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The Committee notes that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

The Committee had noted that according to the Government, which stated that the fifth draft Industrial Relations Bill, which incorporates technical inputs provided by the ILO, has been placed before the National Tripartite Consultative Council for its endorsement and referral to the National Executive Council before submission to Parliament.

The Committee had noted that the several sections of the Industrial Organizations Act [35(2)(b) (concerning qualifications for trade union membership); 22(1)(g) (concerning refusal of registration to an industrial organization); 55 (concerning cancellation of an industrial organization’s registration); 39(1)(b) and (d) (concerning qualifications for serving as an officer of an industrial organization); 39(4) (concerning the removal of trade union officers); and 5(1), 40, 58 and 60(1)(b) (all granting excessive powers to the registrar to investigate union accounts and demand information)], commented upon in its previous direct request will be repealed by the passage of the fifth draft bill. The Committee had noted that section 257 of the fifth draft Bill repeals the Industrial Organizations Act, the Industrial Relations Bill, the Industrial Relations (Amendment) Act of 1992, the Industrial Relations (Amendment) Act of 1998, the Public Service Conciliation and Arbitration Act, and the Teaching Service Conciliation and Arbitration Act. The Committee therefore requests the Government to submit a copy of the fifth draft Industrial Relations Bill upon its adoption and trusts that, upon adoption, the fifth draft Bill will give full expression to the complete provisions of the Convention, including the comments of the Committee.

Article 2 of the Convention. Right of workers and employers without distinction whatsoever to establish and join organizations of their own choosing and without previous authorization. In its previous comments, the Committee noted that section 98(2)(b) of the third draft of the Industrial Relations Bill provides that a person who “has been convicted of a criminal offense justifying imprisonment by a court of law” may not become a union member. The Committee had noted the Government’s statement that the Bill is still going through the review process. In this regard, the Committee recalls that conviction for an act, the nature of which is not such as to call into question the integrity of the person concerned and is not such as to be prejudicial to the performance of trade union duties should not constitute grounds for disqualification from trade union office (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 120). The Committee recalls that denying union membership to persons convicted of a criminal offence is incompatible with Article 2 of the Convention. The Committee once again expresses the hope that the fifth draft Industrial Relations Bill will take into account the above-stated principle.

Trade union registration. The Committee previously noted that subsection (3) of section 118 of the third draft Industrial Relations Bill allows for the cancellation of an organization’s registration as a penalty for prohibited payments by individual officers. The Committee had noted the Government’s indication that section 199 of the fifth draft Bill no longer allows cancellation or deregistration as a penalty for prohibited payments, but rather allows the Industrial Relations Commission to, on its own motion, hold trade union officers personally liable for payments by the organization that are applied to a court-ordered fine or penalty imposed on any individual. The Committee considers that trade unions should be free to decide whether to pay the fines assessed to their officers. In these circumstances, the Committee requests the Government to take the necessary measures to abrogate section 199 of the fifth draft Industrial Relations Bill.

Article 3. Right of workers’ and employers’ organizations to draw up their constitutions and rules, to elect their representatives in full freedom and to organize their administration and activities. The Committee recalls that in its previous comments, it requested the Government to amend sections 103, 121 and 123 of the third draft Industrial Relations Bill to ensure that the supervision of an organization’s finances is limited to the obligation to submit periodic financial reports or on the basis of a complaint from a certain percentage of the workers. The Committee recalls that it additionally requested the Government to amend sections 22 and 23(1) of the Industrial Relations Act which presently grant excessive powers to the registrar to investigate union accounts and demand information. The Committee notes the Government’s statement that in the fifth draft Bill it has removed its legal authority to investigate the accounts of industrial organizations. The Committee had noted the indication by the Government that sections 103, 121 and 123 have been amended and are now governed by article 4 of the fifth draft Bill. The Committee expresses the hope that article 4 of the fifth draft Bill ensures that the supervision of an organization’s finances is limited to the obligation to submit periodic financial reports or on the basis of a complaint from a certain percentage of the workers.

The right of organizations freely to organize their activities and to formulate their programmes. The Committee previously noted that sections 150, 151 and 152 of the third draft Industrial Relations Bill, when read in concert, allow for instances of compulsory arbitration. The Committee also previously requested the Government amend section 150 of the draft Bill in order to ensure that conciliation proceedings are concluded within a reasonable period of time. The Committee had noted the Government’s indication that it has amended the draft Bill to provide several steps of mediation prior to the referral of the case to arbitration before the newly created Industrial Relations Commission. The Committee requests the Government to take the necessary measures to amend sections 150, 151 and 152 to ensure that compulsory arbitration is at the request of both parties involved in a dispute, or if the strike in question may be restricted, even banned, i.e. in the case of disputes in the public service involving public servants exercising authority in the name of the State 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 addition, the Committee requests the Government to indicate the established period of time for mediation provided for in the fifth draft Bill.

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The Committee notes that according to the Government, which states that the fifth draft Industrial Relations Bill, which incorporates technical inputs provided by the ILO, has been placed before the National Tripartite Consultative Council for its endorsement and referral to the National Executive Council before submission to Parliament.

The Committee notes that the several sections of the Industrial Organizations Act [35(2)(b) (concerning qualifications for trade union membership); 22(1)(g) (concerning refusal of registration to an industrial organization); 55 (concerning cancellation of an industrial organization’s registration); 39(1)(b) and (d) (concerning qualifications for serving as an officer of an industrial organization); 39(4) (concerning the removal of trade union officers); and 5(1), 40, 58 and 60(1)(b) (all granting excessive powers to the registrar to investigate union accounts and demand information)], commented upon in its previous direct request will be repealed by the passage of the fifth draft bill. The Committee notes that section 257 of the fifth draft Bill repeals the Industrial Organizations Act, the Industrial Relations Bill, the Industrial Relations (Amendment) Act of 1992, the Industrial Relations (Amendment) Act of 1998, the Public Service Conciliation and Arbitration Act, and the Teaching Service Conciliation and Arbitration Act. The Committee therefore requests the Government to submit a copy of the fifth draft Industrial Relations Bill upon its adoption and trusts that, upon adoption, the fifth draft Bill will give full expression to the complete provisions of the Convention, including the comments of the Committee.

