Solicitud directa (CEACR) - Adopción: 2009, Publicación: 99ª reunión CIT (2010)

The Committee notes the adoption of Labour Act No. 5 of 2007 replacing the Labour Act of 1990 and wishes to raise in this respect the following points.

Article 2 of the Convention. Right of employers and workers to establish and join organizations of their own choosing without previous authorization. Domestic workers and prison officers. The Committee regrets that the Labour Act of 2007 continues to exclude civil servants, prison officers and domestic workers from its scope (sections 3(2)(a), (c) and (d), respectively). With regard to civil servants, the Committee notes the Government’s statement that article 25(e) of the Gambian Constitution guarantees the right of every citizen (including public servants) of freedom of association and that a proposal for the amendment of section 3(2)(a) of the Labour Act would be made in due course. With regard to prison staff, the Committee once again recalls that the functions exercised by prison guards are different from the regular functions of the army and the police and do not justify their exclusion from the right to organize (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 56). With regard to domestic workers, the Committee notes the Government’s statement that proposals would be made by the Ministry of Trade, Industry and Employment to the Attorney-General’s Chambers to amend section 3(2)(d) of the Act. The Committee requests the Government to indicate the measures it has taken to ensure that civil servants, domestic workers and prison officers enjoy the right to establish and join organizations of their own choosing.

Minimum membership requirement. The Committee regrets to note that the new Labour Act maintains a minimum membership requirement of 50 workers for the registration of a trade union (section 96(4)(a)), whereas it had previously requested the Government to lower it to a reasonable level. The Committee notes the Government’s statement that it is proposing an amendment to section 96(4)(a) of the Labour Act to reduce the minimum membership requirement to 25 workers. The Committee requests the Government to inform it of developments in this respect.

Article 3. Right of employers’ and workers’ organizations to organize their administration and to formulate their programmes. The Committee notes with regret that the new Labour Act does not reflect its previous comments with regard to the right of the registrar to verify employers’ and workers’ organizations when he or she “is unable to ascertain with certainty the absence of irregularity or fraud” (section 104(1)(b)) and that failure to provide the registrar with any book is subject to a fine and even imprisonment (section 104(5)). It further notes with regret that the new Labour Act maintains the right of the registrar to institute civil proceedings in order to secure payment of arrears in trade union dues (sections 104(2)(b) and 104(7)(c)). The Committee recalls that in order to verify the accounts of employers’ and workers’ organizations, authorities must have serious grounds for believing that the actions of an organization are contrary to its rules or the law or that there must be a complaint or allegations of embezzlement and that both the substance and the procedure of such verifications should always be subject to review by the competent authority affording every guarantee of impartiality and objectivity (see General Survey, op. cit., paragraph 125). Furthermore, the Committee considers that the payment of arrears is an internal matter of organizations and the administrative authorities should not have the power to request information thereon and to initiate civil proceedings for the payment of such arrears. The Committee therefore once again requests the Government to amend section 104(1)(b) of the Labour Act, so as to ensure that the registrar has the power to verify the accounts of employers’ and workers’ organizations only in exceptional cases where there is evidence of irregularity in the handling of finances and that the substance and procedure of such verifications is subject to judicial review. It further requests the Government to amend sections 104(2)(b) and 104(7)(c) so as to ensure that there is no interference by the administrative authorities with regard to the payment of arrears in trade union dues.

The Committee notes that section 133(1) of Labour Act provides the possibility of check-off payments in respect of union membership dues only for sole bargaining agents and once again requests the Government to consider taking measures to promote the provision of check-off facilities for all registered unions.

Finally, the Committee recalls that it had previously requested the Government to provide information regarding the designation of essential services. It notes that section 140(1) of the Labour Act defines essential services as services the interruption of which would endanger the life, personal safety or health of the whole or part of the population. It further notes the Government’s indication that health facilities, police, fire and ambulance services, prison services, security forces, water and electricity services, and radio and telecommunication services are examples of essential services. The Committee considers that radio services cannot be considered essential services in the strict sense of the term. It recalls that in order to avoid damages which are irreversible or out of all proportion to the parties, namely the users or consumers who suffer the economic effects of collective disputes, the authorities could establish a system of minimum service in other services which are of public utility rather than impose an outright ban on strikes, which should be limited to essential services in the strict sense of the term (see General Survey, op. cit., paragraph 160). The Committee requests the Government to indicate the procedure of designation of a particular service as essential.

The Committee urges the Government to take the necessary measures in order to amend the Labour Act so as to bring it into conformity with the Convention.