Demande directe (CEACR) - adoptée 2004, publiée 93ème session CIT (2005)

With reference to its observation and in relation to its previous comments on the draft Employment and Labour Relations Bill which has now been enacted, the Committee notes with interest that meteorological services are now excluded from the list of essential services in section 77 of the Employment and Labour Relations Act and that the minimum membership requirement has been limited to 20 instead of 30 employees in section 46(1)(d) of the same Act. The Committee also notes, however, that the Government has not provided any response to its previous comments with regard to the following issues:

(a)  the need to ensure the right to organize for the prisons service and to provide clarifications on the types of workers in the national service excluded from the scope of the Employment and Labour Relations Act (section 2(1)(iii) and (iv) of the Employment and Labour Relations Act);

(b)  the need to limit the authority of the Registrar to require written explanations on an organization’s statement of membership, its auditor’s report or its financial statements within 30 days (section 52(2)(b) of the Employment and Labour Relations Act);

(c)  the specific time limits within which the trade union registration procedure should be concluded;

(d)  any designations of essential services that the Essential Services Committee has made (section 77 of the Employment and Labour Relations Act); and

(e)  the scope of section 4 of the Employment and Labour Relations Act on the basis of which it appears that protest action is not lawful when it takes place in relation to a dispute "in respect of which there is a legal remedy".

The Government has also not provided any indication with regard to the Committee’s previous comments concerning the need to modify the draft Public Service (Negotiating Machinery) Bill so as to ensure that restrictions to the right to strike in the public sector are limited to public servants exercising authority in the name of the State. These comments relate in particular to:

(a)  sections 22 and 2(c) and (d) of the Bill which prohibit strikes by "staff grade officers", including the head of public learning institutions and any other government employee declared as a staff grade officer by the Minister of Public Service Management;

(b)  sections 12, 13(b), 15, 17(1) and (2), and 19 of the Bill which establish a system of compulsory arbitration at the discretion of the authorities for the determination of the terms and conditions of employment of operational service public employees (i.e. supporting staff not employed in the executive or officer grade).

With regard to Zanzibar, the Committee notes that the Government does not provide any response to its previous comments concerning the Trade Unions Act, 2001 (TUA), and in particular the need to:

(a)  lower the minimum membership requirement of 50 workers (section 14(1) of the TUA) and eliminate the Minister’s discretionary power to grant registration regardless of this requirement (section 14(3) of the TUA);

(b)  enable workers engaged in more than one occupation to establish and join more than one trade union (section 21(1)(d) of the TUA);

(c)  abolish the absolute prohibition of performing any act prior to trade union registration (section 24(1) of the TUA);

(d)  limit the Registrar’s discretionary power to refuse to register a trade union if in his/her view, its constitution does not contain suitable provisions for the protection and promotion of its interests (section 21(1)(d) of the TUA);

(e)  modify the occupational requirement so as to allow more scope for workers in the election of their trade union officers without being dependent upon the Registrar’s discretionary authority (sections 29(1) and (3) of the TUA);

(f)  eliminate the literacy requirement which is currently a prerequisite for trade union office (section 29(4) of the TUA)

(g)  eliminate the requirement of previous authorization by the Registrar for any expenditure which is not expressly authorized in the law (section 42(2)(t) of the TUA);

(h)  eliminate the possibility for the Registrar to require an account of the financial situation of a trade union at any time (section 45(1) of the TUA).

Furthermore, the Committee notes that the Government does not provide any information on:

(a)  the measures taken to establish objective, pre-established and precise criteria for the recognition of most representative trade unions (section 54 of the TUA);

(b)  any regulations made by the Minister on the manner in which trade unions and their constitution shall be registered (section 66(2)(c) of the TUA);

(c)  any regulations made on matters related to trade union registers and inspection, the safe custody of trade union funds and the management of benevolent trade union funds (section 66(2)(b), (d), (e), (f) and (g) of the TUA);

(d)  any cases in which section 56 of the TUA has applied and any measure taken or envisaged to ensure that pickets are sanctioned only in cases where the action ceases to be peaceful;

(e)  the manner in which the right to strike is ensured in Zanzibar;

(f)  the provisions which ensure that in exercising his functions as liquidator, the Registrar should make sure that the assets of dissolved trade unions are used for the purposes for which they were acquired (section 38(3) of the TUA);

(g)  the right of trade unions to join federations and confederations in the form and manner deemed most appropriate by the workers concerned (sections 2, 32 and 33 of the TUA).

The Committee hopes that the Government will make every effort so as to bring its legislation into full conformity with the Convention and provide detailed and complete information on all the above points which have been analysed in more detail in its previous direct request (see 2003 direct request, 74th Session).