Article 2 of the Convention. Right of workers and employers without distinction whatsoever to establish and join organizations of their own choosing and without previous authorization. In its previous comments, the Committee noted that section 98(2)(b) of the third draft of the Industrial Relations Bill provides that a person who “has been convicted of a criminal offense justifying imprisonment by a court of law” may not become a union member. The Committee notes the Government’s statement that the Bill is still going through the review process. In this regard, the Committee recalls that conviction for an act, the nature of which is not such as to call into question the integrity of the person concerned and is not such as to be prejudicial to the performance of trade union duties should not constitute grounds for disqualification from trade union office (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 120). The Committee recalls that denying union membership to persons convicted of a criminal offence is incompatible with Article 2 of the Convention. The Committee once again expresses the hope that the fifth draft Industrial Relations Bill will take into account the above stated principle.

Trade union registration. The Committee previously noted that subsection (3) of section 118 of the third draft Industrial Relations Bill allows for the cancellation of an organization’s registration as a penalty for prohibited payments by individual officers. The Committee notes the Government’s indication that section 199 of the fifth draft Bill no longer allows cancellation or deregistration as a penalty for prohibited payments, but rather allows the Industrial Relations Commission to, on its own motion, hold trade union officers personally liable for payments by the organization that are applied to a court-ordered fine or penalty imposed on any individual. The Committee considers that trade unions should be free to decide whether to pay the fines assessed to their officers. In these circumstances, the Committee requests the Government to take the necessary measures to abrogate section 199 of the fifth draft Industrial Relations Bill.

The Committee previously requested the Government to take the necessary measures to amend subsections (g) and (h) of section 87 of the third draft Bill to ensure that organizations would not be dissolved for unauthorized expenditures or for failing to maintain their accounts in accordance with the Bill, except when such actions constitute serious criminal offences. The Committee notes the Government’s response that section 169 of the fifth draft Bill now governs cancellation of industrial organizations and disallows cancellation or deregistration for unauthorized expenditures or for failing to maintain accounts in accordance with the Bill.

Article 3. Right of workers’ and employers’ organizations to draw up their constitutions and rules, to elect their representatives in full freedom and to organize their administration and activities. The Committee recalls that in its previous comments, it requested the Government to amend sections 103, 121 and 123 of the third draft Industrial Relations Bill to ensure that the supervision of an organization’s finances is limited to the obligation to submit periodic financial reports or on the basis of a complaint from a certain percentage of the workers. The Committee recalls that it additionally requested the Government to amend sections 22 and 23(1) of the Industrial Relations Act which presently grant excessive powers to the registrar to investigate union accounts and demand information. The Committee notes the Government’s statement that in the fifth draft Bill it has removed its legal authority to investigate the accounts of industrial organizations. The Committee also notes the indication by the Government that sections 103, 121 and 123 have been amended and are now governed by article 4 of the fifth draft Bill. The Committee expresses the hope that article 4 of the fifth draft Bill ensures that the supervision of an organization’s finances is limited to the obligation to submit periodic financial reports or on the basis of a complaint from a certain percentage of the workers.

The right of organizations freely to organize their activities and to formulate their programmes. The Committee previously noted that sections 150, 151 and 152 of the third draft Industrial Relations Bill, when read in concert, allow for instances of compulsory arbitration. The Committee also previously requested the Government amend section 150 of the draft Bill in order to ensure that conciliation proceedings are concluded within a reasonable period of time. The Committee notes the Government’s indication that it has amended the draft Bill to provide several steps of mediation prior to the referral of the case to arbitration before the newly created Industrial Relations Commission. The Committee requests the Government to take the necessary measures to amend sections 150, 151 and 152 to ensure that compulsory arbitration is at the request of both parties involved in a dispute, or if the strike in question may be restricted, even banned, i.e. in the case of disputes in the public service involving public servants exercising authority in the name of the State 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 addition, the Committee requests the Government to indicate the established period of time for mediation provided for in the fifth draft Bill.

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The Committee notes that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

The Committee had noted that the third draft Industrial Relations Bill, which was last revised on 14 August 2006, following widespread consultations with the social partners, and incorporates technical inputs provided by the ILO. The said Bill replaces the draft Industrial Relations Act of 2003 as part of an ongoing effort, commenced in 2003, to review and consolidate the labour legislation; to this end, section 257 of the current Bill repeals the Industrial Organizations Act, the Industrial Relations Act, the Industrial Relations (Amendment) Act of 1992, the Industrial Relations (Amendment) Act of 1998, the Public Service Conciliation and Arbitration Act, and the Teaching Service Conciliation and Arbitration Act.

