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

The Committee notes the information provided in the Government’s report. The Committee also notes the Draft Amendment Bill (2006) to the Labour Code Order, 1992. Furthermore, the Committee notes that the International Confederation of Free Trade Unions (ICFTU) submitted comments on the application of the Convention in a communication dated 10 August 2006. In a general way, the ICFTU refers to some matters that the Committee has already raised and to difficulties in the procedure to call a strike.

Article 3 of the Convention. The Committee notes that section 198F of the new Draft Amendment Bill (2006) provides access to the enterprise (in order to communicate with management, recruit members or perform other trade union functions) only to an authorized officer or official of a trade union that represents more than 35 per cent of the employees. The Committee recalls that the right of trade union officers to have access to places of work and to communicate with management is a basic tenet of freedom of association that should be open to all trade unions, in particular, so that trade unions can communicate with workers in order to apprise them of the potential advantages of unionization (see General Survey on freedom of association and collective bargaining, 1994, paragraph 128). The Committee considers that the workers’ freedom of choice would be jeopardized if the distinction between the most representative and minority unions results, in law or in practice, in granting privileges such as to influence unduly the choice of organization by workers (see General Survey, op. cit., paragraph 98). The Committee therefore requests the Government to indicate whether it has considered the practical effect that such a provision may have on the choice of workers of their trade union and to keep it informed in this respect.

The Committee further notes that section 198G(1) of the Labour Code (introduced by section 41 of the Draft Amendment Bill) provides that the members of a registered trade union, which represents more than 35 per cent of the employees of an employer that employs ten or more employees, are entitled to elect union representatives. It appears therefore that the members of minority trade unions cannot vote and run for election as workplace representatives. The Committee considers that an advantage, such as the right to participate either as candidates or voters in the election of workplace representatives accorded to the union by reason of the extent of its representativeness, is of a nature to influence unduly the choice of the workers in respect of the organization to which they wish to belong. Therefore, the Committee requests the Government to amend section 198G(1) so as to allow all workers to participate either as candidates or voters in the election of workplace representatives.

The Committee also notes that section 51 of the Draft Amendment Bill (amending section 232(5) of the Labour Code) provides that any strike in pursuance of a trade dispute that threatens the continuance of any essential service shall be unprotected. Because this new text seems to indicate that a strike may be considered as unprotected retroactively, from the moment it started, in cases where the Labour Commissioner of Labour Court find that the strike concerned an essential service, the effect is to place the burden upon the workers to decide whether a strike would fall within the scope of an essential service or not, before this issue is decided by the Labour Commissioner or the Labour Court. This is particularly important in light of the fact that workers may be dismissed or incur liability in tort not only for participating in an unprotected strike but also for any conduct in contemplation or furtherance of an unprotected strike (new section 231 of the Labour Code introduced by section 50 of the Draft Amendment Bill). Thus, in order to ensure predictability and security of law as to whether a particular service is essential or not, the Committee requests the Government to consider amending or supplementing the law by adding a list of specific services which are considered to be essential, i.e. services, the interruption of which might endanger the life, personal safety or health of the whole or part of the population (see General Survey, op. cit., paragraph 159). Alternatively, section 232(5) should provide that a strike becomes unprotected only if it continues after the Labour Court has decided that it concerns an essential service.

The Committee recalls that it had previously noted with concern section 19 of the Public Services Act, 2005, according to which public officers were prohibited from engaging in strikes and requested information detailing the precise categories of workers restricted in their right to strike under this Act. The Committee notes the Government’s indication that the restriction on the right to strike applies to all workers in the public service. The Committee further notes the Government’s statements indicating that teaching staff employed in private schools and certain other learning institutions such as the National University of Lesotho and the Lerotholi Polytechnic are excluded from these restrictions. In these circumstances, the Committee once more emphasizes that the prohibition of the right to strike in the public service can only be limited to public servants exercising authority in the name of the State (see General Survey, op. cit., paragraph 158). Therefore, the Committee again requests the Government to take the necessary measures in order to amend section 19 of the Public Services Act, 2005, so as to bring it into conformity with the Convention.

The Committee further recalls that its previous comments concerned the need to establish compensatory guarantees for those groups of public servants for which the prohibition of the right to strike would be justified. The Committee notes that the Government makes general reference to the language of the legislation and, more specifically, to sections 17-20 of the Act. The Committee once again points out that section 17 only provides for non-binding conciliation and recalls that workers who may be deprived of the right to strike as a means “of defending their socio-economic and occupational interests should be afforded compensatory guarantees, for example conciliation and mediation procedures leading, in every deadlock, to arbitration machinery seen to be reliable by the parties concerned. It is essential that workers be able to participate in determining and implementing the procedure, which should furthermore provide sufficient guarantees of impartiality and rapidity; arbitration awards should be binding on both parties and, once issued, should be implemented rapidly and completely” (see General Survey, 1994, op. cit., paragraph 164). Therefore, the Committee once again requests that the Government take the necessary measures to establish compensatory guarantees, in particular arbitration machinery for those workers who may be deprived of the right to strike, and keep it informed as to its progress in this regard.

Articles 5 and 6. The Committee previously requested the Government to ensure that public officers’ associations established under the Act are guaranteed the right to establish federations and confederations and affiliate with international organizations. As no information was provided by the Government in this respect, the Committee reiterates its previous request.