Direct Request (CEACR) - adopted 2008, published 98th ILC session (2009)

The Committee notes that the Government’s report has not been received. It further notes the comments submitted by the International Trade Union Confederation (ITUC) in a communication dated 29 August 2008, which principally refer to matters previously raised by the Committee.

Zanzibar

In respect of Zanzibar, the Committee notes the provisions of the Labour Relations Act of 2005 (LRA), which repeals and replaces the Trade Unions Act of 2001 and the Industrial Court Act of 1994. The LRA applies to both the public and private sectors.

Articles 1, 2 and 3 of the Convention. Protection against acts of anti-union discrimination and interference. The Committee notes with interest that section 5 of the LRA prohibits acts of anti-union discrimination on the basis of trade union membership or activities. Section 8 similarly prohibits acts of interference, by an employer or employers’ organization, in the affairs of a trade union. The Committee further notes that under section 11 of the LRA, claims of anti-union discrimination or interference may be brought before the Labour Court, which in respect of such actions is empowered to make such order as it deems necessary, including reinstatement, the restoration of any benefit or advantage to the party concerned, the payment of compensation for damages suffered and, where appropriate, of a punitive indemnity.

Article 4. Trade union recognition for purposes of collective bargaining. The Committee notes with interest that the LRA contains several provisions designed to promote free and unfettered collective bargaining. Section 55 guarantees the right to collectively bargain over not just the terms and conditions of employment, but over the regulation or determination of any matter deemed necessary by the parties concerned. Section 56 provides that bargaining may take place at the enterprise, industry, sectoral and national levels, and furthermore section 59 establishes the duty to bargain in good faith on the part of both employers’ and workers’ organizations.

The Committee further observes that, according to section 57(1), a “representative trade union” shall be accorded exclusive bargaining agent status. Section 57(2) further provides that in order to be designated as representative, the union concerned must be registered and represent “the majority of employees at the appropriate bargaining level”. The Committee recalls, in this respect, that a system wherein a trade union must receive the support of 50 per cent of the members of a bargaining unit to be recognized as a bargaining agent denies the possibility of bargaining to a majority union which fails to secure this absolute majority (see 1994 General Survey on freedom of association and collective bargaining, paragraph 241). Accordingly, the Committee requests the Government to take the necessary measures to amend section 57(2) so that if no union covers more than 50 per cent of the workers, the minority unions in the bargaining unit are not denied  collective bargaining rights, at least on behalf of their members.

The Committee notes that under section 57(3) of the LRA, a trade union seeking to be recognized as a representative trade union shall “raise the issue with the employer”. Section 57(4) additionally provides that, where the employer does not recognize the trade union, or if there is any objection raised by another trade union, the trade union seeking representative status shall refer the matter to the disputes resolution authority for determination (the disputes resolution authority, furthermore, is defined under section 3(1) as the “mediator, arbitrator or Court, whichever has the authority in respect of a particular dispute”). In this regard, the Committee recalls that in order to encourage the harmonious development of collective bargaining and avoid disputes, it would be desirable to draw up and apply objective procedures which make it possible to determine the most representative trade unions for the purpose of collective bargaining when it is not clear which trade unions the workers would like to represent them (see General Survey, op. cit., paragraph 242). With reference to the principle cited above, the Committee requests the Government to provide full information on the procedures and criteria by which the disputes resolution authority, in cases brought before it under section 57(4) of the LRA, determines representative trade union status.

Article 6. The Committee notes that section 54(2) of the LRA excludes from the right to bargain collectively not only public officers actually engaged in the administration of government affairs, which is not in contravention of the Convention, but also the following categories of employee: “senior officers who are actually in the management of the affairs of the employee”, and “any other category that the Minister may, in consultation with the Labour Advisory Board, by notice in the gazette exclude”.

In respect of these exclusions, the Committee recalls that only the armed forces and the police, public servants directly engaged in the administration of the State, and workers in essential services in the strict sense of the term may be denied the right to bargain collectively. Accordingly, the Committee requests the Government to take the necessary measures to amend section 54(2)(b) of the LRA, so as to guarantee to managerial employees the right to bargain collectively, and to indicate the categories of employee excluded from the right to bargain collectively by the Minister under section 54(2)(c).

Tanzania

Finally, the Committee requests the Government to provide full information in its next report on all of the following matters raised in its previous comments concerning the United Republic of Tanzania, which it repeats as follows:

1. Article 4. Scope of collective bargaining in the public service. The Committee had noted the draft Public Service (negotiating machinery) Bill, section 4 of which provided for the establishment of a Joint Staff Council (“the Council”) comprised of eight persons working in the public service trade unions, eight representatives of the Government, and two persons – the Chairperson and Vice-Chairperson – appointed by the President.

The Committee had noted that section 6(1) of the draft Bill provided for the functions of the Council, and that section 6(1)(d) in particular empowered it “to negotiate on matters relating to the terms and conditions of service of public employees generally or to specified categories of employee”. The Committee noted, however, that under section 6(2)(a) the Council did not have competence over matters relating to minimum wages, or to matters for which the Minimum Wage Board or Wages Council has been appointed.