Article 2 of the Convention. Right of workers and employers without distinction whatsoever to establish and join organizations of their own choosing and without previous authorization. The Committee had previously requested the Government to repeal section 35(2)(b) of the Industrial Organizations Act and delete section 98(2)(b) of the draft Industrial Relations Act, both of which provided that a person who is “of general bad character is not qualified for admission as a member of an industrial organization”. In this regard, the Committee had noted the Government’s indication that it has repealed section 35(2)(b) of the Industrial Organizations Act and deleted section 98(2)(b) of the draft Industrial Relations Act. However, the Committee notes that section 98(2)(b) of the third draft Industrial Relations Bill, as amended, now provides that a person who “has been convicted of a criminal offence justifying imprisonment by a court of law” may not become a union member. The Committee considers, in this respect, that conviction for an act the nature of which is not such as to call into question the integrity of the person concerned and is not such as to be prejudicial to the performance of trade union duties should not constitute grounds for disqualification from trade union office (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 120). Denying union membership to persons convicted of a criminal offence is incompatible with Article 2 of the Convention. Noting the Government’s indication that this section would be subject to further review, the Committee expresses the hope that section 98(2)(b) of the third draft Industrial Relations Bill would be amended in accordance with the above-stated principle. The Committee also requests the Government to provide it with a copy of the instrument or order repealing section 35(2)(b) of the Industrial Relations Act.

Trade union registration. In its previous comments, the Committee had requested the Government to repeal section 22(1)(g) of the Industrial Organizations Act and delete section 86(1)(g) of the draft Industrial Relations Act, both of which allowed the registrar to refuse to register an organization when “some other industrial organization, whether registered or the subject of an application for registration, is sufficiently representative of the whole or a substantial proportion of the interests in respect of which the applicants seek registration of an industrial organization”. In this respect, the Committee had noted with satisfaction the Government’s statement that it had repealed section 22(1)(g) of the Industrial Organizations Act. The Committee noted, however, that section 86(1)(g) of the 2003 draft legislation has been reproduced in the third draft Industrial Relations Bill of 2005 (also as section 86(1)(g)). It further noted the Government’s indication that the National Tripartite Consultative Council (NTCC) would consider further amendments and changes to the draft bill – including the possible deletion of section 86(1)(g) – in early 2007. In these circumstances, the Committee trusts that the NTCC has taken into account its earlier request that section 86(1)(g) be deleted and requests the Government to transmit a copy of the order repealing section 22(1)(g) of the Industrial Organizations Act.

Previously, the Committee had requested the Government to amend section 55 of the Industrial Organizations Act and delete section 118 of the draft Industrial Relations Act, both of which allow for the cancellation of an organization’s registration as a penalty for prohibited payments. The Committee notes that section 118 of the third draft Industrial Relations Bill, which forbids the use of an industrial organization’s funds in payment of a fine or penalty imposed by a court on any other person, no longer provides for the cancellation of an organization’s registration as a penalty for breaching the above-noted prohibition. Subsection (3) of section 118 does provide, however, that the National Court may order that the office bearers of an organization be held personally liable for any breach of that section. The Committee had noted the Government’s statement that through the consultation and review process section 118 has been highlighted for modification, as opposed to outright deletion. The Government indicated that subsection (3) is the outcome of the firm conviction of all relevant stakeholders that most union funds are open to gross misuse and mismanagement; the Government and the employers consider, furthermore, that the above-noted provision is necessary for purposes of accountability and good governance, and does not jeopardize the operation and rights of industrial organizations. Noting that section 118 would be reconsidered in the next round of consultations, in preparation for the final draft of the Industrial Relations Bill, the Committee expresses the hope that subsection (3), if retained, would be amended so as to limit the personal liability of union office bearers to instances of individual abuse of funds. As regards section 55 of the Industrial Organizations Act, the Committee reiterates its hope that this provision would be either amended or repealed, in the course of the ongoing consolidation of the labour legislation, so as to remove cancellation of an organization’s registration as a penalty for prohibited payments made by officers individually.

The Committee further notes that section 87 of the third draft Industrial Relations Bill empowers the registrar to cancel an industrial organization’s registration on a number of grounds, including instances where the funds of an industrial organization have been or are being expended on an object not authorized by the Bill (subsection 87(g)), and where the accounts of an industrial organization are not being kept in accordance with the Bill (subsection 87(h)). The Committee considers, as it had with respect to section 55 of the Industrial Organizations Act, that such an extreme penalty as cancellation of an organization’s registration in the cases cited above violates the right of workers to form and join organizations of their own choosing and recalls that only in case of serious criminal actions and repeated violations could cancellation be envisaged. It accordingly requests the Government to amend subsections (g) and (h) of section 87, so as to ensure that organizations would not be dissolved for unauthorized expenditures or for failing to maintain accounts in accordance with the Bill, except when such actions constitute serious criminal offences.

Article 3. Right of workers’ and employers’ organizations to draw up their constitutions and rules, to elect their representatives in full freedom and to organize their administration and activities. In previous comments the Committee had requested the Government to amend sections 39(1)(b) and (d) of the Industrial Organizations Act, as well as sections 102(1)(b) and (d) of the draft Industrial Relations Act, which prevent a person who is not engaged in the industry or occupation with which the organization is directly concerned and who is not a member of the organization, respectively, from being an officer of that organization unless the registrar in his discretion so permits. In this connection, the Committee notes that section 102(1)(d) of the Bill permits workers who have already worked in the sector concerned to be an officer of a union, even if he or she does not belong to that organization. Further noting the Government’s indication that sections 39(1)(b) and (d) of the Industrial Organizations Act had been amended, the Committee requests the Government to provide copies of these amendments in its next report.

The Committee had previously requested the Government to repeal section 39(4) of the Industrial Organizations Act and delete section 102(5) of the draft Industrial Relations Act, both of which allow the registrar to remove from office any union secretary or treasurer who, in his opinion, is not capable of performing his or her duties, in order to ensure that public authorities refrain from any interference in the internal administration of industrial organizations. In this regard the Committee notes that section 102(5) has been deleted from the third draft Industrial Relations Bill. Further noting the Government’s statement that section 39(4) has been repealed, the Committee asks the Government to provide copies of the instruments repealing the provisions noted above in its next report.

