under the Act, the Government indicates in its report that the functions of the Service Joint Staff Council include to negotiate on matters relating to the terms and conditions of service with respect to the public servants generally or to the service scheme to which that Service Joint Council belongs; that pursuant to section 8(1), all decisions on any matter which is subject of consideration and determination by the Service Joint Staff Council shall be referred to the Public Service Joint Staff Council for endorsement; that pursuant to sections 17–19, an agreement reached by the Public Service Joint Staff Council or any matter referred to it by the Service Joint Staff Council for approval in relation to any dispute regarding terms and conditions of service of public servants shall be forwarded to the minister; that the matters forwarded to the minister are for award making and in case upon finding that the Public Service Joint Staff Council was unable to reach an agreement, the Minister may refer the dispute to the court. The Committee recalls that compulsory arbitration in the framework of collective bargaining is only acceptable if it is at the request of both parties involved, or in the case of the public service, or in essential services in the strict sense of the term, namely those services whose interruption would endanger the life, personal safety or health of the whole or part of the population. In light of the above, the Committee requests the Government to take the necessary measures to amend sections 17 and 18 of the Public Service (Negotiating Machinery) Act, so as to ensure their full conformity with the abovementioned principles, and to provide information on any developments in this respect in its next report.

(vi)  As regards to the question whether all individual public services have the right to conclude collective agreements, the Government indicates in its report that section 4 of the Act provides that a Service Joint Staff Council shall be established for each of the following services: civil service, teachers service, local government, health service and fire and rescue services and immigration service; that according to section 6, the functions of the Service Joint Staff Council shall be, inter alia, to negotiate on matters relating to the terms and conditions of service with respect to the public servants generally or to the Service Scheme to which that Council belongs.

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Article 4 of the Convention. Trade union recognition for purposes of collective bargaining. In its previous observation, the Committee had requested the Government to amend section 57(2) of the Labour Relations Act of 2005 (LRA), which provides that in order to be designated as representative – and thus be accorded exclusive bargaining agent status – the union concerned must be registered and represent “the majority of employees at the appropriate bargaining level”, which corresponds in fact to 50 per cent of the members of a bargaining unit. While noting once again the Government’s indication that the Committee’s comments have been noted, the Committee recalls that such a system denies the possibility of bargaining to a majority union which fails to secure this absolute majority (General Survey, op. cit., paragraph 241). The Committee therefore requests the Government to take the necessary measures, in the very near future, to amend section 57(2) of the LRA so that if no union covers more than 50 per cent of the workers, the minority unions in the bargaining unit are not denied collective bargaining rights, at least on behalf of their members, and to provide information thereon in its next report. The Committee also requests the Government to indicate whether, in practice, minority unions enjoy collective bargaining rights in cases where there is no union representing 50 per cent of the workers concerned. If this is the case, the Committee requests the Government to provide relevant examples and statistics.

Furthermore, the Committee had requested the Government to provide full information on the procedures and criteria by which the disputes resolution authority, in cases brought before it under section 57(4) of the LRA, determines representative trade union status when there is an objection from another trade union or when the employer does not recognize the trade union. Noting the Government’s statement that the rules and regulations for the implementation of the Act are not yet finalized, the Committee requests the Government to take the necessary measures, in the very near future, to ensure that the rules and regulations will provide for objective procedures and criteria for the determination of representative trade union status and to provide a copy of the said rules and regulations once finalized, as well as information thereon in its next report.

Article 6. Public servants. The Committee had previously requested the Government to amend section 54(2)(b) of the LRA, so as to guarantee to managerial employees the right to bargain collectively, and to indicate the categories of employees excluded from the right to bargain collectively by the minister under section 54(2)(c) of the LRA. The Committee recalls that all public servants, with the sole possible exception of those engaged in the administration of the State, the armed forces and the police, should enjoy the right to collective bargaining with respect to salaries and other conditions of employment. Noting once again the Government’s statement that the rules and regulations referred to above will address this matter, the Committee requests the Government to take the necessary measures, in the very near future, to amend section 54(2)(b) of the LRA so as to guarantee to managerial employees the right to bargain collectively, and to indicate the categories of employees excluded from the right to bargain collectively under section 54(2)(c).