Direct Request (CEACR) - adopted 2004, published 93rd ILC session (2005)

The Committee takes note of the Government’s report. It also notes the comments communicated by the International Confederation of Free Trade Unions (ICFTU) dated 20 February 2004.

Article 2 of the Convention. The Committee recalls that its previous comments concerned access to the undertakings located in the export processing zones (EPZs) for workers’ representatives. The Committee notes that, according to the ICFTU, such access is very difficult. The Committee also notes from the Government’s report that the Labour Standards and Employment Relations Manual of the Board of Investment (BOI - which is the overseeing authority in EPZs) has been amended in order to facilitate the representatives of trade unions who are not employed in the undertakings but whose trade union has members employed therein to enter and engage in trade union activities. Thus, section 9A of the Manual provides that a duly nominated representative of a trade union who is not employed in a BOI enterprise but whose trade union has members employed therein, shall be granted access to the enterprise/export processing zone, provided the union: (a) seeks access for the purpose of performing representation functions; (b) has obtained the consent of the employer for such access which may not be unreasonably withheld with due respect to the need to maintain the smooth functioning of the enterprise concerned; and (c) having satisfied the above requirements, obtained an entry permit from the BOI authorities. The Committee requests the Government to specify in its next report the meaning of the phrase "representation functions".

Article 5. The Committee notes that, according to the ICFTU, employers in EPZs have used for many years the creation of "employees’ councils" promoted by the BOI, to hamper the creation of free and independent trade unions and to prevent them from exercising their right to collective bargaining. In particular, the councils can replace trade unions in collective bargaining if the latter do not represent 40 per cent of the workforce and the former do. The Committee notes that according to section 9(v), where both a recognized trade union having bargaining status and an employees’ council exist in an enterprise, the employer shall not use the employees’ council to undermine the position of such trade union and its representatives and shall encourage cooperation on all relevant matters between the employees’ council and the trade union concerned. According to section 10.3 of the Guidelines for the Formation and Operation of Employees’ Councils, where both a representative trade union which has been recognized for collective bargaining purposes and an employees’ council exist in an enterprise, the employees’ council shall not represent the employees in collective bargaining and settlement of industrial disputes. The Committee considers that the protection of Article 5 of the Convention applies to all trade unions in an undertaking and not just those which are recognized as representative. The Committee requests the Government to amend the above provisions so as to ensure that, where both trade unions and elected representatives exist in an undertaking either within or outside the EPZs, all trade unions regardless of the representativeness requirement are adequately protected in accordance with the terms of Article 5 of the Convention.