Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 324, Marzo 2001

1. 734. The New Zealand Trade Union Federation (NZTUF) presented a complaint of violations of freedom of association against the Government of New Zealand in a communication of 21 April 1999. The NZTUF forwarded additional information in communications dated 2 June and 3 August 1999. The trade union UNITE! expressed its support for the complaint in a communication of 2 June 1999.
2. 735. The Government forwarded its response to the allegations in a communication dated 28 September 2000.
3. 736. New Zealand has ratified neither the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), nor the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

1. 737. In its communication of 21 April 1999, the New Zealand Trade Union Federation (NZTUF) alleges that amendments made to the Social Security Act, 1964, violate ILO standards and principles concerning freedom of association and collective bargaining. In particular, the complainant alleges that the Social Security Amendment Act, 1998, and the Social Security (Work Test) Amendment Act, 1998, result in an unemployed worker being required to perform certain work in order to claim unemployment benefits or a "community wage", while being denied the status of employee, and thus denied the right to negotiate collectively or strike, and denied access to grievance procedures and specialized employment courts. It is also alleged that while these workers may join trade unions, those unions cannot further and defend the interests of their members, and are denied the right of access to workers at their place of work and to hold meetings at work.
2. 738. The complainant states that there is no inherent requirement in the work undertaken by community wage recipients that could justify their being denied the rights and protections of the law enjoyed by other workers, particularly those under the Employment Contracts Act, 1991, related to freedom of association, as well as legislation concerning basic employment standards such as the Holidays Act, 1987, the Minimum Wage Act, 1983, and the Wages Protection Act, 1983. The complainant contends that there is no distinctive character to the work being done by community wage recipients: it includes a wide range of activities and is only distinguished by the fact that it is community wage workers who are undertaking it. The appropriate government department need only determine that the work will provide work experience or exploration, and there is no right to appeal the decision concerning the nature of the work to be undertaken (sections 12J, 110 and 111 of the Social Security Act, 1964, as amended ("the Act")). The complainant refers to the Department of Labour policy paper concerning the relevant amendments, which states that the aim of the community wage programme is to "keep the unemployed attached to the labour market, so that they retain their work-related skills and disciplines …". The paper states further that "Labour market attachment is enhanced by creating an environment for unemployed jobseekers that is as much as possible like paid work". In the view of the complainant, the doctrine of "labour market attachment" means that any kind of work, whether suited to the skills and training of the worker or not, may be deemed to make the person more likely to obtain a job in the open market, just as any inactivity is considered detrimental to that end.
3. 739. The complainant also refers to the explanatory note to the Social Security (Work Test) Amendment Bill: "The Bill also replaces the existing graduated sanctions for work-test failure with a consistent set of sanctions designed to reinforce the message that 'if you don't work, you don't get paid'. This helps to create an environment for work-tested beneficiaries, which is as much like work as possible, in order to keep them attached to the labour market." In accordance with this approach, community wage workers may be disciplined and dismissed by their employer or by the Work and Income New Zealand Department, and can expect to face all the normal requirements of work performance. The only difference is that they have none of the rights to freedom of association, or other labour rights, of a worker outside the community wage programme. The complainant points to section 94 of the Act in this regard, which requires a community wage earner to sign a jobseeker contract in order to receive benefits. The contract sets out the obligations of the community wage earner, and states that sanctions can be imposed. It also states that "a signed jobseeker contract does not create or imply an employment relationship between the parties, nor does it create rights or obligations that are enforceable in any court or tribunal." The complainant states that the jobseeker contract constitutes a waiver of all rights, including rights of freedom of association, of the community wage earner.
4. 740. According to the complainant, the Act acknowledges that the relationship between the person providing work and the community wage earner is in the nature of an employment relationship since pursuant to section 123C the protection of the Health and Safety in Employment Act, 1992, and the Human Rights Act, 1993, is extended to community wage earners and the person providing work "as if the relationship between them is that of employee and employer". These are the only labour-related statutes that apply to community wage earners. The complainant notes that the right to strike over matters of health and safety is contained in the Employment Contracts Act and not the Health and Safety in Employment Act. With respect to the reference to the Human Rights Act, the complainant states that it appears to be aimed at preventing discrimination among community wage earners in their employment.
