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

The Committee takes note of the Government’s report. The Committee also takes note of the observations communicated by the International Confederation of Free Trade Unions (ICFTU) of 2002.

Articles 3 and 10 of the Convention. Right of organizations to organize their activities and to further and defend the interests of their members. With regard to its previous comments and the observation communicated by the ICFTU concerning certain limitations or restrictions of the right to strike which go beyond the limits permitted under the Convention, the Committee notes that the Government’s report does not provide any information in this respect.

The Committee takes note of the observations communicated by the ICFTU according to which the definition of essential services is excessively wide. The Committee recalls that in its previous comments it had taken note of the Government’s intention to revise the legislation, in particular, by introducing the concept of minimum negotiated services, and had requested the Government to keep it informed of progress made in bringing the following provisions of the Industrial and Labour Relations Act into conformity with the Convention:

-  section 78(6) to (8) under which a strike can be discontinued if it is found by the court not to be "in the public interest";

-  section 100 which refers to exposing property to injury;

-  section 107 which prohibits strikes in essential services and empowers the Minister to add other services to the list of essential services in consultation with the Tripartite Consultative Labour Council.

The Committee once again recalls that the right to strike can only be limited or restricted in specified circumstances, namely in the case of an acute national crisis or in essential services in the strict sense of the term, namely those services, the interruption of which would endanger the life, personal safety or health of the whole or part of the population. The Committee requests the Government to keep it informed of the progress made in the legislative revision with respect to these sections of the Industrial and Labour Relations Act.

The Committee takes note of the ICFTU’s comments according to which the right to strike is subject to numerous procedural requirements such that it is next to impossible for workers to hold a legal strike. The Committee recalls that its previous comments had related to section 76 of the Industrial and Labour Relations Act, which establishes no time frame in which conciliation should end before a strike can take place. The Committee once again recalls that procedures should not be so slow or complex that a lawful strike becomes impossible in practice or loses its effectiveness. The Committee further notes that its previous comments related to section 78(1) of the Industrial and Labour Relations Act as interpreted by a decision of the Industrial Relations Court according to which, either party may take an industrial dispute to court. The Committee once again recalls that if the right to strike is subject to restrictions or a prohibition, workers should be afforded compensatory guarantees, for example conciliation and mediation procedures leading, in the event of a deadlock, to arbitration machinery seen to be reliable by the parties concerned; recourse to arbitration should be at the request of both parties or in the case of strikes occurring in essential services in the strict sense of the term or in an acute national crisis. The Committee once again urges the Government to amend sections 76 and 78(1) of the Industrial and Labour Relations Act in accordance with the above.

With regard to its previous comments concerning section 107 of the Industrial and Labour Relations Act which empowers a police officer to arrest without a warrant a person who is believed to be striking in an essential service or who is violating section 100 (exposing property to injury), and which imposes a fine and up to six months’ imprisonment, the Committee once again emphasizes that sanctions for strikes should not be disproportionate to the seriousness of the violation and requests the Government once again to amend these provisions so as to bring them into full conformity with the Convention, in particular, by ensuring that no worker can be imprisoned for participation in a peaceful strike.

In addition, the Committee is addressing a request on certain other points directly to the Government.