Direct Request (CEACR) - adopted 2016, published 106th ILC session (2017)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - South Sudan (Ratification: 2012)

Other comments on C098

Direct Request

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The Committee takes due note of the Government’s first report, of the adoption of the Workers Trade Unions Act, 2013 (WTUA) and of the elaboration of the Labour Bill, 2012 (LB). The Committee invites the Government to provide the latest version of the LB and to inform on the current status of the LB and on the participation of the social partners in its elaboration.

Article 1 of the Convention. Adequate protection against acts of anti-union discrimination. The Committee notes that: (i) section 28(1) of the WTUA prohibits dismissal, downgrading, compulsory retirement and any other action prejudicial to the worker for reasons related to activity in a union or federation; (ii) section 27(1) prohibits transfer of any employee who stands for election to a union committee; and (iii) section 27(2) prohibits imposition of sanctions on members of a union’s or a federation’s committee for reasons related to committee membership. The Committee further notes that section 6 of the LB prohibits direct or indirect discrimination against a worker or job applicant on the basis of trade union membership or trade union activities, and that section 74(3) explicitly prohibits anti-union dismissals. While observing that the WTUA offers partial protection against acts of anti-union discrimination, the Committee requests the Government to take the necessary measures to ensure that national legislation grants a more comprehensive protection against all acts of anti-union discrimination encompassing job applicants, workers and trade union committee members, on the basis of both trade union membership and legitimate trade union activities in recruitment and during employment.

Article 2. Protection against acts of interference. The Committee notes the Government’s indication that employers’ and workers’ organizations enjoy the right to freely organize themselves without the Government’s interference in line with article 25(1) of the Transitional Constitution, and that this protection will also be spelled out in the LB and its regulations. While observing that section 28(2)(b) of the WTUA restricts employers’ intervention in trade union affairs, the Committee notes that it does not proscribe intervention of trade unions in employer’s organizations, and that the LB does not tackle either of these issues. The Committee requests the Government to take the necessary measures to ensure that the legislation explicitly prohibits intervention by workers’ and employers’ organizations against each other.

Article 3. Machinery to ensure effective protection. The Committee notes that the WTUA does not provide for an appeal procedure and sanctions against acts of anti-union discrimination and interference. The Committee further notes that the LB provides for the establishment of a labour inspectorate, labour commissioner, labour advisory council, commission for conciliation, mediation and arbitration and a labour court (sections 16–38), and specifies that anti-union discrimination and anti-union dismissals constitute an offence (sections 6(8) and 74(5)) and that reinstatement and compensation can be ordered for unfair dismissal (section 84(1)). It also notes that section 132(2) of the LB provides for the issuance of regulations establishing penalties that may be imposed by the Labour Court upon finding of an offence under the LB. The Committee requests the Government to take the necessary measures to ensure that national legislation provides for effective and sufficiently dissuasive sanctions for acts of anti-union discrimination and interference, including for anti-union dismissal, separate from other cases of unfair dismissal. The Committee also invites the Government to provide information on the protection of workers against acts of anti-union discrimination and interference in practice, including the number of complaints filed with the competent authorities, the outcome of investigations and court proceedings and their average duration, in both the public and private sectors.

Article 4. Promotion of collective bargaining. The Committee notes that the LB provides for rules on the initiation of collective bargaining, obligation to negotiate in good faith, content of collective agreements, their registration and legal effect, as well as disputes in this regard (sections 100–107). It further notes that section 98 establishes a system under which a trade union that represents the majority of the workers in a bargaining unit is entitled to recognition as the exclusive bargaining agent, which is to be determined by the employer or, under certain circumstances, by the Commission for Conciliation, Mediation and Arbitration. With a view to effectively promoting the exercise of collective bargaining, the Committee emphasizes the importance of ensuring that: (i) the determination of representativeness is carried out in accordance with a procedure that offers every guarantee of impartiality, by an independent body that enjoys the confidence of the parties; and (ii) the right to collective bargaining can still be exercised by the existing workers’ organizations in the absence of a majority union. The Committee therefore requests the Government to provide further details on: (i) the criteria and procedure to determine the exclusive bargaining agent; (ii) the right of other organizations to demand a new election after a reasonable period; (iii) the possibility of creating groups of trade unions for bargaining purposes; and (iv) collective bargaining rights of minority unions where no union meets the requirements to become the exclusive bargaining agent.

Article 6. Civil servants not engaged in the administration of the State. The Committee notes that, while section 6 of the WTUA exempts from its scope of application: certain categories of workers (any disciplined force, including the army, police, prison service, fire service and wildlife forces; national security forces; constitutional post holders; judges and justices; public attorney and legal advisors and senior members of the diplomatic service), the LB is applicable to all employees and workers other than those subject to the Sudan People’s Liberation Army Act, 2009 (section 4(2)). The Committee recalls that while members of the armed forces, the police and civil servants in the administration of the State can be excluded from the application of the Convention, all other categories of workers, including prison, fire and wildlife services, as well as civilian personnel in the armed forces, should benefit from the rights granted by it. The Committee requests the Government to take the necessary measures to ensure that national legislation guarantees the rights provided in the Convention to the civil servants not engaged in the administration of the State.

Application of the Convention in practice. The Committee invites the Government to provide information on the measures taken to promote collective bargaining and on the number of collective agreements concluded, specifying the sectors and the number of workers covered.