The Committee had previously requested the Government to amend sections 5(1), 40, 58 and 60(1)(b) of the Industrial Organizations Act, sections 22 and 23(1) of the Industrial Relations Act, and delete sections 103, 121 and 123 of the draft Industrial Relations Act, all of which grant excessive powers to the registrar to investigate union accounts and demand information. In this connection, the Committee had noted the Government’s indication that, although it has taken note of the Committee’s comments respecting these provisions, it considers the said provisions necessary for the proper governance of membership fees, which must be utilized for the benefit of the members. The Committee further notes that section 103 of the previous draft Bill is substantially similar to section 103 of the third draft Industrial Relations Bill: whereas section 103 of the draft Industrial Relations Act empowered the registrar to demand such information of an organization as it deemed necessary to determine whether the said organization was complying with its accounting and financial obligations, section 103 of the third draft Industrial Relations Bill now provides that the registrar may require an organization to submit such information as may be reasonably necessary to assist the registrar in determining whether the said organization is complying with its accounting and financial obligations. Though less broad than under the previous draft legislation, the Committee considers nevertheless that the registrar’s power to demand information under section 103 of the third draft Industrial Relations Bill still amounts to interference in an industrial organization’s administration. Noting further that sections 121 and 123 of the previous draft legislation have been retained in the present draft Bill, the Committee – as it had with respect to the previous draft Industrial Relations Act – requests the Government to amend sections 103, 121 and 123 of the third draft Industrial Relations Bill so as to ensure that the supervision of an organization’s finances is limited to the obligation to submit periodic financial reports, or on the basis of a complaint from a certain percentage of workers. Additionally, the Committee once again requests the Government to amend sections 5(1), 40, 58 and 60(1)(b) of the Industrial Organizations Act, as well as sections 22 and 23(1) of the Industrial Relations Act, and to inform it of the progress made in this regard in its next report.

The right to strike. The Committee had previously noted that the compulsory arbitration procedure provided for in section 30 of the Industrial Relations Act was not compatible with the Convention, and had requested the Government to provide more information on its use in practice. In this connection the Committee had noted the Government’s statement that dispute settlement procedures are now provided for in sections 145–154 of the third draft Industrial Relations Bill. As regards these provisions, the Committee notes that section 151(1) provides that, where a conciliation proceeding is regarded as completed under section 150(b), the commissioner responsible for the proceeding shall not, where the commissioner has exercised conciliation powers, proceed to exercise arbitration powers in relation to the dispute unless all parties to the dispute consent to the commissioner doing so. Section 152(1) of the draft Bill, however, states that where a conciliation proceeding under section 150(b) is regarded as having been completed, the commissioner responsible for the proceeding shall commence to arbitrate the matters in dispute between the parties, unless precluded from exercising arbitration powers. The Committee considers that these provisions, read in concert, would still appear to allow for instances of compulsory arbitration – in cases, for instance, where the commissioner has not exercised conciliation powers and would therefore not be prohibited from initiating arbitration proceedings. In these circumstances, and further noting the Government’s indication that the sections concerning dispute settlement in the third draft Industrial Relations Bill would have been subject to further deliberation at the NTCC meeting in 2007, following which amendments would be drafted by an interim national consultant, the Committee expresses the hope that sections 150 and 151 of the third draft Industrial Relations Bill would be amended so as to clearly prohibit the submission of industrial disputes to compulsory arbitration, with the exception of disputes concerning public servants exercising authority in the name of the State and disputes in essential services in the strict sense of the term. Further noting that no time frame for conciliation proceedings is provided for under section 150, the Committee recalls that negotiation machinery should not be so slow or complex that a lawful strike becomes impossible or loses its effectiveness (see General Survey, op. cit., paragraph 171). Accordingly, the Committee requests the Government to take the necessary measures to amend section 150 of the third draft Industrial Relations Bill so as to ensure that conciliation proceedings are concluded within a reasonable period of time.

The Committee requests the Government to inform it of the outcome of the NTCC’s deliberations, which were held earlier this year for the purpose of formulating further modifications to the third draft Industrial Relations Bill, and expresses the hope that its comments would be fully taken into account in the course of finalizing the amendments to the draft legislation. It also requests the Government to transmit a copy of the new law once it is adopted.

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The Committee takes note of the information contained in the Government’s report. It notes in particular the third draft Industrial Relations Bill, which was last revised on 14 August 2006, following widespread consultations with the social partners, and incorporates technical inputs provided by the ILO. The said Bill replaces the draft Industrial Relations Act of 2003 as part of an ongoing effort, commenced in 2003, to review and consolidate the labour legislation; to this end, section 257 of the current Bill repeals the Industrial Organizations Act, the Industrial Relations Act, the Industrial Relations (Amendment) Act of 1992, the Industrial Relations (Amendment) Act of 1998, the Public Service Conciliation and Arbitration Act, and the Teaching Service Conciliation and Arbitration Act.

Article 2 of the Convention. Right of workers and employers without distinction whatsoever to establish and join organizations of their own choosing and without previous authorization. The Committee had previously requested the Government to repeal section 35(2)(b) of the Industrial Organizations Act and delete section 98(2)(b) of the draft Industrial Relations Act, both of which provided that a person who is “of general bad character is not qualified for admission as a member of an industrial organization”. In this regard, the Committee notes the Government’s indication that it has repealed section 35(2)(b) of the Industrial Organizations Act and deleted section 98(2)(b) of the draft Industrial Relations Act. However, the Committee notes that section 98(2)(b) of the third draft Industrial Relations Bill, as amended, now provides that a person who “has been convicted of a criminal offence justifying imprisonment by a court of law” may not become a union member. The Committee considers, in this respect, that conviction for an act the nature of which is not such as to call into question the integrity of the person concerned and is not such as to be prejudicial to the performance of trade union duties should not constitute grounds for disqualification from trade union office (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 120). Denying union membership to persons convicted of a criminal offence is incompatible with Article 2 of the Convention. Noting the Government’s indication that this section would be subject to further review, the Committee expresses the hope that section 98(2)(b) of the third draft Industrial Relations Bill would be amended in accordance with the above-stated principle. The Committee also requests the Government to provide it with a copy of the instrument or order repealing section 35(2)(b) of the Industrial Relations Act.

