Solicitud directa (CEACR) - Adopción: 2003, Publicación: 92ª reunión CIT (2004)

The Committee takes note with interest of the Government’s first report. It also takes note of the provisions of the draft Industrial Relations Act of 2003 presently debated before Parliament. It wishes to raise a certain number of points concerning the application of the following Articles of the Convention.

Article 2 of the Convention. Right of workers, without distinction whatsoever, to establish and join organizations of their own choosing and without previous authorization. The Committee notes that according to the Government’s first report, the legislation contains no provision with respect to specific categories of "salaried or independent workers". It further notes that article 47 of the Constitution provides generally for the right of every person to belong or not to belong to an industrial organization. It also notes that the Industrial Relations Act applies to the State and its employees.

The Committee notes, however, that section 35(2)(b) of the Industrial Organizations Act states that a person who "is of general bad character is not qualified for admission as a member of an industrial organization". Such requirement is vague and subjective and is not in conformity with the right of every worker, without distinction whatsoever, to join an organization. The same applies to section 98(2)(b) of the new draft Industrial Relations Act of 2003, which is identical to the above provision. The Committee requests the Government to repeal such reference in the Industrial Organizations Act and in the draft Industrial Relations Act so as to bring its legislation into conformity with the Convention.

Registration formalities. The Committee takes note of the information contained in the Government’s report with respect to the need for all organizations to be registered within the first three months of their establishment. Section 22(1)(g) of the Industrial Organizations Act provides that the registrar may refuse to register an organization when "some other industrial organization, whether registered or the subject of an application for registration, is sufficiently representative of the whole or a substantial proportion of the interests in respect of which the applicants seek registration of an industrial organization". This provision is contrary to the right of workers and employers to establish and join organizations of their own choosing. The same applies to section 86(1)(g) of the new draft Industrial Relations Act of 2003, which is identical to the above provision. The Committee requests the Government to repeal subsection (1)(g) of section 22 of the Industrial Organizations Act and section 86(1)(g) of the draft Industrial Relations Act so as to bring its legislation into conformity with the Convention.

The Committee further notes that section 55 of the Industrial Organizations Act concerns prohibited payments. Subsection (2) provides that an injunction may be granted to restrain any unauthorized or unlawful expenditure of the funds of an industrial organization. Subsection (3) refers in this respect to a cancellation order of the organization’s registration. In this respect, the new draft Industrial Relations Act of 2003 contains the same provision at section 118 and subsection (3) is clearer on the question of cancellation: "in the course of an application under subsection (2), the national court may, on its own motion, order that the certificate of registration of the organization be cancelled". The Committee considers that such an extreme penalty as cancellation of an organization’s registration in this case violates the rights of workers to form and join organizations of their own choosing. It therefore requests the Government to amend this provision so as to ensure that organizations will be not be dissolved for having contemplated or made a prohibited payment as understood in this section.

Article 3. Right of workers’ and employers’ organizations
to organize their administration and activities and to
formulate their programmes

Election of representatives. Section 39(1)(b) and (d) of the Industrial Organizations Act states that a person who is not actually engaged in an industry or occupation with which the organization is directly concerned and who is not a member of the organization, unless the registrar at his discretion so permits, is not entitled to be an officer of an industrial organization. In this respect, the new draft Industrial Relations Act of 2003 contains the same provision at section 102(1)(b) and (d). The Committee recalls that provisions requiring members of trade unions to belong to the occupation concerned, coupled with a requirement that the officers of the organization be chosen from among the members, infringe the organization’s right to elect representatives in full freedom by preventing qualified persons, such as full-time union officers or pensioners, from carrying out union duties or by depriving unions of the benefit of the experience from among their own ranks. In order for the Government to bring its legislation into conformity with the Convention, it would be desirable to make it more flexible, either by admitting as candidates persons who have previously been employed in the occupation concerned, or by exempting from the occupational requirement a reasonable proportion of the officers of an organization (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 117). The Committee therefore requests the Government to amend such provisions accordingly.

Removal of trade union officers. Section 39(4) of the Industrial Organizations Act states that "the registrar may, by order, remove from the office the secretary or treasurer of an industrial organization who is, in his opinion, not capable of performing effectively the duties of his office". Despite the fact that such decision can be appealed before the national court according to section 70, the Act does not lay down any specific criteria justifying such removal. The new draft Industrial Relations Act of 2003 contains the same provision at section 102(5). The Committee recalls that any removal of trade union officers which is not the result of an internal decision of the trade union, a vote by members or normal judicial proceedings, seriously interferes in the exercise of the trade union office to which the officers have been freely elected by the members of their trade unions (see General Survey, op. cit., paragraph 122). The Committee considers in this respect that it is not for the public authorities to judge the effective performance of trade union officers. It therefore requests the Government to repeal section 39(4) of the Industrial Organizations Act and to ensure the deletion of section 102(5) of the draft Industrial Relations Act of 2003 so that the public authorities shall refrain from any interference in the internal administration of industrial organizations.

Investigation and request for information. Section 5(1) of the Industrial Organizations Act provides that an inspector has such duties, and shall make such investigations and reports in relation to the observance of this Act, as the department head directs. Section 40(1) provides that "the registrar may require the executive committee or an officer of an industrial organization to furnish such information as the registrar thinks necessary for that purpose". In case the officer does not comply with this demand, he is guilty of an offence and subject to a fine not exceeding K200 (subsection (2)). Similar provisions are included at section 58 (requirement of detailed accounts) and section 60(1)(b) (inspection of accounts). Section 22 of the Industrial Relations Act is identical to section 8(1) of the abovementioned Act. Furthermore, section 23(1) states that the inspector may carry out his duties at all reasonable times and with or without notice to any person. The new draft Industrial Relations Act of 2003 contains the same provision at sections 103, 121 and 123.

The Committee recalls that there is no infringement of the right of organizations to organize their administration if the supervision is limited to the obligation of submitting periodic financial reports. Problems of compatibility with the Convention arise when the administrative authority has the power to examine the books and other documents of an organization, conduct an investigation and demand information at any time or is the only body to exercise control (see General Survey, op. cit., paragraphs 125 and 126). The Committee therefore requests the Government to amend these provisions so as to ensure that the powers vested on the inspector and the registrar do not amount to interference in the industrial organization’s administration.

The right to strike. The Committee notes that section 30 of the Industrial Relations Act contains special provisions for certain disputes. This section applies to an industrial dispute that, in the opinion of the Head of State, is of "such importance that, in the public interest, it should be dealt with as provided for in this section". It further provides that "The Head of State may at any time refer an industrial dispute to which this section applies to a tribunal for decision and the making of an award." The Committee considers that providing for compulsory arbitration seriously limits the means available to trade unions to further and defend the interests of their members, as well as their right to organize their activities and to formulate their programmes and is not compatible with Article 3 of the Convention.

The Committee requests the Government to provide more information on the use of this procedure in practice, in particular the number of times industrial disputes have been referred to a tribunal during the period covered by the present report and to specify the types of disputes in question. It further requests the Government to provide information on the effective exercise of the right to strike in the country.

Finally, with respect to the ongoing legislative process concerning the new Industrial Relations Act of 2003, the Committee trusts that account will be taken of the abovementioned comments. The Committee requests the Government to keep it informed of developments and to provide a copy of the Act as soon as adopted.

The Committee also requests the Government to provide a copy of any relevant legislation in connection with the application of the provisions of the Convention and, in particular, any law which regulates or concerns the right to strike.