5. 741. With respect to the national procedures available, the complainant notes that while an employer could conceivably be charged with discriminating against community wage earners by denying them the rights and freedoms given to other employees, a remedy under the Human Rights Act would be difficult to obtain. The mere fact of agreeing to be a work provider under the community wage scheme would not likely constitute discriminatory behaviour under the legislation if the conditions are the same for all work providers. However, the submission of the Human Rights Commission on the Social Security (Work Test) Amendment Bill to the Social Services Select Committee made it clear, according to the complainant, that the amendments were in breach of the New Zealand Bill of Rights Act, 1990, because it discriminates against workers who were employed at the time they applied for the benefit or signed a jobseeker contract. The complainant cites section 17 of the Bill of Rights Act which states that "Everyone has the right to freedom of association". The complainant notes, however, that the report of the Ministry of Justice concerning the Social Security (Work Test) Amendment Bill does not consider the matter raised by the Human Rights Commission. The Ministry of Justice limited its consideration of section 17 of the Bill of Rights Act to whether it includes the right not to associate, and concluded that if a person had views that were diametrically opposed to those of a work provider, there is scope for them to refuse the work. While the complainant does not claim that an attempt to secure rights of freedom of association for community wage earners though the application of section 17 of the Bill of Rights Act has no hope of success, it points to some of the obstacles in this regard, including that the Bill of Rights Act does not override other legislation in the case of inconsistency, and the case law on section 17 is sparse.
6. 742. The complainant notes that although international law is not directly applicable in New Zealand, any interpretation of legislation that is consistent with that law is preferable. In this context, the complainant states that "it is highly desirable to clarify the meaning of the right to freedom of association before seeking a decision on what interpretation of the amended Social Security Act might be consistent with that right. This would give the New Zealand Parliament the opportunity to clarify its intentions in this regard …". In conclusion, the complainant requests the Committee to clarify those rights that must be guaranteed to beneficiaries required to labour in fulfilment of their "work test" obligations.
7. 743. In its communication of 2 June 1999, the complainant forwards reports prepared for the Christchurch City Council focusing on the punitive and compulsory elements of the community wage scheme. One of the reports prepared by the local Community Services Committee concludes that: "In our opinion the real and potential negative impacts of the programme (as currently structured), on individual participants and the wider community, outweigh the benefits. The scheme has potential to undermine social well-being and accentuate divisions within society. In particular, its failure to pay the beneficiary for community work undertaken, the element of compulsion and the punitive sanctions involved in the scheme make it unacceptable and counter-productive."
8. 744. Included with NZTUF's 2 June 1999 communication is a letter in support of the complaint from UNITE!, which is a union aiming to organize community wage workers. UNITE! asserts that through the amendments to the Social Security Act, the Government has created a new class of worker that is specifically excluded from industrial relations legislation, namely the Employment Contracts Act, as well as from other labour protection provisions concerning health and safety and accident compensation. This new class of worker consists neither of volunteers nor of those paid wages. This new class of worker is conscripted into work solely due to being unemployed, or on a sickness, domestic purposes or other benefit. UNITE! states further that while it is possible for community wage earners to join a union, there is no possibility for that union to bargain collectively with either the Government or the job provider for wages and conditions. Nor is there an opportunity for workers to bargain individually for their wages and conditions.
9. 745. UNITE! states that it has not been able to use any industrial relations law to intervene concerning cases of abuse regarding community wage earners since community wage earners are excluded from the scope of the Employment Contracts Act. UNITE! cites three examples of situations where it has successfully intervened concerning the treatment of community wage earners, though it states that such intervention has been more that of a pressure group than of a union:
   • n Community wage earners were forced to clean up a local stream without adequate protective clothing or equipment. After being highlighted publicly by UNITE! through a local newspaper, the correct clothing and equipment were provided.
   • n A group of community wage earners were contracted by their job providing organization to a private golf club, although community wage earners are not to be employed for private gain. This practice was also stopped when brought to the attention of the appropriate government agency through newspaper publicity.
