Observación (CEACR) - Adopción: 2010, Publicación: 100ª reunión CIT (2011)

The Committee recalls that, for many years, it has been requesting the Government to take the necessary measures to amend several provisions of the Industrial and Labour Relations Act (ILRA) to bring it into conformity with the Convention. In its previous comments, the Committee had noted that a labour law review was on the agenda of the tripartite Consultative Labour Council. The Committee notes that the Industrial and Labour Relations (Amendment) Act No. 8 of 2008 has been adopted. The Committee, however, notes that most of the proposed amendments still remain unattended to and were not taken into account during the process of the labour law review. The Committee further notes that, according to the Government’s report, the concerns expressed by trade unions and employers’ associations, some of which were presented before the Parliamentary Committee on Economic, Social and Labour Affairs, have been referred to the Government for consideration. Finally, the Committee notes the Government’s indication that its previous comments will be taken into account in the future review of the Industrial and Labour Relations Act.

In these circumstances, the Committee must once again recall its comments and in particular that measures should be taken to bring the following provisions of the Industrial and Labour Relations Act (as amended by the Industrial and Labour Relations (Amendment) Act, 2008) (ILRA), into conformity with the Convention:

Article 2 of the Convention

–           section 2(e), which excludes from the scope of the Act, and therefore from the guarantees afforded by the Convention, workers in the prison service, judges, registrars of the court, magistrates and local court justices, and section 2(2), which accords the Minister discretional power to exclude certain categories of workers from the scope of the Act;

–           section 5(b) that provides that an employee can only become a member of “a trade union within the sector, trade, undertaking, establishment or industry in which the employee is engaged” since it limits trade union membership to workers in the same occupation or branch of activity. In this respect, the Committee recalls that such conditions may be applied to first-level organizations, on condition that these organizations are free to establish inter-professional organizations, and to join federations and confederations in the form and manner deemed most appropriate by the workers concerned;

–           section 9(3) in order to shorten the period of registration of a trade union which is currently at a maximum of six months, constituting a serious obstacle to the establishment of organizations and amounts to denial of the right of workers to establish organizations without previous authorizations;

Article 3 of the Convention

–           section 7(3) that allows a labour commissioner to prohibit a trade union officer from holding office in any trade union for a period of one year if, following the commissioner’s refusal to register the union, this union is not dissolved within six months. In this respect, the Committee recalls that having committed an act, the nature of which is not such as to call into question the integrity of the person concerned and is not such as to be prejudicial to the performance of trade union duties, should not constitute grounds for disqualification from trade union office;

–           section 21(5)(6) which confers to the Commissioner the power to suspend and appoint an interim executive board of a trade union, as well as to dissolve the board and call for a fresh election. In this respect, the Committee recalls that any removal or suspension 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. Provisions which permit the suspension and removal of trade union officers by the administrative authorities or under the provisions of legislation are incompatible with the Convention. Measures of this kind should be solely directed towards protecting the members of organizations and should only be possible through judicial proceedings. The law should lay down sufficiently precise criteria to enable the judicial authority to determine whether a trade union officer has committed acts warranting his suspension or removal; provisions, which are too vague or fail to comply with the principles of the Convention, do not constitute an adequate guarantee. The persons concerned should also enjoy all the guarantees of normal judicial procedures (see General Survey of 1994 on freedom of association and collective bargaining, paragraphs 122 and 123);

–           sections 18(1)(b) and 43(1)(a), under which a person, having been an officer of an employers’ or workers’ organization whose certificate of registration has been cancelled, may be disqualified from being an officer of a trade union if that person fails to satisfy the commissioner that she or he did not contribute to the circumstances leading to such cancellation;

–           section 78(4), which limits the maximum duration of a strike to 14 days, after which, if the dispute remains unsolved, is referred to the court. The Committee considers that such a restriction would seriously limit 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 formulate their programmes and is not compatible with Article 3 of the Convention;

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

–           section 78(1), under which, as interpreted by a decision of the Industrial Relations Court, either party may take an industrial dispute to court;

–           section 107, which prohibits strikes in essential services, defined too broadly, and empowers the Minister to add other services to the list of essential services, in consultation with the Tripartite Consultative Labour Council; and

–           section 107, which empowers a police officer to arrest, without any possibility of bail, a person who is believed to be striking in an essential service and which imposes a fine and up to six months’ imprisonment. The Committee recalls that no penal sanction should be imposed against a worker for having carried out a peaceful strike and therefore measures of imprisonment should not be imposed on any account. Such sanctions could be envisaged only where during a strike, violence against persons or property or other serious infringements of rights have been committed, and can be imposed pursuant to legislation punishing such acts. Nevertheless, even in the absence of violence, if the strike modalities had the effect of making the strike illegitimate, proportionate disciplinary sanctions may be imposed against strikers.

The Committee hopes that the future amendments will take into account the comments that it has been making for many years and that they will be adopted in the very near future following full and frank consultations with the social partners. The Committee requests the Government to provide information in its next report on any progress achieved in this respect and hopes that the amendments to the Act will be in full conformity with the provisions of the Convention.

ITUC comments. Finally, the Committee notes the comments made by the International Trade Union Confederation (ITUC) in communications dated 24 August 2010 and 29 August 2008, on the application of the Convention and in particular concerning the intimidation of strikers through police intervention. The Committee requests the Government to provide its observation thereon.