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

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Montserrat

Other comments on C087

Direct Request

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The Committee takes note of the observations of the International Organisation of Employers (IOE) received on 1 September 2016, which are of a general nature.

The Committee takes note of the adoption of the Labour Code 2012 and observes that a number of provisions raise issues of compatibility with the Convention:

Article 3 of the Convention. Right of organizations to freely elect representatives, organize activities and formulate their programmes.

-Section 160 sets out that a person under the age of 18, but above the age of 16, shall not be a member of the committee of management, trustee or treasurer of a trade union. Recalling that under the Code persons over the age of 16 may work and be members of a trade union, the Committee considers to be incompatible with the Convention the requirements that candidates for trade union office should have reached the age of 18.
-The definition of essential services in section 3 should not include port services, which cannot be considered as essential services in the strict sense of the term (that is, services “the interruption of which would endanger the life, personal safety or health of the whole of part of the population”). However, consideration might be given to ensuring that users’ basic needs are met or that facilities operate safely or without interruption through the introduction of a negotiated minimum service, as a possible alternative to a total prohibition of strikes. These minimum services should be defined and established with the participation of workers’ and employers’ organizations.
-Under section 22, any dispute arising generally out of the relationship between the employer and the employee may be referred by either party concerned to the Labour Commissioner for settlement, and where the Labour Commissioner fails to achieve a settlement within 30 days or such longer period as the parties may agree, the Labour Commissioner shall refer the dispute to the Labour Tribunal for determination. This referral would constitute a form of compulsory arbitration. The Committee recalls that compulsory arbitration to bring an end to a collective labour dispute, including a strike, is only acceptable in the case of disputes concerning public servants exercising authority in the name of the State; in conflicts in essential services in the strict sense of the term; or in situations of acute national or local crisis (only for a limited period of time and to the extent necessary to meet the requirements of the situation). However, arbitration accepted by both parties (voluntary) is always legitimate.

Article 4. No dissolution or suspension of organizations by administrative authority. The Committee observes that the Labour Code in its sections 145, 148 and 154 affords the Registrar under certain circumstances (lack of provision of financial information, defunct organizations or proof that the union has wilfully and after notice violated the provisions of the Code) the power to suspend, withdraw or cancel union registration, including the imposition of penalties for its officers continuing its active operations after withdrawal or cancellation of the trade union certificate of registration. The Committee further observes that sections 145 and 148 provide for the possibility to appeal the Registrar’s decision to the High Court, while section 154 is silent in this regard. The Committee must recall that the suspension, withdrawal or cancellation of trade union registration constitute extreme forms of interference by the authorities in the activities of organizations and should therefore be accompanied by all the necessary guarantees. This can only be ensured through a normal judicial procedure, which should also have the effect of a stay of execution. Therefore, an appeal to the court should be possible against all suspension, withdrawal or cancellation determinations by the Registrar and the appeal should have the effect of a stay of execution of such determinations until a judicial ruling is handed down on the matter.

The Committee requests the Government to take all necessary measures to bring the Labour Code into conformity with the Convention taking into account the foregoing comments, and to supply information on relevant developments, including sending a copy of any Regulations issued pursuant to section 157 of the Code.