Observation (CEACR) - adoptée 2009, publiée 99ème session CIT (2010)

The Committee notes the comments submitted by the International Trade Union Confederation (ITUC), in a communication dated 26 August 2009, which primarily concern matters previously raised by the Committee and also refer to the denial of freedom of association rights to employees in privatized industries; to the difficulties in organizing legal strikes for teachers, 2,000 bank employees and railway workers; to the locking up by employers of fish processing plant workers during an official visit; and to the dismissal of 350 strikers in the textile sector. The Committee requests the Government to provide its observations thereon.

Article 2 of the Convention. Right of workers and employers, without distinction whatsoever, to establish organizations. The Committee had previously requested that the Government amend section 2(1)(iii) of the Employment and Labour Relations Act (ELRA) so that prison guards enjoy the right to establish and join organizations of their own choosing. In this respect, the Committee notes with regret that the Government reiterates that prison guards were part of the armed forces, and were thus governed by their respective sets of law. The Committee must once again recall that the only admissible exceptions to the right to organize are those explicitly provided for under Article 9 of the Convention, i.e. the armed forces and the police. All other categories of workers, without distinction whatsoever, should enjoy the right to establish and join organizations of their own choosing. The Committee considers that the functions exercised by prison guards are different from the regular functions of the army and the police and do not justify their exclusion from the right to organize (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 56). Accordingly, the Committee once again requests the Government to amend section 2(1)(iii) of the ELRA so that prison guards enjoy the right to establish and join organizations of their own choosing.

The Committee had previously requested the Government to provide adequate information on the types of workers included in the category of the national service, which is excluded from the provisions of the ELRA, so that it may assess whether they qualify for the exceptions of Article 9 of the Convention. The Committee notes the Government’s indication that the Ministry of Labour, Employment and Youth Development is at a preparatory stage of formulating rules which will set the definition of the category of workers included in the national service. The Committee recalls that only the armed forces and the police may be deprived of the rights provided in the Convention, and requests the Government to provide a copy of the said rules and regulations once they are finalized.

Right of workers and employers to establish organizations without previous authorization. In its previous comments, the Committee had noted that section 48 of the ELRA, which provides for the process of registration, does not set forth a time period in which the registrar must either approve or refuse an organization’s application, and had requested the Government to consider amending the ELRA so as to provide for a reasonable time period for the processing of applications for registration. Noting the Government’s statement that the rules and regulations referred to above would address this matter, the Committee, recalling once again that problems of compatibility with the Convention arise where the registration procedure is long and complicated, expresses the hope that the rules and regulations being prepared by the Ministry would, once finalized, provide for a reasonable time period for the processing of applications for registration.

Article 3. Right of organizations freely to organize their activities and to formulate their programmes. The Committee had previously noted that sections 4 and 85 of the ELRA allow for protest action, i.e. strikes in disputes that are not interest disputes, but that, under section 4, such action is apparently not lawful when taking place in relation to “a dispute in respect of which there is a legal remedy”. The Committee notes the Government’s statement that it covers any dispute in which a party to the dispute may apply for relief in any authority with competent jurisdiction. In this connection, the Committee recalls again that the solution to legal conflicts arising as a result of a difference in the interpretation of a legal text should be left to the competent courts, and that the prohibition of strikes in such situations does not constitute a breach of freedom of association rights. However, prohibiting protest action in respect of all disputes possessing a legal remedy may unduly infringe upon the right to strike. The Committee once again requests the Government to amend section 4 of the ELRA so as to limit the restriction on strikes to those taking place in relation to a dispute of rights.

The Committee had also previously requested the Government to amend section 76(3)(a) of the ELRA, which prohibits picketing in support of a strike, or in opposition to a lawful lockout. In this regard, the Committee regrets that the Government confines itself to stating that the Committee would be notified if and when any progress is made respecting this matter. Recalling once again that it considers that restrictions on strike pickets should be limited to cases where the action ceases to be peaceful (see General Survey, op. cit., paragraph 174), the Committee once again requests the Government to amend section 76(3)(a) of the ELRA accordingly.

