Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

The Committee notes the comments of 29 August 2008 by the International Trade Union Confederation (ITUC) on the application of the Convention. The Committee notes the Government’s report does not contain observations in relation to the ITUC’s 2007 comments. The Committee therefore again requests the Government to send its observations in relation to the ITUC’s comments of 2008 on acts of anti-union discrimination and the refusal to recognize a trade union, and also on the fact that there are no trade unions in the export processing zones. It also requests the Government to investigate these allegations, to ensure in the export processing zones the trade union rights provided for in the Convention and to provide information on any measures taken in this regard.

Article 4 of the Convention. The Committee recalls that several of its previous comments referred to the following matters:

–           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); and

–           the need to take measures to amend the legislation so that a ballot is made possible when 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.

The Committee notes that the Government indicates that the Ministry of Labour and Social Security indicates that notwithstanding these apparent stumbling blocks, the current provisions are necessary to maintain industrial harmony in the local context. The Committee, however, recalls once again that by ratifying the Convention, the State undertook to promote collective bargaining and that this implied granting collective bargaining rights to the most representative trade union or (jointly) trade unions. The Committee therefore hopes that the Government will take the necessary measures in the very near future to amend its legislation, lowering the percentage mentioned and allowing a ballot in cases of disputes concerning representativeness, so as to bring it into full conformity with the Convention as soon as possible. The Committee requests the Government to indicate in its next report any measures taken or contemplated in this regard.