   • n Community wage earners were referred to a security operation in a shopping mall, where they were refused use of the toilets, money was deducted from the community wage for uniforms that were never supplied, they were forced to work extra hours on patrol for no wages as punishment for arriving a few minutes late. These practices were stopped by the appropriate government agency when exposed by UNITE!
10. 746. UNITE! asserts that these are only a few of the many abuses concerning the community wage scheme, which began on 1 October 1998. The main problem, however, according to UNITE! is that the community wage system as a whole is an abuse and the examples illustrate the exploitation that can occur and the vulnerability of such workers when they do not have the right to freedom of association or to bargain collectively.

B. The Government's reply

1. 747. In its communication of 28 September 2000, the Government informs the Committee that it has introduced legislation to change the community work scheme; however, due to the extensive legislative programme undertaken by the Government, the Bill to amend the Social Security Act, 1964, has only recently been introduced and is currently being considered by a Select Committee. The proposed legislation aims to increase the opportunities for social and economic participation of unemployment beneficiaries by placing less emphasis on compulsion and more on obtaining results through working with beneficiaries on an individual level. The new legislation will remove the requirement for work-tested beneficiaries to participate in unpaid community work when requested by the Department of Work and Income. The Government asserts that under the new legislation, the work activities performed by unemployment beneficiaries will clearly not constitute employment and will not be mandatory. While acknowledging that unemployment beneficiaries may perform work and are therefore entitled to the right to freedom of association, the Government states that as they are not employees, they are not in a position to bargain for wages and working conditions.
2. 748. According to the Government, at the end of August 2000, of the 168,903 people receiving a social security benefit who were subject to the work test, 7,624 (4.5 per cent) were participating in community work projects. From October 1998 to the end of August 2000, 39,787 people had participated in community work. Community work is just one of a range of activities and is used only for individuals for whom it is identified as being appropriate. However, work-tested beneficiaries are engaged in organized activities other than community work. For example, 5,352 beneficiaries were engaged in full-time employment-related training at the end of August 2000. The Government submits that the incidence of sanctioning work-tested beneficiaries has been very low, citing for example a total of 814 people, or 0.48 per cent of beneficiaries, who were sanctioned in 1999.
3. 749. The Government sets out the existing social security benefit scheme, noting that there is a range of benefits, there is no qualifying period of employment, and access to social security benefits is not time-limited. Provision under social security legislation includes benefits for jobseekers, people who are temporarily unable to participate in paid work due to sickness, injury or disability, invalids, sole parents, widows, carers and retired persons. The community wage is one of these benefits. From 1 October 1998, the community wage replaced a range of former benefits that were available to the working age population. The community wage is generally available to a person aged 18 years or over who is not in full-time employment, is available for full-time employment, is willing and able to undertake it, and has taken reasonable steps to find it. The community wage is also available to a person who is not in full-time employment and whose capacity to seek full-time employment is limited as a result of sickness, injury or disability.
4. 750. The Government goes on to explain that recipients of the community wage and other specific types of social security benefits may also be subject to the work test, depending on the nature of their family responsibilities, educational status, and certain other personal circumstances such as pregnancy. The key features of the work test are as follows:
   • n Work-tested beneficiaries have an obligation to be available for, and take reasonable steps to obtain suitable employment and participate satisfactorily in such organized activities as required. Sanctions involving a reduction, suspension or cancellation of the benefit apply to recipients of work-tested benefits who fail without good reason or sufficient reason to meet their work-related obligations.
   • n There are a range of organized activities, of which community work is just one.
   • n The decision as to what organized activities are to be undertaken by any particular work-tested beneficiary follows a discussion between the beneficiary and his or her case manager about the beneficiary's needs and the most appropriate activities to help him or her find suitable employment.
   • n The organized activities form a hierarchy, with the main emphasis on self-help through job search through the initial period that a jobseeker is receiving a work-tested benefit.
   • n Of these activities, community work is reserved for those who are, or are considered to be, at risk of becoming long-term unemployed, and even then only when it is the most appropriate and cost-effective means of assisting the beneficiary to improve his or her prospects of obtaining paid employment.
