Demande directe (CEACR) - adoptée 2005, publiée 95ème session CIT (2006)

The Committee notes that the Government’s report has not been received. The Committee also takes note with interest of the text of the Labour Act, 2004 which entered into force on 31 March 2004.

Article 2 of the Convention. Right of workers and employers to establish and join organizations of their own choosing without previous authorization (not applied). 1. Managerial and executive staff. The Committee notes that section 79(1) of the Labour Act proclaims the right of every worker to form or join a trade union of his or her choice for the promotion and protection of the worker’s economic and social interests. However, subsection (2) of section 79 provides that the workers whose function is normally considered as: (a) policy-making; (b) decision-making; (c) managerial; (d) holding a position of trust; (e) performing duties that are of a highly confidential nature; or (f) an agent of a shareholder of an undertaking, may not form or join trade unions. The Committee emphasizes that Article 2 of the Convention makes no distinction based on the nature of the functions or the hierarchical level of workers, who should all enjoy the right to organize, including managerial and executive staff. Thus, provisions which might lead to a denial of the right to association and artificially reduce the size of the bargaining unit by granting fictitious promotions to unionized workers without actually according them management responsibilities, thereby effectively placing them in the category of so-called "employers" to whom the right to organize is not permitted, is not in accord with the Convention. Provisions which prohibit managerial and executive staff in the private sector from joining trade unions in which other workers are represented are acceptable under the Convention only if these workers have the right to establish their own organizations, restricted to persons performing senior managerial or decision-making functions (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 66). The Committee therefore requests that the Government amend section 79(2) so as to ensure that that workers performing managerial and decision-making functions maintain the right to establish and join organizations of their own choosing for the defence and promotion of their social, economic and professional rights and interests.

2. Right to establish and join organizations at the branch or industry level. The Committee notes that section 80(1) of the Labour Act sets a minimum membership requirement for the establishment of trade unions of two or more workers employed in the same undertaking. The Committee asks the Government to specify whether workers have the possibility to establish trade unions at the level of branch or industry and indicate any applicable provision in this respect.

3. Right of employers to establish and join organizations of their own choosing. The Committee notes that section 80(2) provides that two or more employers in the same industry or trade, each of whom employs not less than 15 workers, may form or join an employers’ organization. The Committee considers that the requirement for employers to employ at least 15 workers, would seem likely to unduly restrict the right of employers, especially in micro and small enterprises, to establish and join organizations of their own choosing. The Committee asks the Government to amend section 80(2) so as to lift the requirement for employers to employ not less than 15 workers in order to be able to establish or join a trade union.

Articles 2 and 9. Admissible exceptions from the scope of the Convention. The Committee notes that the prison service is excluded from the scope of the Labour Act (section 1 of the Act). The Committee draws the Government’s attention to Article 9 of the Convention which excludes the police and armed forces from the scope of the Convention but it does not extend to prison staff. The functions exercised by this category of public servants should not justify their exclusion from the right to organize (see General Survey, op. cit., paragraph 56). The Committee is therefore of the view that prison staff have the right to organize, like all other workers, without distinction whatsoever. This is independent of any restrictions imposed on this category of workers as regards the right to strike. The Committee therefore requests that the Government indicate the provisions which ensure that the staff of the prison service enjoy the right to set up and join organizations of their own choosing and if there are no such provisions, to amend section 1 of the Labour Act accordingly.

Article 3. Right of workers’ organizations to organize their administration and activities and to formulate their programmes. The right to strike. 1. The Committee notes that sections 154-160 of the Labour Act contain no specific time limit within which mediation should be concluded. This could serve as an impediment to the staging of lawful strikes given that the exhaustion of mediation proceedings is a prerequisite in this respect (section 159). The Committee therefore requests that the Government complement the Labour Act by setting specific and not excessively long time limits within which mediation efforts should be concluded so as not to unduly impede the possibility for workers to have recourse to lawful strikes for the defence of their occupational rights and interests.

2. The Committee further notes that section 160(2) of the Labour Act provides that if a dispute remains unresolved within seven days from the commencement of a strike, the dispute shall be settled by compulsory arbitration proceedings in which the tripartite National Labour Commission shall serve as an arbitration body (section 164). The award shall be final and binding on the parties and shall prevail over any collective agreement in force and the terms of the collective agreement shall be deemed to have been modified as far as may be necessary, to conform to the award (section 167). The Committee is of the view that such a system would deprive strikes of any effect and 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 to formulate their programmes, contrary to Article 3 of the Convention (see General Survey, op. cit., paragraph 153). The Committee asks the Government to repeal section 160(2) so as to limit the possibility for the authorities to refer collective disputes to compulsory arbitration only to cases involving essential services in the strict sense of the term and public servants exercising authority in the name of the State.

3. The Committee notes that section 175 of the Labour Act defines essential services, in which strikes are prohibited in accordance with section 163, as "areas in an establishment where an action could result in a particular or total loss of life or pose a danger to public health and safety and such other services as the Minister may by legislative instrument determine". The Committee recalls that essential services are only those the interruption of which would endanger the life, personal safety or health of the whole or part of the population (see General Survey, op. cit., paragraph. 159). The Committee requests that the Government keep it informed of any instrument issued by the Minister under section 175 of the Labour Act with a view to qualifying a particular service as essential and any list of the specific services which are considered to be essential.