Trade union registration. In its previous comments, the Committee had requested the Government to repeal section 22(1)(g) of the Industrial Organizations Act and delete section 86(1)(g) of the draft Industrial Relations Act, both of which allowed the registrar to refuse to register an organization when “some other industrial organization, whether registered or the subject of an application for registration, is sufficiently representative of the whole or a substantial proportion of the interests in respect of which the applicants seek registration of an industrial organization”. In this respect, the Committee notes with satisfaction the Government’s statement that it had repealed section 22(1)(g) of the Industrial Organizations Act. The Committee notes, however, that section 86(1)(g) of the 2003 draft legislation has been reproduced in the third draft Industrial Relations Bill of 2005 (also as section 86(1)(g)). It further notes the Government’s indication that the National Tripartite Consultative Council (NTCC) would consider further amendments and changes to the draft bill – including the possible deletion of section 86(1)(g) – in early 2007. In these circumstances, the Committee trusts that the NTCC has taken into account its earlier request that section 86(1)(g) be deleted and requests the Government to transmit a copy of the order repealing section 22(1)(g) of the Industrial Organizations Act.

Previously, the Committee had requested the Government to amend section 55 of the Industrial Organizations Act and delete section 118 of the draft Industrial Relations Act, both of which allow for the cancellation of an organization’s registration as a penalty for prohibited payments. The Committee notes that section 118 of the third draft Industrial Relations Bill, which forbids the use of an industrial organization’s funds in payment of a fine or penalty imposed by a court on any other person, no longer provides for the cancellation of an organization’s registration as a penalty for breaching the above-noted prohibition. Subsection (3) of section 118 does provide, however, that the National Court may order that the office bearers of an organization be held personally liable for any breach of that section. The Committee notes the Government’s statement that through the consultation and review process section 118 has been highlighted for modification, as opposed to outright deletion. The Government adds that subsection (3) is the outcome of the firm conviction of all relevant stakeholders that most union funds are open to gross misuse and mismanagement; the Government and the employers consider, furthermore, that the above-noted provision is necessary for purposes of accountability and good governance, and does not jeopardize the operation and rights of industrial organizations. Noting that section 118 would be reconsidered in the next round of consultations, in preparation for the final draft of the Industrial Relations Bill, the Committee expresses the hope that subsection (3), if retained, would be amended so as to limit the personal liability of union office bearers to instances of individual abuse of funds. As regards section 55 of the Industrial Organizations Act, the Committee reiterates its hope that this provision would be either amended or repealed, in the course of the ongoing consolidation of the labour legislation, so as to remove cancellation of an organization’s registration as a penalty for prohibited payments made by officers individually.

The Committee further notes that section 87 of the third draft Industrial Relations Bill empowers the registrar to cancel an industrial organization’s registration on a number of grounds, including instances where the funds of an industrial organization have been or are being expended on an object not authorized by the Bill (subsection 87(g)), and where the accounts of an industrial organization are not being kept in accordance with the Bill (subsection 87(h)). The Committee considers, as it had with respect to section 55 of the Industrial Organizations Act, that such an extreme penalty as cancellation of an organization’s registration in the cases cited above violates the right of workers to form and join organizations of their own choosing and recalls that only in case of serious criminal actions and repeated violations could cancellation be envisaged. It accordingly requests the Government to amend subsections (g) and (h) of section 87, so as to ensure that organizations would not be dissolved for unauthorized expenditures or for failing to maintain accounts in accordance with the Bill, except when such actions constitute serious criminal offences.

Article 3. Right of workers’ and employers’ organizations to draw up their constitutions and rules, to elect their representatives in full freedom and to organize their administration and activities. In previous comments the Committee had requested the Government to amend sections 39(1)(b) and (d) of the Industrial Organizations Act, as well as sections 102(1)(b) and (d) of the draft Industrial Relations Act, which prevent a person who is not engaged in the industry or occupation with which the organization is directly concerned and who is not a member of the organization, respectively, from being an officer of that organization unless the registrar in his discretion so permits. In this connection, the Committee notes that section 102(1)(d) of the Bill permits workers who have already worked in the sector concerned to be an officer of a union, even if he or she does not belong to that organization. Further noting the Government’s indication that sections 39(1)(b) and (d) of the Industrial Organizations Act had been amended, the Committee requests the Government to provide copies of these amendments in its next report.

The Committee had previously requested the Government to repeal section 39(4) of the Industrial Organizations Act and delete section 102(5) of the draft Industrial Relations Act, both of which allow the registrar to remove from office any union secretary or treasurer who, in his opinion, is not capable of performing his or her duties, in order to ensure that public authorities refrain from any interference in the internal administration of industrial organizations. In this regard the Committee notes that section 102(5) has been deleted from the third draft Industrial Relations Bill. Further noting the Government’s statement that section 39(4) has been repealed, the Committee asks the Government to provide copies of the instruments repealing the provisions noted above in its next report.