   • n Beneficiaries undertaking community work receive a participation allowance, in addition to their benefit. This allowance of up to NZ$21 per week covers their participation-related expenses such as travel. If actual participation costs exceed NZ$21 per week, up to a further NZ$20 per week may be claimed in reimbursement.
   • n Community work occupies no more than 20 hours a week, allowing time to continue job search.
   • n Conditions attached to the community work activity ensure that it does not result in the dependency of the beneficiary or the project sponsor, or displace current or future paid workers.
5. 751. In response to the specific allegations made in the complaint, the Government states that it was never intended that work-tested beneficiaries engaged in community work activities would be in an employment relationship. Legislation currently before Parliament would remove the element of compulsion associated with community work, replace the community wage with an unemployment benefit and non-work tested sickness benefit, and would replace the jobseeker contract with an individual jobseeker agreement. In the context of New Zealand employment law, the Government asserts that a detailed examination of the elements of the relationship between jobseeker and sponsor clearly shows that it is not one of employment. Work may be done in a variety of contexts which do not necessarily involve an employment relationship.
6. 752. Regarding the status of those engaged in community work activities, the Government asserts that it was never intended that people engaged in such activities would be in an employment relationship. While the nature of the relationship between the beneficiary and the community work sponsor is not explicitly addressed in the legislation, in the Government's view it is clear both from the legislation and the nature of the jobseeker's beneficiary status that he or she is not an employee of the sponsor. The Social Security Act, as amended, states expressly that "a signed jobseeker contract does not create or imply an employment relationship between the parties, nor does it create any rights or obligations that are enforceable in any court or tribunal" (section 94(2)). The "parties" referred to in the section are the beneficiary and the Department of Work and Income. Section 110 sets out the types of organized activities that may be determined by the chief executive of the Department of Work and Income, including interviews by or on behalf of the chief executive; work assessment; attending a job interview for suitable employment; creating an individual action plan; complying with an individual action plan; participation in a programme, seminar, scheme or specified activity (including community work); participation in a work experience or work exploration activity; participation in training; activities for a person whose capacity for work is reduced by sickness, injury or disability. Section 111 provides that the chief executive may require a work-tested beneficiary to participate in one or more particular organized activities. Pursuant to section 123C, where a person is participating in an organized activity involving work, the Health and Safety in Employment Act, 1992, and the Human Rights Act, 1993, apply to the person and the person providing work "as if" the relationship between them were one of an employee and an employer. The Government points out that if this provision did not exist, the two pieces of legislation would either not apply or only apply in a limited way.
7. 753. The Government goes on to explain some of the provisions of the Social Security Amendment Bill, which it asserts will address the complainant's concerns regarding compulsory unpaid work. The Government states that the Bill removes the reference to "community work" and substitutes "activity in the community", which is defined as "an activity associated with a community project under the supervision of a sponsor who is contracted by the chief executive to provide that activity". The Bill also replaces the term "community wage" with "unemployment benefit" and defines "voluntary work" as "work undertaken by a person for no remuneration (other than reimbursement of direct expenses) for a non-profit community organization or other person; but does not include activities in the community or work undertaken as part of a work experience or work exploration activity". The existing section 94 is to be restated to read "a signed jobseeker agreement does not create or imply an employment relationship between the chief executive and the beneficiary, nor does it create rights or obligations that are enforceable in any court or tribunal". Section 111 will be amended to specify that the assistance that may be provided by the department, including making reasonable arrangements for beneficiaries to undertake a recognized community activity, will be subject to certain conditions, including the following: that the activity is suitable for the beneficiary to undertake, there are no other jobseeker development activities or other activities specified in the jobseeker agreement that would be more suitable for the beneficiary to undertake. Section 123C will be amended to make it clear that nothing in the relevant part of the Social Security Act creates or implies an employment relationship between the person undertaking the work and the person providing the work. It will also clarify that the Health and Safety in Employment Act, 1992, and the Human Rights Act, 1993, will apply to a beneficiary doing work as part of a jobseeker development activity or recognized community activity and the person providing work as if the beneficiary were the employee of the person providing work. This is intended to ensure that beneficiaries undertaking these activities are protected by the provisions of these statutes, even though they are not employees. The Government states that the Social Security Amendment Bill makes it clear that the jobseeker remains a beneficiary in all situations envisaged under the Social Security Act, including recognized community activities. The Bill, in the view of the Government, puts it beyond doubt that the beneficiary is undertaking the work voluntarily and is not in an employment relationship with either the person providing work or the Department of Work and Income.
