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Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Samoa (RATIFICATION: 2008)

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Article 2. Right of workers to establish and join organizations without distinction whatsoever. In its previous comments, the Committee had observed that section 2 of the Labour and Employment Relations Act 2013 (LERA) explicitly excluded from its scope workers without contracts and section 3 further excluded services rendered to a matai (traditional authority) under the aiga system or subsistence agricultural activities, and any service which may be exempted by order of the Minister published in the Samoa Gazette and the Savali. The Committee had requested the Government to provide information on the manner in which it is ensured that those categories of workers explicitly excluded from the scope of the LERA, as well as workers in the informal economy, enjoy the right, in law and in practice, to establish and join organizations for furthering and defending their interests. The Committee had also requested the Government to indicate which services, if any, have been excluded from the application of the LERA by the order of the Minister. While taking note of the Government’s indication that article 13 of the Constitution of Samoa provides all citizens with the right ‘to form associations or unions,’ the Committee regrets that no other information has been provided by the Government andreiterates its previous request.

Noting the Government’s indication that in practice, public servants were allowed to join any established organization, the Committee had requested the Government to indicate whether public servants also enjoyed the right to establish organizations of their own choosing and to take the necessary measures to ensure that public servants, like other workers, enjoy the right to join and establish organizations of their own choosing in law. The Committee regrets that the Government provides no new information in this respect and reiterates its request for specific information as to how various categories of workers, explicitly or implicitly excluded from LERA, enjoy the right, in law and in practice, to establish and join organizations for furthering and defending their interests.

The Committee understands that an updated LERA Bill 2022 is currently before Parliament and expects that any legislative development takes into account its comments above. The Committee requests the Government to transmit a copy of the new legislation once adopted.

Article 3. Right of organizations to organize their activities and formulate their programmes. The Committee had previously requested the Government to take all necessary measures to amend the Public Service Act 2004 so as to ensure that public servants had the right to participate in strike actions and noted in this respect the Government’s indication that the forthcoming Public Service Amendment Bill provided for a repeal of section 48(1)(b) of the Public Service Act. The Committee notes the Government’s indication that plans for the Public Service Act amendment have been delayed by the transition in the Government’s administration. It further notes the commitment of the Government to involve all relevant agencies in consultation regarding any legislative development. The Committee expects that the Public Service Act will be amended without further delay in consultation with the social partners concerned and requests the Government to provide information on developments in this regard, including a copy of the law as amended.

Article 4. Dissolution and suspension. The Committee had previously requested the Government to amend the Incorporated Societies’ Ordinance 1952 so as to ensure that workers’ and employers’ organizations could only be dissolved and suspended through judicial channels. The Committee takes notes of the explanation provided by the Government on the rationale of the process set out in the Ordinance. The Committee notes, in particular, the Government’s indication that a specific legislation which would apply to workers’ and employers’ organization is being considered. The Committee expects that the legislative review will take place in the near future and will result in ensuring that workers’ and employers’ organizations can only be dissolved and suspended through judicial channels. It requests the Government to provide information on developments in this regard.

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The Committee notes that the Government’s report has not been received. It hopes that the next report will contain full information on the matters raised in its previous comments.

