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

Other comments on C087

Observation

Direct Request

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Article 2 of the Convention. Right of workers and employers to establish and join organizations of their own choosing without previous authorization. The Committee notes that section 16(1) of the Trade Union Bill stipulates that a person shall not perform any act in furtherance of a trade union or employers’ organization unless that organization is registered or has its application for registration under consideration. The Committee further notes that section 16(4) of the Trade Union Bill and sections 12(5) and 17(6) of the draft Trade Union Regulations prohibit the exercise of the functions of officer or official of unregistered trade unions, employers’ organizations and federations. The Committee recalls that although the official recognition of an organization through its registration constitutes a relevant aspect of the right to organize, as it is the first measure to be taken so that organizations can fulfil their role effectively, the exercise of legitimate trade union activities should not be dependent upon registration (see the 2012 General Survey on the fundamental Conventions, paragraph 83). The Committee requests the Government to amend the above-mentioned provisions to ensure that the exercise of the legitimate activities of workers’ and employers’ organizations is not contingent upon registration.

The Committee notes that section 3(1)(d) of the draft Trade Union Regulations provides that a trade union or employers’ organization may apply for registration if no organization already registered is sufficiently representative of the whole or of a substantial proportion of the interests in respect of which the applicant seeks registration. It further notes that section 4 of the draft Trade Union Regulations stipulates that upon receiving an application for registration, the Registrar shall notify any registered trade union or employers’ organization which appears to represent the same interest as the applicant and proceed with the registration if no valid objection has been raised. The Committee recalls that trade union unity imposed directly or indirectly by law is contrary to the Convention (see 2012 General Survey, paragraph 92). The Committee requests the Government to amend the above-mentioned provisions to ensure that workers and employers have the right, if they so wish, to establish occupational organizations outside the existing structure, in conformity with the guarantees provided by Article 2 of the Convention.

Amalgamation of organizations. The Committee notes that the amalgamation procedure for trade unions, employers’ organizations and federations is regulated by section 13(3) of the draft Trade Union Regulations, which provides that an amalgamation may only occur if a simple majority of the members of each organization has voted and at least 75 per cent of the voting members vote in favour. The Committee further notes that section 13(5) of the Regulations stipulates that if the amalgamated trade union, employers’ organization or federation proposes to represent members in more than one sector, it may only be registered if the Registrar is satisfied that its constitution protects and promotes the respective sectoral interests of employees or employers. The Committee requests the Government to amend section 13 of the draft Trade Union Regulations to ensure that the setting of the requirements for amalgamation is left to the bylaws of the organizations concerned and that the discretionary authority of the Registrar is repealed.

Article 3. Right of organizations to elect their representatives. Conditions of eligibility of representatives. The Committee notes that the Trade Union Bill provides that a person not engaged or employed in the sector for which a trade union or an employers’ organization is registered may only serve as an official for that organization with the permission of the Registrar (section 19(1)), that a person who has been convicted of a criminal offence involving embezzlement or fraud shall not be an official of a trade union or employer’s organization (section 19(4)), that a person shall not hold office in any capacity in more than one trade union at the same time (section 20(1)), and that under section 7(1) of the draft Trade Union Regulations, a person shall not be an official of more than one federation of trade unions at the same time. In the view of the Committee, provisions of this type infringe the right of organizations to draw up their constitutions and to elect representatives in full freedom by preventing qualified persons (such as full-time union officers or pensioners) from being elected, or by depriving them of the experience of certain officers when they are unable to provide enough qualified persons from among their own ranks. 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 2012 General Survey, paragraph 102). The Committee also considers that section 19(4), as currently drafted, appears to allow for a broad interpretation and thus to exclude certain persons from ever being elected to trade union office. The Committee therefore requests the Government to remove the above-mentioned restrictions from the Trade Union Bill and the draft Trade Union Regulations so as to ensure that the determination of the conditions of eligibility for office is left to the autonomous decision of workers’ and employers’ organizations.

Right of organizations to organize their administration and activities and to formulate their programmes. The Committee had previously noted that the Labour Act was under review and requested the Government to amend section 104(1)(b), which allows the registrar to verify the accounts of employers’ and workers’ organizations when he “is unable to determine with certainty the absence of irregularity or fraud”, as well as sections 104(2)(b) and 104(7)(c), which allow the registrar to institute civil proceedings in order to secure payment of arrears in trade union dues. The Committee notes the Government’s indication that these sections do not appear in the Labour Bill, as they have been replaced by sections 30 and 32 of the Trade Union Bill. While welcoming the announced changes with respect to section 104 of the Labour Act, the Committee observes that section 30(b) of the Trade Union Bill stipulates that the accounts of trade unions and employers’ organizations shall be open to inspection by the Commissioner at any reasonable time, and that section 32(1) of the Trade Union Bill and section 18(2)(b) of the draft Trade Union Regulations provide that the Commissioner may, at any time, call upon their officials to render detailed accounts of their funds for any period, in the manner and containing such information as the Commissioner may require. It also observes that according to section 28 of the Trade Union Bill and section 23 of the draft Trade Union Regulations, an injunction against unauthorized or unlawful expenditures by a trade union, employers’ organization or federation may be granted by an Industrial Tribunal on application by the Commissioner. The Committee requests the Government to review the Trade Union Bill and the draft Trade Union Regulations to ensure that the Commissioner has the power to verify the accounts of trade unions and employers’ organizations only in exceptional cases where there is evidence of irregularity in the handling of finances, and that the substance and procedure of such verifications is subject to judicial review, in conformity with the Convention.

