Observation (CEACR) - adoptée 2007, publiée 97ème session CIT (2008)

The Committee notes that the Government’s report has not been received. It further notes the comments submitted by the International Trade Union Confederation (ITUC).

The Committee had previously taken note of the comments submitted by the ITUC in 2006, which referred to acts of anti-union discrimination in many companies. The Committee notes the Government’s statement, in its reply to the ITUC’s 2006 comments, that it has received no reports of complaints of anti-union discrimination and that the legislation provides adequate protection, including sanctions, against such acts.

Prison staff. The Committee notes the Government’s indication in the Convention No. 87 report that while no legal provisions set forth the right to organize of prison staff, prison service staff have formed an association to protect and promote their interests. In these circumstances, the Committee requests the Government to amend the Labour Act so as to ensure that prison service staff expressly enjoy the right to organize and to collective bargaining.

Collective bargaining certification. Finally, the Committee had previously noted that sections 99–100 of the Labour Act, 2004, regulate the issue of trade union recognition for collective bargaining purposes by providing that the Chief Labour Officer shall issue, upon request by a trade union, a certificate appointing that trade union as the appropriate representative to conduct negotiations on behalf of the class of workers specified in the collective bargaining certificate (section 99). The Chief Labour Officer shall, subject to regulations made by the minister, determine which union shall hold a collective bargaining certificate in a situation where there is more than one trade union at the workplace (section 99(4)), and may issue an amending certificate after consultation with the trade union named in the certificate and the appropriate employers’ organization (section 100).

It seems to the Committee that the Chief Labour Officer has full discretion to decide whether to grant recognition to a trade union and that the criteria upon which this decision should be based are not specified. The Committee considers that in cases in which a system of “compulsory” recognition has been established, where the employer must recognize the existing trade union(s) under certain conditions, it is important for the determination of the trade union in question to be based on objective and pre-established criteria so as to avoid any opportunity for partiality or abuse. Furthermore, when national legislation provides for a compulsory procedure for recognizing unions as exclusive bargaining agents, certain safeguards should be attached, such as: (a) the certification to be made by an independent body; (b) the representative organization to be chosen by a majority vote of the employees in the unit concerned; (c) the right of an organization, which in a previous trade union election failed to secure a sufficiently large number of votes, to request a new election after a stipulated period; and (d) the right of any new organization other than the certified organization to demand a new election after a reasonable period has elapsed (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 240). Noting also that the comments submitted by the ITUC refer to the refusal to grant trade union recognition in two enterprises, the Committee requests the Government to provide information on any regulations adopted or envisaged under section 99 of the Labour Act with a view to setting up procedures and criteria relevant to the Chief Labour Officer’s competence to determine which union shall hold a collective bargaining certificate.