8. 754. The Government then sets out the legislation and case law in New Zealand relating to the establishment of an employment relationship, and concludes that not all those performing work are necessarily employees, and an employment relationship implies the existence of a contract of service, which is lacking for participants in activity in the community. The jobseeker agreement will establish the jobseeker's responsibilities to look for work and undertake activities designed to improve his or her employment prospects. Activity in the community will be performed for the sponsor who has volunteered to provide participants with work experience, and the work will benefit the community, not the sponsor. The participant will continue to receive the benefit, and an allowance for costs, which will be paid by the Department of Work and Income, not the sponsor.
9. 755. The application of the New Zealand Bill of Rights, 1990, is then addressed by the Government. The Bill of Rights safeguards the rights and freedoms of the general population, including all social security beneficiaries, whether work tested or not. These rights include the right to freedom of association (section 17). The right to form and join a trade union is not, therefore, confined to employees. Employment relations legislation, however, normally defines a union in terms of its responsibilities to employees. The Employment Relations Act, 2000 (which repealed and replaced the Employment Contracts Act, 1991), provides that a society is entitled to be registered as a union if the object of the society, or one of its objects, is "to promote its members' collective employment interests". A union may have other objects, and the Act specifies that it does not prevent a union from offering different classes of membership. On the basis of the general rights of freedom of association, work-tested social security beneficiaries may join a union if they choose, and some do. However, since they are not employees but rather state beneficiaries, they are unable to negotiate wages and conditions of employment.
10. 756. The Government submits that the activity in the community scheme is part of a package of measures designed to reduce unemployment. Placements will be of a limited duration, for specific projects in the community and the voluntary sector, so limiting the displacement of ordinary employees. Present rules that ensure that employment programmes do not provide opportunities to the unemployed at the expense of those in work will continue under the amended Act. The work-tested social security beneficiary will remain on a social security benefit rather than being paid a subsidized wage, and the Government will provide an additional payment (the participation allowance) to cover work-related costs to the jobseeker. Thus the sponsor covers only the overhead costs of having the work done. Participating in activities in the community cannot, in the view of the Government, be considered "ordinary work" performed in the context of an employment agreement.
11. 757. The Government concludes by underlining that activity in the community, together with voluntary work, will replace the type of organized activity known as community work, and is one of a range of activities designed to improve employment prospects. The fact that there is no employment relationship is supported by the statute, and the circumstances under which the work is done do not constitute employment under general New Zealand law. The terms "community work" and "community wage" which were perceived as somewhat misleading concerning the relationship are to be replaced by "activity in the community" and "unemployment benefit" respectively. In addition, the current Social Security Amendment Bill specifically removes any compulsion for work-tested beneficiaries to participate in activities that involve work, including activity in the community and voluntary work.

C. The Committee's conclusions

1. 758. The Committee notes that the allegations of violations of freedom of association arise from the adoption in 1998 of amendments to the Social Security Act, 1964. In particular, the Social Security Amendment Act, 1998, and the Social Security (Work Test) Amendment Act, 1998, introduced a "work test" linked to a "community wage" scheme for unemployed jobseekers, in place of a range of unemployment benefits. According to the complainants, while unemployed workers are obliged to perform work in order to claim unemployment benefits or a "community wage", and this work is no different than that undertaken by employees, they are denied the status of employees, and thus denied the rights under the Employment Contracts Act, 1991 (which has since been repealed and replaced by the Employment Relations Act, 2000), including the right to negotiate collectively and the right to strike, and denied access to grievance procedures and specialized employment courts. The complainant also asserts that because community wage earners are deemed not to be employees, they are denied protection provided under basic employment standards legislation such as the Holidays Act, 1987, the Minimum Wage Act, 1983, and the Wages Protection Act, 1983. It is further alleged that although these workers may join trade unions, those unions are not legally able to further and defend their interests and are denied the right of access to workers at their place of work and to hold meetings at the workplace.