The Committee had previously requested the Government to amend sections 5(1), 40, 58 and 60(1)(b) of the Industrial Organizations Act, sections 22 and 23(1) of the Industrial Relations Act, and delete sections 103, 121 and 123 of the draft Industrial Relations Act, all of which grant excessive powers to the registrar to investigate union accounts and demand information. In this connection, the Committee notes the Government’s indication that, although it has taken note of the Committee’s comments respecting these provisions, it considers the said provisions necessary for the proper governance of membership fees, which must be utilized for the benefit of the members. The Committee further notes that section 103 of the previous draft Bill is substantially similar to section 103 of the third draft Industrial Relations Bill: whereas section 103 of the draft Industrial Relations Act empowered the registrar to demand such information of an organization as it deemed necessary to determine whether the said organization was complying with its accounting and financial obligations, section 103 of the third draft Industrial Relations Bill now provides that the registrar may require an organization to submit such information as may be reasonably necessary to assist the registrar in determining whether the said organization is complying with its accounting and financial obligations. Though less broad than under the previous draft legislation, the Committee considers nevertheless that the registrar’s power to demand information under section 103 of the third draft Industrial Relations Bill still amounts to interference in an industrial organization’s administration. Noting further that sections 121 and 123 of the previous draft legislation have been retained in the present draft Bill, the Committee – as it had with respect to the previous draft Industrial Relations Act – requests the Government to amend sections 103, 121 and 123 of the third draft Industrial Relations Bill so as to ensure that the supervision of an organization’s finances is limited to the obligation to submit periodic financial reports, or on the basis of a complaint from a certain percentage of workers. Additionally, the Committee once again requests the Government to amend sections 5(1), 40, 58 and 60(1)(b) of the Industrial Organizations Act, as well as sections 22 and 23(1) of the Industrial Relations Act, and to inform it of the progress made in this regard in its next report.

The right to strike. The Committee had previously noted that the compulsory arbitration procedure provided for in section 30 of the Industrial Relations Act was not compatible with the Convention, and had requested the Government to provide more information on its use in practice. In this connection the Committee notes the Government’s statement that dispute settlement procedures are now provided for in sections 145–154 of the third draft Industrial Relations Bill. As regards these provisions, the Committee notes that section 151(1) provides that, where a conciliation proceeding is regarded as completed under section 150(b), the commissioner responsible for the proceeding shall not, where the commissioner has exercised conciliation powers, proceed to exercise arbitration powers in relation to the dispute unless all parties to the dispute consent to the commissioner doing so. Section 152(1) of the draft Bill, however, states that where a conciliation proceeding under section 150(b) is regarded as having been completed, the commissioner responsible for the proceeding shall commence to arbitrate the matters in dispute between the parties, unless precluded from exercising arbitration powers. The Committee considers that these provisions, read in concert, would still appear to allow for instances of compulsory arbitration – in cases, for instance, where the commissioner has not exercised conciliation powers and would therefore not be prohibited from initiating arbitration proceedings. In these circumstances, and further noting the Government’s indication that the sections concerning dispute settlement in the third draft Industrial Relations Bill would have been subject to further deliberation at the NTCC meeting in 2007, following which amendments would be drafted by an interim national consultant, the Committee expresses the hope that sections 150 and 151 of the third draft Industrial Relations Bill would be amended so as to clearly prohibit the submission of industrial disputes to compulsory arbitration, with the exception of disputes concerning public servants exercising authority in the name of the State and disputes in essential services in the strict sense of the term. Further noting that no time frame for conciliation proceedings is provided for under section 150, the Committee recalls that negotiation machinery should not be so slow or complex that a lawful strike becomes impossible or loses its effectiveness (see General Survey, op. cit., paragraph 171). Accordingly, the Committee requests the Government to take the necessary measures to amend section 150 of the third draft Industrial Relations Bill so as to ensure that conciliation proceedings are concluded within a reasonable period of time.

The Committee requests the Government to inform it of the outcome of the NTCC’s deliberations, which were held earlier this year for the purpose of formulating further modifications to the third draft Industrial Relations Bill, and expresses the hope that its comments would be fully taken into account in the course of finalizing the amendments to the draft legislation. It also requests the Government to transmit a copy of the new law once it is adopted.

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The Committee notes that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

The Committee noted that a major review of all labour legislations was being undertaken, commencing with the Industrial Relations Bill of 2003, which is to consolidate the Industrial Relations Act, the Industrial Organizations Act, the Public Service Conciliation and Arbitration Act and the Teaching Service Conciliation and Arbitration Act. The Committee trusts that this consolidation will take into account its previous comments on the following legislative provisions.

Article 2 of the Convention. Right of workers, without distinction whatsoever, to establish and join organizations of their own choosing and without previous authorization. The Committee requested that the Government repeal section 35(2)(b) of the Industrial Organizations Act and delete section 98(2)(b) of the draft Industrial Relations Act, both of which provided that a person who is “of general bad character is not qualified for admission as a member of an industrial organization”.

The Committee also requested the Government to repeal section 22(1)(g) of the Industrial Organizations Act and delete section 86(1)(g) of the draft Industrial Relations Act, both of which allowed the registrar to refuse to register an organization when “some other industrial organization, whether registered or the subject of an application for registration, is sufficiently representative of the whole or a substantial proportion of the interests in respect of which the applicants seek registration of an industrial organization”.

In addition, the Committee requested the Government to amend section 55 of the Industrial Organizations Act and delete section 118 of the draft Industrial Relations Act, both of which allow for the cancellation of an organization’s registration as a penalty for prohibited payments.

Article 3. Right of workers’ and employers’ organizations to draw up their constitutions and rules, to elect their representatives in full freedom and to organize their administration and activities. The Committee requested the Government to amend section 39(1)(b) and (d) of the Industrial Organizations Act and section 102(1)(b) and (d) of the draft Industrial Relations Act – both of which prevent a person who is not engaged in the industry or occupation with which the organization is directly concerned and who is not a member of the organization, from being an officer of that organization unless the registrar in his discretion so permits – by ensuring that the provisions were more flexible.

The Committee requested the Government to repeal section 39(4) of the Industrial Organizations Act and delete section 102(5) of the draft Industrial Relations Act, both of which allow the registrar to remove from office any union secretary or treasurer who, in his opinion, is not capable of performing his or her duties, in order to ensure that public authorities refrain from any interference in the internal administration of industrial organizations.

