Demande directe (CEACR) - adoptée 2001, publiée 90ème session CIT (2002)

The Committee notes with interest the adoption of the Registration, Status and Recognition of Trade Unions and Employers’ Organizations Act, 1999 (the Act). The Committee also notes that a draft Labour Code is in the process of being prepared with ILO assistance.

Scope of application of the Act. The Committee notes with interest that "employee" has been defined to include a "dependent contractor", that is, those in a position of economic dependence with respect to the person for whom they are performing work (section 2), thus resulting in a welcome broadening of coverage of the rights in the legislation. Noting that the only group expressly excluded from the Act includes members of the protective services (section 3), the Committee requests the Government to indicate specifically the workers considered to be included in this group and recalls that the Convention only permits exclusions from its provisions in respect of the police and armed forces.

Article 2 of the Convention. The Committee notes that, under section 14 of the Act, the minimum founding membership for a trade union is 30 and for an employers’ organization is ten. Given the size of the country and the fact that the trade union structure is based on enterprise unions, the Committee is of the view that this requirement could in practice result in workers and employers being denied the right to form organizations of their own choosing. The Committee considers that this number should be reduced to a reasonable level so that the establishment of organizations is not hindered (see General Survey on freedom of association and collective bargaining, 1994, paragraph 81).

Article 3. 1. The right of workers’ organizations to draw up their constitutions and rules free from interference. With respect to amendments to the constitution of an organization, which are to be submitted to the Registrar (sections 14 and 16), the Committee requests that the Government clarify whether the appeal provision under section 14(6) also applies in the case of a refusal to register amendments to the Constitution.

2. The right of workers’ organizations to organize their activities. The Committee notes that pursuant to section 18, registered organizations are immune from civil proceedings in respect of any act done in good faith by or on behalf of the organization in furtherance of the objects of its constitution. Noting that under the Trade Unions and Trade Disputes Ordinance, 1959, which is repealed by the Act, there was specific immunity from criminal conspiracy for agreements or acts in contemplation or furtherance of a trade dispute (section 38), the Committee requests that the Government give information on the protection against potential criminal liability of organizations, such as for criminal conspiracy in furtherance of a trade dispute.

Article 4. Noting that the Registrar may suspend or withdraw registration for failure to submit an annual return (section 17), the Committee recalls that it is preferable for legislation not to allow dissolution or suspension of workers’ and employers’ organizations by administrative authority, but if it does, the organization affected by such measures must have the right of appeal to an independent and impartial judicial body which is competent to examine the substance of the case, to study the grounds for the administrative measure and, where appropriate, to rescind such measure; moreover, the administrative decision should not take effect until a final decision is handed down (see 1994 General Survey, paragraph 185). The Committee requests the Government to indicate in its next report the measures taken or envisaged to ensure that the tribunal competent for reviewing any suspension or withdrawal of registration has the abovementioned powers and, in particular, to ensure that any judicial review of such matters results in the suspension of the administrative decision until the final judgement has been handed down.