Direct Request (CEACR) - adopted 1995, published 82nd ILC session (1995)

The Committee notes the Government's report as well as the entry into force on 1 January 1994 of the Industrial Relations Act of 1993. It draws the Government's attention to the following points.

1. The Committee requests the Government to provide information on what measures have been taken to allow the persons mentioned in section 3(2)(b) and (c) and 3(3)(c) of the Act and who are currently excluded from its scope, to establish and join organizations in order to promote their occupational interests, in conformity with Article 2 of the Convention. The Committee further requests the Government to provide copies, if any, of the relevant legislation.

2. The Committee would request the Government to indicate whether the Minister has had recourse to the notification provision (section 7(1)(b)) in the case of an application for registration of a trade union and, if so, to indicate the minimum number of members required by the Minister in order to submit such an application.

3. The Committee notes that the conditions set out in section 9(1)(b), for the compulsory registration of trade unions confer on the Registrar a discretionary power to refuse registration. While noting that the union has a right of appeal to the Supreme Court (section 8(7)), the Committee would recall that the existence of the right to appeal to a court is not in itself an adequate safeguard; the competent judges should be able, on the basis of the record, to review the grounds for refusal given by the administrative authorities, which grounds should not be contrary to the principles of freedom of association (see 1994 General Survey on Freedom of Association and Collective Bargaining, paragraph 77). The Committee requests the Government to inform it of any instance where the Registrar has refused registration under section 9(1)(b)).

4. The Committee notes that subsection 20(7) prescribes a maximum period of two years to hold office as an office-bearer of a union. However, organizations should have the right to elect their representatives in full freedom (see 1994 General Survey, op. cit., paragraph 121). The Committee would therefore request the Government to clarify whether office-bearers are eligible for re-election, in conformity with Article 3 of the Convention.

5. Furthermore, the Committee would draw the Government's attention to the incompatibilities between the following provisions and the right of workers' organizations to organize their administration and activities without interference from the public authorities:

(a) section 27 which regulates in detail the conditions in which a first-level trade union may contribute to the political fund of a federation is incompatible with the principle that the greatest possible autonomy should be left to organizations in the administration of their political funds;

(b) section 34(1) and (2) allow the Registrar, at his discretion, to require a trade union to furnish detailed accounts of the funds or other assets of the trade union or its branches within a period of notification of 21 days. However, supervision by the Registrar should be limited to the obligation of submitting periodic financial reports or if there are serious grounds for believing that the actions of an organization are contrary to its rules or the law (see 1994 General Survey, op. cit., paragraph 125).

The Committee accordingly requests the Government to ensure that sections 27, 34(1) and (2) are amended to bring them into line with Article 3.

6. (a) The Committee notes that section 52(1)(a)(iv) stipulates that a strike has to be approved by the votes of two-thirds of union members present and voting at the meeting called for the purpose of considering the issue. The Committee would recall that the majority of two-thirds required for a strike ballot is too high and should be fixed at a reasonable level (see 1994 General Survey, op. cit., paragraph 170).

(b) In addition, section 52(4), which allows the Minister to declare a strike to be unlawful if he is of the opinion that its continuance would endanger, amongst others, "public order or the national economy", is too broadly worded. Inasmuch as general prohibitions of this kind are a major restriction of one of the essential means available to workers and to their organizations for furthering and defending their interests, such measures cannot be justified except in a situation of acute national crisis and then, only for a limited period and to the extent necessary to meet the requirements of the situation. This means genuine crisis situations, such as those arising as a result of a serious conflict, insurrection or natural disaster in which the normal conditions for the functioning of society are absent (see 1994 General Survey, op. cit., paragraph 152).

(c) Finally, the cooling-off period of 60 days before a strike may commence (section 52(1)(b)) is too long especially since persons involved in an unlawful strike are liable to imprisonment for six months under section 56(1)(a) and (b).

The Committee notes that certain prohibitions of, or restrictions on, the right to strike which are in conformity with the principles of freedom of association sometimes provide for civil or penal sanctions against strikers and trade unions which violate these provisions. In the view of the Committee, such sanctions should not be disproportionate to the seriousness of the violations (see 1994 General Survey, op. cit., paragraph 178).

The Committee would therefore request the Government to ensure that sections 52(1)(a)(iv), (1)(b) and (4), and 56(1)(a) and (b) are amended in line with the principles enunciated above.

7. Section 9(1)(e) stipulates that the Registrar shall not register a trade union "if its membership is open to persons who are not engaged in the same trade, or in similar or connected trades or in the same undertaking". The Committee draws the Government's attention to the principle that such restrictions may be applied to first-level organizations only if they are free to establish inter-professional organizations, and to join federations and confederations in the form and manner deemed most appropriate by the workers concerned (see 1994 General Survey, op. cit., paragraph 84). The Committee accordingly requests the Government to confirm that the workers' organizations may enjoy that possibility, in line with Article 6.