The Committee requested the Government to amend sections 5(1), 40, 58 and 60(1)(b) of the Industrial Organizations Act, sections 22 and 23(1) of the Industrial Relations Act, and delete sections 103, 121, and 123 of the draft Industrial Relations Act – all of which grant excessive powers to the registrar to investigate union accounts and demand information – so as to ensure that the powers vested on the inspector and registrar do not amount to interference in the organization’s administration.

The Committee noted that the compulsory arbitration procedure, provided for in section 30 of the Industrial Relations Act, was not compatible with the Convention and requested the Government to provide more information on its use in practice and the effective exercise of the right to strike in the country.

The Committee requests the Government to provide it with a copy of the new Industrial Relations Act as soon as it is adopted, as well as copies of any other relevant legislation in connection with the application of the provisions of the Convention and, in particular, any law which regulates or concerns the right to strike.

 

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The Committee takes note of the information contained in the Government’s report. It notes in particular that the Government has undertaken a major review of all labour legislations, commencing with the Industrial Relations Bill of 2003, which is to consolidate the Industrial Relations Act, the Industrial Organizations Act, the Public Service Conciliation and Arbitration Act and the Teaching Service Conciliation and Arbitration Act. The Committee trusts that this consolidation will take into account its previous comments on the following legislative provisions.

Article 2 of the Convention. Right of workers, without distinction whatsoever, to establish and join organizations of their own choosing and without previous authorization. The Committee requested that the Government repeal section 35(2)(b) of the Industrial Organizations Act and delete section 98(2)(b) of the draft Industrial Relations Act, both of which provided that a person who is "of general bad character is not qualified for admission as a member of an industrial organization".

The Committee also requested the Government to repeal section 22(1)(g) of the Industrial Organizations Act and delete section 86(1)(g) of the draft Industrial Relations Act, both of which allowed the registrar to refuse to register an organization when "some other industrial organization, whether registered or the subject of an application for registration, is sufficiently representative of the whole or a substantial proportion of the interests in respect of which the applicants seek registration of an industrial organization".

In addition, the Committee requested the Government to amend section 55 of the Industrial Organizations Act and delete section 118 of the draft Industrial Relations Act, both of which allow for the cancellation of an organization’s registration as a penalty for prohibited payments.

Article 3. Right of workers’ and employers’ organizations to draw up their constitutions and rules, to elect their representatives in full freedom and to organize their administration and activities. The Committee requested the Government to amend section 39(1)(b) and (d) of the Industrial Organizations Act and section 102(1)(b) and (d) of the draft Industrial Relations Act - both of which prevent a person who is not engaged in the industry or occupation with which the organization is directly concerned and who is not a member of the organization, from being an officer of that organization unless the registrar in his discretion so permits - by ensuring that the provisions were more flexible.

The Committee requested the Government to repeal section 39(4) of the Industrial Organizations Act and delete section 102(5) of the draft Industrial Relations Act, both of which allow the registrar to remove from office any union secretary or treasurer who, in his opinion, is not capable of performing his or her duties, in order to ensure that public authorities refrain from any interference in the internal administration of industrial organizations.

The Committee requested the Government to amend sections 5(1), 40, 58 and 60(1)(b) of the Industrial Organizations Act, sections 22 and 23(1) of the Industrial Relations Act, and delete sections 103, 121, and 123 of the draft Industrial Relations Act - all of which grant excessive powers to the registrar to investigate union accounts and demand information - so as to ensure that the powers vested on the inspector and registrar do not amount to interference in the organization’s administration.

The Committee noted that the compulsory arbitration procedure, provided for in section 30 of the Industrial Relations Act, was not compatible with the Convention and requested the Government to provide more information on its use in practice and the effective exercise of the right to strike in the country.

The Committee requests the Government to provide it with a copy of the new Industrial Relations Act as soon as it is adopted, as well as copies of any other relevant legislation in connection with the application of the provisions of the Convention and, in particular, any law which regulates or concerns the right to strike.

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The Committee takes note with interest of the Government’s first report. It also takes note of the provisions of the draft Industrial Relations Act of 2003 presently debated before Parliament. It wishes to raise a certain number of points concerning the application of the following Articles of the Convention.

Article 2 of the Convention. Right of workers, without distinction whatsoever, to establish and join organizations of their own choosing and without previous authorization. The Committee notes that according to the Government’s first report, the legislation contains no provision with respect to specific categories of "salaried or independent workers". It further notes that article 47 of the Constitution provides generally for the right of every person to belong or not to belong to an industrial organization. It also notes that the Industrial Relations Act applies to the State and its employees.

The Committee notes, however, that section 35(2)(b) of the Industrial Organizations Act states that a person who "is of general bad character is not qualified for admission as a member of an industrial organization". Such requirement is vague and subjective and is not in conformity with the right of every worker, without distinction whatsoever, to join an organization. The same applies to section 98(2)(b) of the new draft Industrial Relations Act of 2003, which is identical to the above provision. The Committee requests the Government to repeal such reference in the Industrial Organizations Act and in the draft Industrial Relations Act so as to bring its legislation into conformity with the Convention.

Registration formalities. The Committee takes note of the information contained in the Government’s report with respect to the need for all organizations to be registered within the first three months of their establishment. Section 22(1)(g) of the Industrial Organizations Act provides that the registrar may refuse to register an organization when "some other industrial organization, whether registered or the subject of an application for registration, is sufficiently representative of the whole or a substantial proportion of the interests in respect of which the applicants seek registration of an industrial organization". This provision is contrary to the right of workers and employers to establish and join organizations of their own choosing. The same applies to section 86(1)(g) of the new draft Industrial Relations Act of 2003, which is identical to the above provision. The Committee requests the Government to repeal subsection (1)(g) of section 22 of the Industrial Organizations Act and section 86(1)(g) of the draft Industrial Relations Act so as to bring its legislation into conformity with the Convention.