Repetition
Article 2 of the Convention. Right of workers to establish and join organizations without distinction whatsoever. In its previous comments, the Committee had requested the Government to indicate whether the Labour and Employment Relations Act 2013 (LERA) is applicable to independent and outsourced workers, workers without employment contracts and public servants. The Committee notes that the Government explains that the terms “employees” and “employment” have been widely defined in the LERA, covering various types of workers and working arrangements. According to the Government, irrespective of whether workers are considered independent and outsourced and/or working without an employment contract, such workers are covered by the LERA. While taking note of the Government’s explanation, the Committee observes that section 2 of the LERA explicitly excludes from its scope workers without contracts and section 3 further excludes services rendered to a matai (traditional authority) under the aiga system or subsistence agricultural activities and any service which may be exempted by order of the Minister published in the Samoa Gazette and the Savali.The Committee requests the Government to provide information on the manner in which it is ensured that those categories of workers explicitly excluded from the scope of the Act, as well as workers in the informal economy, enjoy the right, in law and in practice, to establish and join organizations for furthering and defending their interests. The Committee also requests the Government to indicate which services, if any, have been excluded from the application of the LERA by the order of the Minister.
With respect to the applicability of the LERA to public servants, the Committee notes the Government’s indication that despite the fact that public service employees are excluded from its scope by virtue of its section 3(1), in practice, this category of workers is allowed to join and become members of the Public Service Association (PSA) or any other properly established organization.While taking due note that in practice, public servants are allowed to join established organizations, the Committee requests the Government to indicate whether public servants also enjoy the right to establish organizations of their own choosing. It further requests the Government to take the necessary measures to ensure that public servants, like other workers, enjoy the right to join and establish organizations of their own choosing, not only in practice but also in law, and to provide information on the steps taken or envisaged in this regard.
Article 3. Right of organizations to organize their activities and formulate their programmes. The Committee had previously requested the Government to take all necessary measures to amend the Public Service Act 2004 so as to ensure that public servants had the right to participate in strike actions. The Committee notes the Government’s indication that the forthcoming Public Service Amendment Bill provides for a repeal of section 48(1)(b) of the Public Service Act, which, according to the previous findings of the Attorney-General, prevented workers from participating in strike actions.The Committee hopes that the Public Service Act will be amended without further delay and requests the Government to provide information on any developments in this regard, including a copy of the law as amended.
Article 4. Dissolution and suspension. In its previous comments, the Committee had requested the Government to amend the Incorporated Societies’ Ordinance 1952 so as to ensure that workers’ and employers’ organizations could only be dissolved and suspended through judicial channels. The Committee notes the Government’s indication that the Samoa Law Reform Commission has begun an ambitious exercise to review the existing legislation, define the responsibility of ministries, state-owned enterprises and constitutional bodies with regard to the revised laws, and identify outdated laws with a view to their repeal or amendment.The Committee expects that the legislative review will result in the amendment of the Ordinance so as to ensure that workers’ and employers’ organizations can only be dissolved and suspended through judicial channels. It requests the Government to provide information on all developments in this regard.

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Article 2 of the Convention. Right of workers to establish and join organizations without distinction whatsoever. In its previous comments, the Committee had requested the Government to indicate whether the Labour and Employment Relations Act 2013 (LERA) is applicable to independent and outsourced workers, workers without employment contracts and public servants. The Committee notes that the Government explains that the terms “employees” and “employment” have been widely defined in the LERA, covering various types of workers and working arrangements. According to the Government, irrespective of whether workers are considered independent and outsourced and/or working without an employment contract, such workers are covered by the LERA. While taking note of the Government’s explanation, the Committee observes that section 2 of the LERA explicitly excludes from its scope workers without contracts and section 3 further excludes services rendered to a matai (traditional authority) under the aiga system or subsistence agricultural activities and any service which may be exempted by order of the Minister published in the Samoa Gazette and the Savali. The Committee requests the Government to provide information on the manner in which it is ensured that those categories of workers explicitly excluded from the scope of the Act, as well as workers in the informal economy, enjoy the right, in law and in practice, to establish and join organizations for furthering and defending their interests. The Committee also requests the Government to indicate which services, if any, have been excluded from the application of the LERA by the order of the Minister.

With respect to the applicability of the LERA to public servants, the Committee notes the Government’s indication that despite the fact that public service employees are excluded from its scope by virtue of its section 3(1), in practice, this category of workers is allowed to join and become members of the Public Service Association (PSA) or any other properly established organization. While taking due note that in practice, public servants are allowed to join established organizations, the Committee requests the Government to indicate whether public servants also enjoy the right to establish organizations of their own choosing. It further requests the Government to take the necessary measures to ensure that public servants, like other workers, enjoy the right to join and establish organizations of their own choosing, not only in practice but also in law, and to provide information on the steps taken or envisaged in this regard.

Article 3. Right of organizations to organize their activities and formulate their programmes. The Committee had previously requested the Government to take all necessary measures to amend the Public Service Act 2004 so as to ensure that public servants had the right to participate in strike actions. The Committee notes the Government’s indication that the forthcoming Public Service Amendment Bill provides for a repeal of section 48(1)(b) of the Public Service Act, which, according to the previous findings of the Attorney-General, prevented workers from participating in strike actions. The Committee hopes that the Public Service Act will be amended without further delay and requests the Government to provide information on any developments in this regard, including a copy of the law as amended.

Article 4. Dissolution and suspension. In its previous comments, the Committee had requested the Government to amend the Incorporated Societies’ Ordinance 1952 so as to ensure that workers’ and employers’ organizations could only be dissolved and suspended through judicial channels. The Committee notes the Government’s indication that the Samoa Law Reform Commission has begun an ambitious exercise to review the existing legislation, define the responsibility of ministries, state-owned enterprises and constitutional bodies with regard to the revised laws, and identify outdated laws with a view to their repeal or amendment. The Committee expects that the legislative review will result in the amendment of the Ordinance so as to ensure that workers’ and employers’ organizations can only be dissolved and suspended through judicial channels. It requests the Government to provide information on all developments in this regard.

