Observation (CEACR) - adopted 2003, published 92nd ILC session (2004)

The Committee notes the information contained in the Government’s report and recalls that its previous comments concerned the following points:

-  the denial of the right to negotiate collectively in the case of workers in a bargaining unit when these workers do not amount to more than 40 per cent of the workers in the unit or when, if the former condition is satisfied, a single union that is engaged in the procedure of obtaining recognition does not obtain 50 per cent of the votes of the workers in a ballot that the minister has caused to be taken (section 5(5) of Act No. 14 of 1975 and section 3(1)(d) of its regulations);

-  the need to take measures to amend the legislation so that a ballot is made possible where one or more trade unions are already established as bargaining agents and another trade union claims that it has more affiliated members in the bargaining unit than the other trade unions, and therefore invokes its most representative status in the unit in order to be considered as a bargaining agent.

In its report, the Government indicates that the current system of the designation of the bargaining agent and of collective bargaining benefits from the full support of the social partners and that there is no reason to justify the modification of the legislation in this regard. The Government explains that the existence of several bargaining agents for the same unit can result in different working conditions for the same category of workers if they are not members of the same union. Moreover, the withdrawal of this requirement could, according to the Government, lead to sweetheart agreements being concluded.

While noting the Government’s comments, the Committee wishes to point out that, by ratifying the Convention, the State undertook to promote collective bargaining and that this is compatible with the granting of exclusive collective bargaining rights to the most representative trade union or (jointly) trade unions. The Committee is therefore bound to reiterate its position that if under a system of an exclusive bargaining agent, no union can be designated as representing the required percentage, collective bargaining rights should be granted to the most representative trade unions or unions in the unit, at least in respect of their members. Moreover, where one or more trade unions are established as bargaining agents, a ballot should be made possible when another trade union invokes its most representative status in the unit in order to be considered as a bargaining agent.

The Committee once again requests the Government to take the necessary measures to amend its legislation accordingly in the very near future and to keep it informed in this regard.