The Committee further notes that section 55 of the Industrial Organizations Act concerns prohibited payments. Subsection (2) provides that an injunction may be granted to restrain any unauthorized or unlawful expenditure of the funds of an industrial organization. Subsection (3) refers in this respect to a cancellation order of the organization’s registration. In this respect, the new draft Industrial Relations Act of 2003 contains the same provision at section 118 and subsection (3) is clearer on the question of cancellation: "in the course of an application under subsection (2), the national court may, on its own motion, order that the certificate of registration of the organization be cancelled". The Committee considers that such an extreme penalty as cancellation of an organization’s registration in this case violates the rights of workers to form and join organizations of their own choosing. It therefore requests the Government to amend this provision so as to ensure that organizations will be not be dissolved for having contemplated or made a prohibited payment as understood in this section.

Article 3. Right of workers’ and employers’ organizations
to organize their administration and activities and to
formulate their programmes

Election of representatives. Section 39(1)(b) and (d) of the Industrial Organizations Act states that a person who is not actually engaged in an industry or occupation with which the organization is directly concerned and who is not a member of the organization, unless the registrar at his discretion so permits, is not entitled to be an officer of an industrial organization. In this respect, the new draft Industrial Relations Act of 2003 contains the same provision at section 102(1)(b) and (d). The Committee recalls that provisions requiring members of trade unions to belong to the occupation concerned, coupled with a requirement that the officers of the organization be chosen from among the members, infringe the organization’s right to elect representatives in full freedom by preventing qualified persons, such as full-time union officers or pensioners, from carrying out union duties or by depriving unions of the benefit of the experience from among their own ranks. In order for the Government to bring its legislation into conformity with the Convention, it would be desirable to make it more flexible, either by admitting as candidates persons who have previously been employed in the occupation concerned, or by exempting from the occupational requirement a reasonable proportion of the officers of an organization (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 117). The Committee therefore requests the Government to amend such provisions accordingly.

Removal of trade union officers. Section 39(4) of the Industrial Organizations Act states that "the registrar may, by order, remove from the office the secretary or treasurer of an industrial organization who is, in his opinion, not capable of performing effectively the duties of his office". Despite the fact that such decision can be appealed before the national court according to section 70, the Act does not lay down any specific criteria justifying such removal. The new draft Industrial Relations Act of 2003 contains the same provision at section 102(5). The Committee recalls that any removal of trade union officers which is not the result of an internal decision of the trade union, a vote by members or normal judicial proceedings, seriously interferes in the exercise of the trade union office to which the officers have been freely elected by the members of their trade unions (see General Survey, op. cit., paragraph 122). The Committee considers in this respect that it is not for the public authorities to judge the effective performance of trade union officers. It therefore requests the Government to repeal section 39(4) of the Industrial Organizations Act and to ensure the deletion of section 102(5) of the draft Industrial Relations Act of 2003 so that the public authorities shall refrain from any interference in the internal administration of industrial organizations.

Investigation and request for information. Section 5(1) of the Industrial Organizations Act provides that an inspector has such duties, and shall make such investigations and reports in relation to the observance of this Act, as the department head directs. Section 40(1) provides that "the registrar may require the executive committee or an officer of an industrial organization to furnish such information as the registrar thinks necessary for that purpose". In case the officer does not comply with this demand, he is guilty of an offence and subject to a fine not exceeding K200 (subsection (2)). Similar provisions are included at section 58 (requirement of detailed accounts) and section 60(1)(b) (inspection of accounts). Section 22 of the Industrial Relations Act is identical to section 8(1) of the abovementioned Act. Furthermore, section 23(1) states that the inspector may carry out his duties at all reasonable times and with or without notice to any person. The new draft Industrial Relations Act of 2003 contains the same provision at sections 103, 121 and 123.

The Committee recalls that there is no infringement of the right of organizations to organize their administration if the supervision is limited to the obligation of submitting periodic financial reports. Problems of compatibility with the Convention arise when the administrative authority has the power to examine the books and other documents of an organization, conduct an investigation and demand information at any time or is the only body to exercise control (see General Survey, op. cit., paragraphs 125 and 126). The Committee therefore requests the Government to amend these provisions so as to ensure that the powers vested on the inspector and the registrar do not amount to interference in the industrial organization’s administration.

The right to strike. The Committee notes that section 30 of the Industrial Relations Act contains special provisions for certain disputes. This section applies to an industrial dispute that, in the opinion of the Head of State, is of "such importance that, in the public interest, it should be dealt with as provided for in this section". It further provides that "The Head of State may at any time refer an industrial dispute to which this section applies to a tribunal for decision and the making of an award." The Committee considers that providing for compulsory arbitration seriously limits the means available to trade unions to further and defend the interests of their members, as well as their right to organize their activities and to formulate their programmes and is not compatible with Article 3 of the Convention.

The Committee requests the Government to provide more information on the use of this procedure in practice, in particular the number of times industrial disputes have been referred to a tribunal during the period covered by the present report and to specify the types of disputes in question. It further requests the Government to provide information on the effective exercise of the right to strike in the country.

Finally, with respect to the ongoing legislative process concerning the new Industrial Relations Act of 2003, the Committee trusts that account will be taken of the abovementioned comments. The Committee requests the Government to keep it informed of developments and to provide a copy of the Act as soon as adopted.

The Committee also requests the Government to provide a copy of any relevant legislation in connection with the application of the provisions of the Convention and, in particular, any law which regulates or concerns the right to strike.