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The Committee takes note of the observations provided by the International Organisation of Employers (IOE) in a communication received on 1 September 2015, which are of a general nature.

Article 2 of the Convention. Right to establish and join organizations without distinction whatsoever. In its previous comments, the Committee expressed the firm hope that the adoption process of the Labour and Employment Relations Bill would soon be completed in consultation with the social partners, and that due account would be taken of its comments. The Committee also requested the Government to supply the new Labour and Employment Relations Act once adopted. The Committee welcomes the adoption of the Labour and Employment Relations Act 2013 (LERA) and observes that section 22 guarantees freedom of association to employees and employers and prohibits anti-union discrimination in recruitment. While noting with interest that the LERA contains provisions which are in general in conformity with the Convention, the Committee also notes that it only covers employees instead of all workers. In this regard, the Committee notes that the Government indicates in its report that Article 2 of the Convention is given effect through section 2 of the LERA, which defines “employee” as a person who enters into or works under a contract with an employer, whether the contract be for manual labour, clerical work or otherwise and whether it be a contract of service or apprenticeship or a contract personally to execute work and includes workers and managerial personnel. The Committee requests the Government to confirm that the LERA also covers independent and outsourced workers and workers without employment contracts.

The Committee had also previously requested the Government to take the necessary measures to ensure that public servants enjoy the guarantees enshrined in the Convention and to provide information on any developments in this regard. The Committee notes that the Government indicates that: (i) section 3(4)(a) and (b) of the LERA provides that the Act applies to every public body as defined under the Public Bodies (Performance and Accountability) Act 2001, whether or not duly incorporated by an Act of Parliament; and (ii) the Government has contacted the Public Service Commission seeking comments on the applicability of the LERA to public servants and is awaiting a reply. However, the Committee observes that under section 3(1)(a) of the LERA the service of Samoa (that is, public service as defined by the Constitution) is excluded from the application of the Act. Therefore, the Committee requests the Government to provide further information on the applicability of the LERA to public servants, including the views of the Public Service Commission and the meaning of the exclusion contained in section 3(1)(a) of the LERA, and to take the necessary measures to ensure that public servants enjoy the guarantees enshrined in the Convention.

Article 3. Right of organizations to draw up their constitutions, elect their representatives, organize their activities and formulate their programmes. The Committee had previously expressed the hope that, following the Attorney-General’s conclusion that section 48A(1)(b) of the Public Services Act 2004 appears to be inconsistent with the Convention in that it prevents workers from participating in strike action, all necessary measures would be taken to amend the relevant legislation as requested. The Committee notes that the Government indicates that there is currently no progress in amending the Public Service Act 2004 but that the Government is considering amending the legislation in light of the findings of the Attorney-General, and that it will inform the Committee of any such amendments. The Committee once again requests the Government to take all necessary measures to amend the relevant legislation to bring it into full conformity with the Convention and to provide information on any developments in this regard.

Article 4. Dissolution and suspension. The Committee had previously requested the Government to take the necessary measures to amend the Incorporated Societies’ Ordinance 1952 so as to ensure that the dissolution and suspension of workers’ and employers’ organizations is only possible through judicial channels, and to provide information on any developments in this regard. The Committee notes that the Government indicates that the Ministry of Justice and Courts Administration is considering the matter. The Committee once again requests the Government to take the necessary measures to amend the relevant legislation so as to ensure that workers’ and employers’ organizations can only be dissolved and suspended through judicial channels, and to provide information on any developments in this regard.

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In its previous comments, the Committee noted the Government’s indication that the tripartite partners had drafted a new Labour and Employment Relations Bill (“the draft Bill”) to address all issues related to the Convention. While noting that the draft Bill, which had benefited from ILO technical assistance, contained provisions which were in general in conformity with the Convention, the Committee had drawn the Government’s attention to the need to address the following issues.