The Committee had thus observed that it was unclear whether section 6(2)(a) prevented the Joint Staff Council from negotiating wages in general, or just the minimum wage. It recalled, in this connection, that the special characteristics of the public service required some flexibility in applying the principle of collective bargaining, so that legislative provisions, which allowed Parliament or the competent budgetary authority to set upper and lower limits for wage negotiations, are compatible with the Convention, provided that a significant role is left to collective bargaining, and that the authorities respect the agreement concluded (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 263). The Committee once again requests the Government to provide clarifications on the scope of the Council’s mandate to negotiate the wages of public service employees under sections 6(1)(d) and 6(2)(a). With regard to its previous request to provide information on the Minimum Wage Board and the Wages Council, and to indicate in particular whether these bodies make provision for the representation and input of public employees’ organizations in the wage-fixing process, the Committee notes the Government’s indication that these boards are made up of Government, employers’ and workers’ representatives to safeguard the interests of all constituents.

The Committee had further noted that under section 6(2)(b) of the draft Public Service Bill, the Council was not competent over matters concerning the appointment or non-appointment, disciplinary control, or removal from office of any individual public servant or employee. In this connection the Committee had requested the Government to consider amending section 6(2)(b) so as to grant to organizations of public employees not engaged in the administration of the State, the right to collectively bargain over the abovementioned issues or, at a minimum, on those aspects concerning the fairness of any related proceedings. The Committee notes that the Government reiterates its commitment to observe the tripartite principles in employment and labour issues and indicates that in so doing, it will facilitate the enhancement of the capacity of workers’ unions in the public sector so as to enable effective negotiations and participation in the council. The Committee once again requests the Government to keep it informed of the measures taken or envisaged to this end, including the amendment of section 6(2)(b) of the draft Public Service Bill.

Generally, the Committee recalls that while tripartism is particularly appropriate for regulation of questions of a large scope (drafting of legislation, formulating labour policies), the principle of tripartism should not substitute the principle of autonomy of workers’ organizations and employers (or their organizations) in collective bargaining on conditions of work. The Committee recalls that in the public sector, free and voluntary bargaining with a view to the regulation of terms and conditions of employment should be, in general, conducted between workers’ organizations and public employers. The Committee requests the Government to keep it informed of the measures taken to ensure the application of this principle.

2. The Committee notes that the Government failed to provide information on certain points previously raised, which read as follows:

Administrative approval of collective agreements. The Committee notes that, where an agreement is reached by the Joint Staff Council in relation to any dispute regarding the terms and conditions of service of public employees, section 11(2)(b) of the draft Public Service Bill empowers the Minister to make such modifications to the agreement as the Chairperson and Vice-Chairperson of the Council find necessary and consent to. If the Chairperson and Vice-Chairperson do not consent to the Minister’s modifications, section 11(4) provides that the matter shall be regarded and treated as a dispute and referred by the Minister back to the Council for further negotiations. Under these circumstances, the Committee recalls that legislation providing that agreements must be submitted for approval to the administrative authority before coming into force is not compatible with Convention No. 98, unless it merely stipulates that approval may be refused 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, op. cit., paragraph 251). The Committee therefore requests the Government to amend section 11 of the draft Public Services Bill so as to remove the Minister’s power to modify collective agreements concluded by the Joint Staff Council. Noting further that section 11 refers only to negotiated agreements for disputes regarding terms and conditions of service, the Committee asks the Government to provide clarification on the scope of the Joint Staff Council’s mandate to negotiate matters that are not subject to dispute.

Duration of collective agreements. The Committee notes that section 11(5) of the draft Bill states that “every award made [i.e. every agreement accepted by the Minister] shall be final and binding upon the Government and the operational service employees to whom the agreement relates for a period of 12 months beginning on the date on which the award was made”. Section 11(6), moreover, provides that no matter already covered by an agreement shall be discussed by the Council or placed on the Council’s agenda for a period of 12 months from the date on which the agreement was made. The Committee considers that legal provisions setting forth in a rigid manner the lengths of time negotiated agreements shall be in force for, and during which negotiations on the matters contained in these agreements may not take place, run counter to the principle of free collective bargaining. Accordingly, it asks the Government to amend section 11(5) of the draft Bill so as to allow the interested parties to negotiate a longer duration for the agreements they reach, and to amend section 11(6) so as to not prohibit the parties, if they wish, from renegotiating matters already covered by agreements.

Compulsory arbitration. The Committee notes that several provisions of the draft Public Service Bill comprise a system of compulsory arbitration. Section 12 of the draft Public Service Bill provides that, where the Joint Staff Council is unable to reach agreement on any dispute, the Chairperson and Vice-Chairperson shall submit a report to the Minister containing the minutes of the Council’s deliberations and a memorandum on the subject matter of the deliberations. The Minister may then refer the dispute back to the Council for further negotiation under section 13(a), or refer the dispute to the court under section 13(b). Section 15 provides that where the Minister has referred the dispute to the court, the court shall consider the matter and submit a report in respect thereof to the Minister. Section 17(1) provides that the Minister may then submit the report, together with any comments he may wish to make thereon, to the President of the Joint Staff Council, who, under section 17(2) may then issue an award on the dispute that is binding for a period of 12 months (section 19). With respect to the above provisions, the Committee recalls that compulsory arbitration is acceptable only for: (1) workers employed in essential services in the strict sense of the term, that is to say services whose interruption would endanger the life, personal safety or health of the whole or part of the population; and (2) public employees engaged in the administration of the State. Its imposition, at the discretion of the public authorities and leading to a final award which is binding upon the parties concerned, is otherwise not compatible with the principle of the voluntary negotiation of collective agreements provided for in Article 4 of the Convention (see General Survey, op. cit., paragraphs 254–259). The Committee notes, moreover, that the ICFTU confirms these restrictions on collective bargaining to fix the terms of employment of public service employees. In these circumstances, the Committee requests the Government to amend the above-noted provisions so as to remove compulsory arbitration for public employees who are not engaged in the administration of the State.