Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee notes the Government’s reports and the discussions in the Conference Committee on the Application of Standards in June 2002. The Committee regrets that the Government did not accept an ILO mission suggested by the Conference Committee on the Application of Standards and that it has not sent the Bill amending certain provisions of the Labour Relations Act. The Committee recalls that its previous comments concerned the following points which involved serious infringements of the Convention.

1. Protection of workers’ organizations against acts of interference of employers’ organizations and vice versa. The Committee previously noted that sections 7, 8 and 9 of the Labour Relations Act do not ensure comprehensive and specific protection against acts of interference. In order to guarantee the application of Article 2 of the Convention, the Committee invited the Government to enact section 10(1) of the Act, which provides for a power of the Minister to prescribe by statutory instruments, the acts or omissions constituting unfair labour practices. The Committee notes that, in its first of the three reports, the Government indicates that it may perhaps be appropriate for the trade unions or any other person to bring to the consideration of the Minister or board the issues or instances which they may wish the Minister to proscribe (prohibit) as unfair labour practices or instances of interference. The Committee further notes the Government’s statement in its second report that the Labour Relations Amendment Bill, which is currently pending before Parliament and expected to be adopted later in the year, would address the Committee’s concerns on this issue. In its third report, the Government indicates that during the discussion of the Labour Relations Amendment Bill, the issue of comprehensive and specific protection will be considered. The Committee expresses its hope that the Labour Relations Amendment Bill will in fact provide for the comprehensive and specific protection against acts of interference and requests the Government to keep it informed in this regard.

2. Compulsory arbitration in the context of collective bargaining imposed by the authorities at their own initiative. The Committee had previously requested to amend sections 98, 99, 100, 106 and 107 of the Labour Relations Act. The Committee notes that, in the first of its three reports, the Government indicates that in the proposed Amendment Bill, sections 98, 99 and 100, and not section 106, are being sought to be repealed. Moreover, as concerns section 98, the Government indicates that under the amendment, this section will provide that before referring a dispute to compulsory arbitration, the labour relations officer shall afford the parties a reasonable opportunity to make representations on the matter. The Committee also notes that in its two last reports, the Government indicates that the new Amendment Bill will address the issues raised by the Committee under Article 4 of the Convention. Noting the information given by the Government in the first of its reports, the Committee regrets that the amendment of section 106 is not envisaged. In this respect, the Committee once again recalls that compulsory arbitration may only be imposed with respect to public servants engaged in the administration of the State and in case of acute national crisis. As for the proposed amendment of section 98, the Committee notes that the new wording does not change the legal effect of the current section 98, as the labour relations officer will continue to have a discretionary power to refer the parties to compulsory arbitration. Therefore, the Committee once again requests that the Government take the necessary measures in order to amend or repeal sections 98, 99, 100, 106 and 107 so as to bring its legislation into conformity with the principles of voluntary collective bargaining.

3. Other limitations to the right to collective bargaining. The Committee had previously considered that section 17(2) of the Labour Relations Act, which provides that regulations made by the Minister prevail over any agreement or arrangement, as well as section 22 of the Act which states that the Minister may, by statutory instrument, fix a maximum wage and the maximum amount that may be payable by way of benefits, allowances, bonuses or increments, limited the parties’ right to collective bargaining and had asked the Government to take measures to amend them. The Committee notes that, in the first of its three reports, the Government indicates that according to the amended section 17(2) of the Bill, the power of the Minister to make regulations which take precedence over any agreement is maintained and will be exercised "in consultations with the appropriate council, if any, appointed in terms of section 19". The Committee notes also that according to section 19, the advisory board "may be constituted on the Minister’s own initiative and may consist of any persons that he may deem fit". In these circumstances, the Committee requests the Government to take the necessary measures to amend or repeal section 17(2). As concerns section 22, it is rather unclear from the Government’s report, whether the current section 22 will remain. The Committee considers that section 22 of the Act should be amended or repealed.

The Committee regrets that the Government is at least partly disagreeing with the Committee’s request to amend sections 25(2), 79 and 81 of the Act providing for a requirement for collective agreements to be submitted for ministerial approval in order to ensure that their provisions are not inconsistent with the national laws and the international labour laws and that they are not inequitable to consumers, to members of the public generally or to any other party to the collective bargaining agreement. The Committee recalls in this respect that the power of the authorities to approve collective agreements is compatible with the Convention provided that the approval may be refused only if the collective agreement has a procedural flaw or does not conform to the minimum standards laid down by general labour legislation (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 251). The Committee further notes that according to the Government, the new section 25(A) of the Amendment Bill would minimize interference by the authorities as long as the agreements are consistent with national laws by giving a recognition and weight to collective bargaining agreements negotiated by work councils at establishments. The Committee points out that the explanation of the Government on this section does not seem to respond neither to the principle above nor to the previous requests of the Committee. The Committee hopes that serious attention will be given to amending the mentioned provisions and that the new Amendment Bill will limit the powers of the authorities in accordance with the criteria laid down. It furthermore requests the Government to provide the text of the Amendment Bill.

As for section 25(1) of the Act, according to which if workers’ committees reach an agreement with the employer, it must be approved by the trade union and by more than 50 per cent of the employees, the Committee notes the Government’s indication that this condition does not apply to arrangements reached between employers and trade unions. The Committee underlines that collective bargaining, through direct settlement or agreements signed between an employer and the representatives of a group of non-unionized workers, when a union exists in the undertaking, does not promote collective bargaining as set out in Article 4 of the Convention, which refers to the development of negotiations between employers or their organizations and workers’ organizations. The Committee requests the Government to amend section 25(1) in order to bring the legislation into conformity with the abovementioned principle.

As concerns the workers excluded from the Public Service Act, the Committee notes that some of the workers excluded by section 14 of the Act cannot be considered as workers engaged in the administration of the State (prison staff and employees engaged in the framework of the Lotteries Act); moreover, certain groups of workers are broadly defined and may potentially include workers not engaged in the administration of the State (section 14(c), (h)). The Committee notes the indication of the Government that these categories of workers do not have recognized organizations or associations representing them and that there are no current laws providing for their right to organize and to collective bargaining. In this respect, the Committee recalls that while Article 6 of the Convention allows public servants engaged in the administration of the State to be excluded from its scope, other categories should enjoy the guarantees of the Convention and therefore be able to negotiate collectively their conditions of employment (see General Survey, op. cit., paragraph 262). The Committee requests the Government to take the necessary legislative measures in order to ensure that the right to collective bargaining is granted to all public servants, with the sole possible exception of those engaged in the administration of the State. It further requests the Government to keep it informed in this respect.

The Committee also notes the Government’s statement that teachers, nurses and other civil servants not directly engaged in the administration of the State negotiate collective agreements and participate in consultations. The Committee asks the Government to indicate the number of collective agreements covering these categories of workers as well as the number of workers covered by such agreements.