In its previous comments, the Committee had requested the Government to modify sections 12, 13(b), 15, 17(1) and (2), 19 and 22 of the draft Public Service (Negotiating Machinery) Bill so as to ensure that restrictions on the right to strike in the public sector were limited to public servants exercising authority in the name of the State. It takes note of the Government’s answer that the restrictions on the right to strike in the public sector are limited to those holding paid public office in the United Republic, charged with the formulation of government policy and delivery of public services, and to any office declared by or under any other law to be a public office. While noting this information, the Committee must once again recall that a too broad definition of the concept of public servant is likely to result in a very wide restriction or even a prohibition of the right to strike for these workers (see General Survey, op. cit., paragraph 158). Accordingly, the Committee once again requests the Government to modify sections 12, 13(b), 15, 17(1) and (2), 19 and 22 of the draft Public Service (Negotiating Machinery) Bill so as to ensure that restrictions on the right to strike in the public sector are strictly limited to public servants exercising authority in the name of the State.

The Committee had also previously requested the Government to provide information in respect of the designations of essential services that the Essential Services Committee has made under section 77 of the ELRA. It notes the Government’s answer that no designation had yet been made by the Committee to that effect. Recalling that essential services should be defined in the strict sense of the term (that is, services the interruption of which would endanger the life, personal safety or health of the whole or part of the population), the Committee requests the Government to inform it of any designations of essential services that the Essential Services Committee has made under section 77 of the ELRA.

Zanzibar

Article 2 of the Convention. Right of workers and employers, without distinction whatsoever, to establish organizations. In its previous comments, the Committee had requested the Government to review and amend section 2(2) of the Labour Relations Act (LRA), which excluded the following categories of employee from the LRA’s provisions: (a) judges and all judiciary officers; (b) members of special departments; and (c) employees of the House of Representatives. Noting the Government’s indication that the relevant authorities will be advised accordingly and to take appropriate measures to address the matter, the Committee once again recalls that the only admissible exceptions to the right to organize are those explicitly provided for under Article 9 of the Convention, i.e. the armed forces and the police. Recalling once again that other categories of workers, without distinction whatsoever, should enjoy the right to establish and join organizations of their own choosing, the Committee trusts that the Government will soon review and amend section 2(2) of the LRA in accordance with this principle.

Previously, the Committee had requested the Government to amend section 4(1) of the LRA in order to bring it into conformity with the principle that Article 2 of the Convention guarantees the right to organize to employers and workers, including those who are not in contractual employment relationships. It takes due note of the Government’s answer that when read together with sections 43, 44 and 45(1) of the Employment Act, (which provide for the definition and different types of services), section 3(1) of the LRA includes even workers and employers who are not in contractual employment relationships and therefore grants them the right to organize.

Right of workers and employers to establish organizations without previous authorization. The Committee had previously requested the Government to provide further information on section 21(1)(c) of the LRA, particularly on the criteria employed by the Registrar for determining whether an organization’s constitution contains suitable provisions to protect its members’ interests, and on the expeditiousness of the registration procedure, including the average time period, from the submission to the application, for an organization to be registered. The Committee recalls that the competent authority must not be given discretionary power to refuse registration, as it could amount in practice to a system of previous authorization, contrary to the principles of the Convention No; it also recalls that the registration procedure must not be too long and complicated, so as to comply with the Convention (see General Survey, op. cit., paragraphs 73–75). Noting the Government’s report to the effect that the intended Rules and Regulations for the implementation of the Act will address the matter, the Committee requests the Government to provide a copy of the said rules and regulations once they are finalized.