2. 759. The Committee notes that the Government appears to acknowledge that since community wage earners are deemed not to be employees pursuant to the terms of the Act, they are not covered by the provisions of the principal labour law, namely the Employment Relations Act, 2000. Section 18 of the Employment Relations Act states that "a union is entitled to represent its members in relation to any matter involving their collective interests as employees" (emphasis added). However, the Government points out that the right to freedom of association guaranteed under the Bill of Rights, 1990, is not confined to employees; thus community wage earners may join trade unions. The Government, however, does not address the allegations that community wage earners are denied the protection of basic employment standards and are denied access to grievance procedures and specialized employment courts. The Committee also notes the Government's statement that a Bill to amend the Social Security Act, 1964, which the Government submits would address a number of the issues raised by the complainant, has been introduced into Parliament and is being considered by a Select Committee.
3. 760. The Committee notes that the Social Security Amendment Act, 1998, and the Social Security (Work Test) Amendment Act, 1998, amend the Social Security Act, 1964, to establish a "community wage" to replace the unemployment and other social security benefits. The stated purpose of Part 2 of the Social Security Act, as amended (the Act), entitled "Community Wage" is "(a) to create a community wage in place of a range of former benefits; (b) to require that all community wage earners be subject to work testing; (c) to create a statutory jobseeker contract which reinforces the obligations under the work test". "Community wage earners" are subject to the "work test", unless they obtain an exemption or deferral for such reasons as having a dependent child, bereavement or separation, or limited capacity to work (sections 103-109). Pursuant to section 102 of the Act, a work-tested beneficiary must: "(a) be available for, and take reasonable steps to obtain, suitable employment; (b) participate satisfactorily in such organized activities as the chief executive [of the Work and Income Department] requires under section 111 …". A number of "organized activities" are enumerated in section 110, including participating in community work, which is the focus of the complaint. According to the Government, from October 1998 to the end of August 2000, almost 40,000 people had been mandated to participate in community work. Section 110 also sets out other organized activities such as work assessment, attending a job interview for suitable employment, creating an individual action plan and participating in training. The chief executive may require a work-tested beneficiary to participate in one or more specified organized activities that the chief executive considers: "(a) would or is likely to assist the person to improve his or her prospects for employment; and (b) is suitable to the circumstances of that person" (section 111).
4. 761. Other aspects of the Act that have been raised in the complaint include the jobseeker contract that community wage earners are required to sign, and the sanctions that may be imposed. The Committee notes that, pursuant to section 94: "(1) A jobseeker contract is a statutorily based agreement by a community wage earner or other work-tested beneficiary that - (a) he or she has reciprocal obligations arising from … entitlement to a community wage or other work-tested benefit ... (b) he or she is subject to the work test once payment of the community wage or other benefit commences; and (c) sanctions can be imposed for failure to comply with the work test". Section 94(2) states that: "A signed jobseeker contract does not create or imply an employment relationship between the parties, nor does it create rights or obligations that are enforceable in any court or tribunal." No person is to be paid a community wage unless he or she has signed a jobseeker contract (section 96(1)). For failure to participate in or complete an organized activity sanctions are to be applied, including suspending payment of the person's benefit, or cancelling the benefit (section 116). Where a person fails to participate in an organized activity to the satisfaction of the chief executive, the benefit is to be reduced by not more than 40 per cent (section 118). The Committee notes that the complainant and the Government refer to section 123C of the Act which provides that "where a person is participating in an organized activity that involves undertaking any work, the Health and Safety in Employment Act 1992 and the Human Rights Act 1993 apply to the person participating and to the person who provides the work as if the relationship between them is that of employee and employer".