Article 2 of the Convention. Right to establish and join organizations without distinction whatsoever. The Committee had previously requested the Government to ensure that all workers and employers, including in the public service and in the agricultural sector, are able to exercise their right to freedom of association, with the sole exception of the armed forces and the police. The Committee notes that the Government indicates in its report that: (i) section 3(b) of the draft Bill provides that the Act applies to agricultural and fisheries sector businesses; (ii) the draft Bill excludes public servants (section 3) but applies to publicly owned undertakings (section 4(a)); (iii) public servants are covered by the Public Service Act 2004, which does not explicitly provide for freedom of association (but the right to freedom of association in the Constitution is applicable); and (iv) in practice, public servants “organize” and are represented by the Public Service Association. The Committee recalls that the standards contained in Convention No. 87 apply to all workers “without distinction whatsoever”, and are therefore applicable to employees of the State. The Committee therefore requests the Government to take the necessary measures to ensure that public servants enjoy the guarantees enshrined in this Convention, and to provide information on any developments in this regard.

Article 3. Right of organizations to draw up their constitutions, elect their representatives, organize their activities and formulate their programmes. The Committee had previously requested the Government to ensure that: (i) workers’ and employers’ organizations shall have the right to draw up their constitutions and rules, elect their representatives in full freedom, organize their administration and activities, and formulate their programmes; and (ii) workers are granted the right to industrial action to defend their economic and social interests with the only possible exception of civil servants exercising authority in the name of the State, essential services in the strict sense of the term (that is, services the interruption of which would endanger the life, personal safety or health of the whole or part of the population) or in case of acute national or local crisis. The Committee notes the Government’s indication that: (i) the Incorporated Societies Ordinance covers the process for registering the rules relating to such societies and does not contain any provisions that enable public authorities to restrict the rules, administration and activities of incorporated societies; (ii) the Ministry of Commerce, Industry and Labour sought a legal opinion from the Attorney-General’s Office on the application of the right to organize for public servants, which specifically relates to the existing provisions of the Public Service Act that prevent workers prom participating in industrial action (section 48A(1)(b)); (iii) the Attorney-General’s Office concluded that this provision appears to be inconsistent with the Convention; and (iv) the Government is now actively considering whether an amendment to the Public Service Act is required to bring it into line with the Convention. The Committee hopes that, following the Attorney-General’s Office’s conclusion, all necessary measures will be taken to amend the relevant legislation as requested.

Article 4. Dissolution and suspension. The Committee had previously requested the Government to ensure that workers’ and employers’ organizations are protected from any dissolution or suspension by the administrative authority. The Committee notes the Government’s indication that, under sections 23 and 24 of the Incorporated Societies Ordinance, an incorporated society can be wound up either voluntarily or by the High Court in a limited set of circumstances. The Committee notes, however, that, under section 27, if at any time the Registrar is satisfied that a society is no longer carrying on its operations or has been registered by reason of a mistake of fact or law, he or she may make a declaration that the society is dissolved and make in the register an entry of the dissolution of the society. The Committee requests the Government to take the necessary measures to amend the relevant legislation so as to ensure that the dissolution and suspension of workers’ and employers’ organizations should only be possible through judicial channels, and to provide information on any developments in this regard.

Lastly, the Committee notes that the Government states in its report that the draft Bill is still before Parliament and has not yet been passed into law. The Committee expresses the firm hope that due account will be taken of its comments and that the legislative reform will soon be completed in consultation with the social partners. The Committee requests the Government to provide information on progress made in its report and to supply the new Labour and Employment Relations Act once adopted.

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The Committee notes that the Government indicates in its first report that the tripartite partners have drafted a new Labour and Employment Relations Bill (2011) (“the draft Bill”) to address all issues related to the Convention. The Committee notes that the draft Bill is still in the process of being developed and has benefited from ILO technical assistance. The Committee expresses the firm hope that the legislative reform will take into account all comments made below and will soon be completed in full conformity with the Convention in consultation with the social partners. The Committee requests the Government to provide information on progress made in its report and to supply the new Law as adopted.

Articles 1–11. While observing that the draft Bill contains provisions which are in general in conformity with the Convention, the Committee requests the Government to make sure that the draft Bill ensures that:

-all workers and employers, including in the public service and in the agriculture sector, are able to exercise their right to freedom of association, with the sole exception of the armed forces and the police;
-workers’ and employers’ organizations shall have the right to draw up their constitutions and rules, to elect their representatives in full freedom, to organize their administration and activities, and to formulate their programmes;
-workers are granted the right to strike to defend their economic and social interests with the only possible exception of civil servants exercising authority in the name of the State, essential services in the strict sense of the term (that is, service the interruption of which would endanger the life, personal safety or health of the whole or part of the population) or in case of acute national or local crisis;
-workers’ and employers’ organizations are protected from any dissolution or suspension by the administrative authority.