Deduction of trade union dues. The Committee takes note that sections 22 and 24 of the draft Trade Union Regulations regulate in detail the deduction and the use of trade union dues and other levies. It recalls that issues relating to membership and members’ dues should be left to the discretion of the trade union members (see 2012 General Survey, paragraph 113). The Committee requests that the Government modify the draft Trade Union Regulations so as to bring them into full conformity with the Convention in this regard.

Transfer of property. The Committee notes that pursuant to section 24 of the Trade Union Bill, an authorization of the Minister is required in order to transfer a specified property of trade unions, employers’ organizations and federations to a person other than its administrator, or for public purposes other than the use of the trade union, employers’ organization or federation and its members, which public purposes the Minister may prescribe. The Committee recalls that the freedom of organizations to organize their administration also includes the right to be able to dispose of all their fixed and moveable assets unhindered (see 2012 General Survey, paragraph 114). The Committee requests the Government to amend the above-mentioned provisions so as to ensure that workers’ and employers’ organizations are allowed to transfer their property unhindered if they so wish.

Right to strike. The Committee notes that the Trade Union Bill prohibits strikes which are not in furtherance of a trade dispute (section 57(1)(g)), as well as sympathy strikes (section 57(1)(h)). It further notes that the Labour Bill prohibits secondary industrial actions (section 175) and industrial actions which are primarily in pursuit of a political object (section 176 (1)(c). The Committee recalls that, in its view, trade unions and employers’ organizations responsible for defending socio-economic and occupational interests should be able to use, respectively, strike action or protest action to support their position in the search for solutions to problems posed by major social and economic policy trends which have a direct impact on their members (see 2012 General Survey, paragraph 124). With regard to so-called “sympathy” strikes, the Committee considers that a general prohibition of this form of strike action could lead to abuse, and that workers should be able to take such action, provided that the initial strike they are supporting is itself lawful (see 2012 General Survey, paragraphs 124 and 125). In light of the foregoing, the Committee requests the Government to modify the provisions of the Trade Union Bill and the Labour Bill relating to the exercise of the right to strike.

In its previous comments, the Committee had noted that section 140(1) of the Labour Act defines essential services as services the interruption of which would endanger the life, personal safety or health of the whole or part of the population, and that the Government considered radio and telecommunication services to be essential services. It had recalled that radio services could not be considered essential services in the strict sense of the term and requested the Government to review its list of essential services accordingly. The Committee notes the Government’s indication that the issue of essential services is provided for under section 60 of the Trade Union Bill, as well as section 27 and the Third Schedule of the draft Trade Union Regulations. The Committee observes that the Third Schedule of the draft Trade Union Regulations lists the following services as essential (in which strikes are prohibited pursuant to sections 57(1)(f) and 60(3) of the Trade Union Bill): water and electricity supply services, public hospital services, air traffic control services and civil aviation, public telecommunications services, fire services of the Government or a public institution, ports authority, ferry services, public transport services, public service cleansing and sanitation services. The Committee considers that some of the above services, notably, civil aviation services, telecommunication services in general (with the exception of telephone services), ports, ferry services, transport services, as well as cleansing and sanitation services cannot be considered essential services in the strict sense of the term. The Committee requests the Government to amend the list of essential services set out in the draft Trade Union Regulations with a view to ensuring that the ban on strikes stipulated in section 60(3) of the Trade Union Bill is limited to essential services in the strict sense of the term.

Article 4. No suspension or dissolution by administrative authority. The Committee notes that section 17(2) of the Trade Union Bill provides that the Registrar may cancel or suspend the registration of a trade union, employers’ organization or federation if he is satisfied that the organization is operating in contravention of the Bill, has failed to conduct elections in accordance with the requirements of this Bill, or is not independent. The Committee observes that while section 18 of the Trade Union Bill stipulates that a person aggrieved by a decision of the Registrar may appeal to the High Court, the Bill does not specify whether such an appeal has the effect of a stay of execution. The Committee recalls that the dissolution and suspension of trade union organizations constitute extreme forms of interference by the authorities in the activities of organizations and should therefore be accompanied by all the necessary guarantees, including a normal judicial procedure with the effect of a stay of execution (see 2012 General Survey, paragraph 162). The Committee requests the Government to amend the Trade Union Bill with a view to minimizing the Registrar’s powers regarding the cancellation and suspension of the registration of workers’ and employers’ organizations, and ensuring that if such a decision is made, it does not take effect before the end of the appeal procedure provided in section 18 of the Bill.

Article 5. The right to form federations. The Committee notes that the Trade Union Bill provides that eight or more trade unions may form a federation in the same sector (section 9(1)), and that four or more trade unions, none of which is a member of another registered federation, may form a federation in different sectors (section 10(1)(b)). It also notes that the draft Trade Union Regulations stipulate that a federation must be established at a meeting attended by the representatives of at least four trade unions in the same sector or six trade unions in different sectors (section 5(1)(e)). The Committee requests the Government to review these provisions in order to ensure that they are consistent with each other, and that the requirement of the minimum number of trade unions to form a federation is not excessively high and does not infringe the right of workers’ organizations to form federations.

The Committee requests the Government to provide information on all steps taken to review the draft legislation in light of the foregoing, in consultation with the social partners.