5. 762. The Committee notes that according to the Government, community work is one of a range of organized activities and is reserved for those who are, or are considered to be, at risk of becoming long-term unemployed, and then only when it is the most appropriate and cost-effective means of assisting the beneficiary to improve his or her prospects of obtaining paid employment. The Committee notes further that a Bill to amend the Social Security Act is currently before Parliament which, in the view of the Government, addresses the complainant's concerns regarding compulsory unpaid work by establishing an "activity in the community" scheme to replace community work. The Government submits that the new activity in the community scheme is part of a package of measures designed to reduce unemployment, and aims to increase the opportunities for social and economic participation of unemployment beneficiaries by placing less emphasis on compulsion and more on obtaining results through working with beneficiaries on an individual basis. Placements will be of limited duration and for specific projects in the community and voluntary sector, in order to limit the displacement of ordinary employees. According to the Government, the new legislation will remove the requirement for work-tested beneficiaries to participate in unpaid community work when requested by the Department of Work and Income.
6. 763. The Committee notes that under the community wage programme in its present form an unemployed person who is capable of working may be obliged to perform work in exchange for state benefits. The Committee recalls that it has in the past examined similar "workfare" programmes [see 312th Report, paras. 1-77, Case No. 1958 (Denmark); 316th Report, paras. 229-274, Case No. 1975 (Canada/Ontario)] and has established certain principles in this area. Case No. 1958 (Denmark) concerned allegations of government interference in the application of collective agreements through the imposition of an hourly wage ceiling for workers employed in subsidized jobs. The workers maintained the right to organize, but were restricted in their right to bargain collectively. In that case, noting that these programmes were aimed at combating unemployment through subsidized job offers of limited duration, without jeopardizing the posts of current employees, the Committee concluded that such jobs did not constitute ordinary work. However, the Committee emphasized that such programmes must remain limited in duration and must not be used to fill regular jobs with unemployed persons restricted in their right to bargain collectively in terms of wages.
7. 764. A wider range of freedom of association issues were canvassed in Case No. 1975 (Canada/Ontario) since those obliged to undertake community participation activities in order to receive unemployment benefits were by statute expressly denied the rights provided under the principal labour law, namely the right to join a trade union, to have their terms and conditions determined through collective bargaining and to strike. The Committee concluded that those involved in community participation activities were not true employees of the organization that benefited from their labour and therefore could legitimately be excluded from the scope of collective agreements in force, at least in respect of wages. However, since those involved in community participation activities were undeniably performing work and providing services to the benefit of those organizations concerned, the Committee was of the view that they must enjoy certain protections in respect of their working conditions. Some protection was indeed provided since the workers concerned were covered by laws and standards relating to human rights and health and safety, as well as those governing hours of work, compulsory rest breaks, public holidays and maternity and parental leave. However, the Committee emphasized that these workers should also be entitled to the right to organize, given that they clearly had collective interests that need to be promoted and defended.
8. 765. Noting the complainant's request for clarification regarding the scope of freedom of association rights that should be granted to community wage earners, the Committee emphasizes the following principles, based on the above-noted cases, where persons are required to perform work or provide services in exchange for state benefits: such activities do not constitute ordinary work where they are aimed at combating unemployment, they are of limited duration, and are not used to fill regular jobs or displace current employees; where the activities do not constitute ordinary work, they may legitimately be excluded from the scope of collective agreements, at least with respect to wages; certain protections in respect of their working conditions should be provided, such as coverage under health and safety legislation as well as the protection of basic working standards; they should have the right to organize. The Committee notes further that for the right to organize to be meaningful, the relevant workers' organizations should be able to further and defend the interests of its members, including by enjoying such facilities as may be necessary for the proper exercise of their functions of workers' representatives, including access to the workplace.
9. 766. The Committee notes that the Government acknowledges that unemployment beneficiaries performing work should be entitled to freedom of association; however, it does not accept that these beneficiaries should be able to bargain for wages or working conditions. The Committee also notes that a number of the concerns raised in the complaint appear to be addressed by the Social Security Amendment Bill, since the community wage programme will be altered significantly, and unemployed workers will no longer be compelled to work in order to receive state benefits. However, the Committee has not had the benefit of examining this Bill, and requests the Government to forward a copy once it has been adopted.
10. 767. Since the legislation at issue is in the process of being amended, the Committee hopes that prior to the Social Security Amendment Bill being adopted, it will be the subject of consultation with appropriate workers' and employers' representatives, and that the legislation once it is adopted will comply with the freedom of association principles noted above. The Committee requests the Government to keep it informed in this regard.