Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

Articles 1–4 of the Convention. The Committee had previously noted that a labour law review was on the agenda of the tripartite Consultative Labour Council. The Committee notes that the Industrial and Labour Relations (Amendment) Act No. 8 of 2008 has been adopted. The Committee however notes that according to the Government’s report, most of the amendments it has previously proposed, still remain unattended to, and were not taken into account during the process of the labour law review. The Committee further notes that according to the Government’s report, the concerns expressed by trade unions and employers’ associations, some of which were presented before the Parliamentary Committee on Economic, Social and Labour Affairs, have been referred to the Government for consideration, although since 1997, the said provisions have not been used against workers or employers. Finally, the Committee notes the Government’s indication that its previous comments have been noted and will be taken into account in the future review of the Industrial and Labour Relations Act.

In these circumstances, the Committee must recall its comments concerning the Industrial and Labour Relations Act (as amended by the Industrial and Labour Relations (Amendment) Act, 2008) (ILRA), which read as follow:

–      Section 78(1)(a) and (c) and (4) of the ILRA, as amended, allows, in certain cases, either party to refer the dispute to a court or arbitration. The Committee recalls that arbitration imposed by the legislation, or at the request of one party in the services which are neither essential in the strict sense of term, nor involving civil servants exercising authority in the name of the State, is contrary to the principle of the voluntary negotiation of collective agreements. The Committee therefore requests the Government to give consideration to redrafting the above provisions so as to ensure that arbitration in services other than those mentioned above, can take place only at the request of both parties involved in the dispute.

–      Section 85(3) of the ILRA, as amended, provides that the Court shall dispose of the matter before it (including disputes between an employer and an employee, as well as the matters affecting trade unions and collective bargaining rights) within a period of one year from the day on which the complaint or application is presented to it. The Committee understands that, under section 85, the Court has jurisdiction over the complaints of anti-union discrimination and trade union interference and recalls that when allegations of violation of trade union rights are concerned, both the administrative bodies and the competent judges should be empowered to give a ruling rapidly. The Committee therefore requests the Government to shorten the maximum period within which a court should consider the matter and issue its ruling thereon.

The Committee once again emphasizes the importance that should be attached to full and frank consultation taking place on any questions or proposed legislation affecting trade union rights. The Committee hopes that the envisaged amendments will be adopted in the very near future following full and frank consultations with the social partners. It requests the Government to provide information in its next report on any progress achieved in this respect and once again hopes that the amendments to the Act will be in full conformity with the provisions of the Convention and its comments above.

International Trade Union Confederation (ITUC) comments. The Committee notes the comments made by ITUC in communications dated 29 August 2008 and 24 August 2010, stating that trade union rights are widely flouted, particularly in the mining sector, which is dominated by foreign owners who are often accused of intimidating behaviour. ITUC further indicates that the increasing number of sub-contractors in the mining industry makes it harder to organize, and when trade unions do succeed, they are faced with obstacles to bargain collectively. The Committee requests the Government to provide its observations thereon.