Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee notes the Government’s report.

The Committee also notes the comments on the application of the Convention made by the International Confederation of Free Trade Unions (ICFTU) in a communication dated 10 August 2006, referring to the arrest by the police of nine trade unionists during the national strike on 8 February 2005 and the arrest of 31 mineworkers during the strike held in July 2005, as well as the attempt to open criminal proceedings against the union leadership of the National Energy Sector and Allied Workers’ Union. In this respect, the Committee takes note of the observations submitted by the Government in which it indicates that: (1) with regard to the nine trade unionists arrested during the 2005 national strike, the police has only arrested people who were protesting without police permission and who could represent a danger for society; (2) with regard to the arrest of 31 mineworkers during a strike in July 2005, this was done to reduce tension between the parties to the conflict and to maintain peace in the country. The Committee recalls that the police authorities should be given precise instructions so that, in cases where public order is not seriously threatened, people are not arrested simply for having organized or participated in a demonstration, and that the arrest of trade unionists against whom no charge is brought involves restrictions on freedom of association, and governments should adopt measures for issuing appropriate instructions to prevent the danger involved for trade union activities by such arrests. The Committee requests the Government to ensure that these principles are respected.

The Committee recalls that for many years it has been requesting the Government to take measures to bring the following provisions of the Industrial and Labour Relations Act into conformity with the Convention:

–      section 78(6) to (8), under which a strike can be discontinued if it is found by the court not to be “in the public interest”;

–      section 100, which refers to exposing property to injury;

–      section 107, which prohibits strikes in essential services and empowers the Minister to add other services to the list of essential services, in consultation with the Tripartite Consultative Labour Council;

–      section 76, which establishes no timeframe within which conciliation should end before a strike can take place;

–      section 78(1) under which, as interpreted by a decision of the Industrial Relations Court, either party may take an industrial dispute to court;

–      section 107, which empowers a police officer to arrest, without any possibility of bail, a person who is believed to be striking in an essential service or who is violating section 100 (exposing property to injury), and which imposes a fine and up to six months’ imprisonment;

–      section 2(e), which excludes from the scope of the Act, and therefore from the guarantees afforded by the Convention, workers in the prison service, judges, registrars of the court, magistrates and local court justices, and section 2(2), which accords the Minister discretional power to exclude certain categories of workers from the scope of the Act; and

–      sections 18(1)(b) and 43(1)(a), under which a person, having been an officer of an employers’ or workers’ organization whose certificate of registration has been cancelled, may be disqualified from being an officer of a trade union if that person fails to satisfy the commissioner that she or he did not contribute to the circumstances leading to such cancellation.

In this regard, the Committee notes the Government’s indication that the Technical Tripartite Committee has amended the laws, which await adoption by the Tripartite Consultative Labour Council and ratification by Parliament. The Committee hopes that the envisaged amendments will take into account the comments that it has been making for many years and that they will be adopted in the near future. The Committee requests the Government to provide information in its next report on any progress achieved in this respect and hopes that the amendments to the Act will be in full conformity with the provisions of the Convention.

Finally, with regard to the observations of the ICFTU of 31 August 2005 concerning threats by the President to trade unions, the Committee notes the Government’s indication that these allegations are unfounded and that the trade unions were merely reminded to concentrate on the activities of workers’ interests which constitute their core business, rather than political issues. In this respect, the Committee recalls that “although the promotion of working conditions by collective bargaining remains a major feature of trade union action, (…) workers’ organizations must be able to voice their opinions on political issues in the broad sense of the term and, in particular, to express their views publicly on a government’s economic and social policy” (see General Survey on freedom of association and collective bargaining, 1994, paragraph 131).