Article 3. Right of organizations to organize their administration and activities and to formulate their programmes. In its previous comments, the Committee had requested the Government to indicate whether, under section 42 of the LRA, trade union’s funds could be applied to pay any fines or penalties incurred by a trade union official in the discharge of his or her duties on behalf of the Organization. The Committee takes note of the Government’s reply concerning section 42 of the LRA, confirming that this provision forbids the union to use, directly or indirectly, its funds for the abovementioned purpose. The Committee recalls, in this regard, that trade unions should have the power to manage their funds without undue restrictions from the legislation (see General Survey, op. cit., paragraph 124). Accordingly, the Committee requests the Government to amend section 42 of the LRA so that the trade unions may use their funds if they wish to, inter alia, pay fines or penalties incurred by trade union officials in the discharge of their duties.

Political activities. Previously, the Committee had requested the Government to provide information on the definition of political affiliation under section 8(2) of the LRA, and to indicate in particular whether under this provision trade unions may still pursue certain political activities, including the expression of opinions on economic and social policy. In this regard, the Committee notes the Government’s indication that section 8(2) of the LRA forbids trade unions from being affiliated to political parties. While further noting the Government’s statement that section 8(2) emphasizes trade unions’ independence from political influences, the Committee nevertheless recalls that the legislative provisions which prohibit all political activities for trade unions give rise to serious difficulties with regard to the principles of the Convention: workers’ organizations must be able to voice their opinions on political issues in the broad sense of the term and, in particular, to express their views publicly on a government’s economic and social policy (see General Survey, op. cit., paragraphs 131 and 133). Accordingly, the Committee requests the Government to amend section 8(2) of the LRA in accordance with the principle cited above.

The right to strike. In its previous comments, the Committee had requested the Government to take the necessary measures to amend section 64(1) of the LRA, which sets forth categories of employees, namely (a) employees of any public authority who are actually engaged in the management of such authority; and (b) employees actually engaged in the management of a business of the employer for which such an employee is engaged, that may not participate in a strike, without any additional indication, and section 64(2) of the LRA, which lists several services that are deemed essential, including sanitation services, and in which strikes are forbidden. The Committee regrets that the Government confines itself to stating that the relevant authorities would be advised accordingly. Recalling once again that the right to strike may be restricted or prohibited: (1) in the public service only for public servants exercising authority in the name of the State; or (2) in essential services in the strict sense of the term (that is, services the interruption of which would endanger the life, personal safety or health of the whole or part of the population), the Committee requests the Government to amend sections 64(1) and 64(2) of the LRA accordingly.

Protests. Previously, the Committee had requested the Government to amend sections 63(2)(b) and 69(2) of the LRA, which determines that before resorting to protest action, the trade union must give the mediation authority at least 30 days to resolve it and subsequently give 14 days’ advance notice explaining the purpose, nature and place and date of the protest action; it requested the Government to shorten this 44-day period (to a maximum of 30 days, for example). In this respect, the Committee regrets that the Government confines itself to stating that the relevant authorities would be advised accordingly. The Committee recalls once again that the period of advance notice should not be an additional obstacle to bargaining, with workers in practice simply waiting for its expiry in order to be able to exercise their right to strike (see General Survey, op. cit. paragraph 172). The Committee requests the Government to amend sections 63(2)(b) and 69(2) of the LRA accordingly.

Finally, with respect to Zanzibar, the Committee regrets that the Government still provides no information about section 41(2)(j) of the LRA, which concerns restrictions on the use of trade unions’ funds. Accordingly, it once again requests the Government to take the steps necessary to amend section 41(2)(j) of the LRA so that the institutions a trade union may wish to contribute to are not subject to the Registrar’s approval.

The Committee again expresses the hope that the Government will make every effort to bring its legislation into full conformity with the Convention and provide detailed information on the abovementioned points in its next report. Further recalling that it has been commenting upon the abovementioned legislative matters for a period of several years, the Committee invites the Government to seek the technical assistance of the Office in this regard.