Observation (CEACR) - adoptée 2021, publiée 110ème session CIT (2022)

Convention (n° 98) sur le droit d'organisation et de négociation collective, 1949 - Maldives (Ratification: 2013)

Autre commentaire sur C098

Observation

2021

Demande directe

2017

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The Committee notes the observations of the Maldivian Trade Union Congress (MTUC), received on 26 September 2021, denouncing the absence of a legal framework for industrial relations and collective bargaining and alleging that the Government’s 2017 report has not yet been shared with workers’ organizations. The Committee requests the Government to provide its comments on the MTUC observations and requests it once again to share its reports on the Convention with the representative organizations of workers and employers for their observations.

Legislative framework. The draft Industrial Relations Act. In its previous comment, the Committee requested the Government to take the necessary measures to achieve the adoption of the draft Industrial Relations Act, developed to create an integrated and comprehensive legislation dealing with all aspects of collective labour relations. The Committee also notes in this respect that the Committee on Freedom of Association (CFA), when examining Case No. 3076 concerning the Maldives: (i) observed with deep concern allegations that the Government’s systematic failure to ensure effective protection of trade union rights both in law and in practice led to a denial of the right to freedom of association to workers in the country; (ii) requested the Government to take the necessary legislative and enforcement measures, in consultation with the social partners concerned, to address those allegations and to ensure that protection for trade union rights, in particular protection against anti-union discrimination, is fully guaranteed both in law and in practice; and (iii) referred the legislative aspects of the case to this Committee (see Case No. 3076, 391st Report of the Committee on Freedom of Association, October 2019, paragraphs 410 and 412(h) and 395th Report of the CFA, June 2021, paragraphs 282 and 283).

The Committee notes the Government’s indication that the adoption of the Industrial Relations Bill has been included in the Government’s Strategic Action Plan 2019-2023 as a priority, that it continues to be reviewed for alignment with Government policies and international obligations and that it is expected to be sent to the Parliament for final decision and adoption in the near future. The Government states that the Bill provides for a system to facilitate collective bargaining, effective mechanisms for resolving industrial disputes and the establishment of a Tripartite Labour Dialogue Forum to foster co-operation on labour issues. The Committee also notes the concerns raised by the MTUC that, despite ILO technical assistance since 2013, the Bill has not yet been adopted, that workers’ associations were not consulted in its elaboration and that the Governments lacks commitment in this regard, resulting in a lack of protection of the right to collective bargaining. Recalling that the Industrial Relations Bill has been pending adoption for several years and regretting the absence of tangible progress in this regard, the Committee expects that it will be adopted without delay following meaningful consultations with workers’ and employers’ organizations and will address all of the Committee’s observations below so as to ensure its full conformity with the Convention. The Committee invites the Government to continue to avail itself of the technical assistance of the Office, should it so desire, and requests it to provide a copy of the law once adopted.

Article 1 of the Convention. Adequate protection against acts of anti-union discrimination. Persons protected. Having previously noted that section 34(a) of the Employment Act, 2008 exempted several categories of persons (persons working in emergency situations, crew of sea going vessels or aircraft, imams and other employees at mosques, persons on on-call duty during the hours of duty and persons in senior management posts) from the provisions of Chapter 4 (prohibition of anti-union dismissal, access to court, measures of redress) and that section 34(b) provided for the possibility to enact regulations to further exempt employees in certain situations from the provisions of Chapter 4, the Committee requested the Government to take the necessary measures to ensure that all workers covered by the Convention can benefit from the rights enshrined in it and are adequately protected against acts of anti-union discrimination. The Committee notes the Government’s indication that following the September 2020 amendment to the Employment Act, section 34 exempts the mentioned categories of workers only from sections 32 (working hours), 37 (overtime) and 38 (working on public holidays). The Committee notes with interest that the referred categories would thus be eligible for the rights and protections under the remaining provisions of Chapter 4 of the Employment Act.

Acts covered. In its previous comment, the Committee requested the Government to take the necessary measures to amend section 4(a) of the Employment Act so as to include trade union membership and legitimate trade union activities as one of the grounds of prohibited discrimination at all stages of employment. The Committee notes the Government’s statement that while trade union affiliation and participation in legitimate trade union activities are not included as one of the grounds of prohibited discrimination at all stages of employment in section 4(a) of the Employment Act, it is covered in the draft Industrial Relations Bill. The Committee observes however that the Government does not provide details as to the protection against anti-union discrimination foreseen in the Industrial Relations Bill and also notes the concerns raised by the MTUC that the 2020 amendments to the Employment Act do not prevent anti-union dismissals but rather make it easier for employers to declare redundancies following a change in management or financial downturn, which can be used to dismiss targeted persons, including trade union leadership. The Committee expects the Government to take the necessary measures to ensure that, in the framework of the current reform of labour laws, trade union affiliation and participation in legitimate trade union activities will be included as one of the grounds of prohibited discrimination at all stages of employment in the relevant legislation, so as to provide effective protection against acts of anti-union discrimination, in line with the Convention. The Committee requests the Government to indicate the exact provisions of amended legislation that provide such protection.

Rapid appeal procedures. The Committee previously requested the Government to take the necessary measures to ensure that all workers who allege anti-union dismissal, including those on probation or in retirement age (section 28(b) of the Employment Act), have access to rapid appeal procedures. It also requested the Government to take the necessary measures to delete the exemption in section 27 of the Employment Act to ensure that the rules on the reversal of the burden of proof are applicable to all proceedings related to anti-union dismissal. The Committee notes with interest the Government’s indication that section 27 of the Employment Act was amended whereby the exemption mentioned in the section has been removed. Observing, however, that no new measures have been adopted to amend section 28(b) of the Employment Act, the Committee once again requests the Government to take the necessary measures to ensure that all workers who allege anti-union dismissal, including those on probation or in retirement age, have access, both in law and in practice, to rapid appeal procedures.

Sufficiently dissuasive sanctions. The Committee previously requested the Government to provide information on the application of sections 5(c) and 29 of the Employment Act (remedies for dismissals without reasonable cause) by the tribunals when dealing with anti-union dismissals. The Committee notes that the Government informs that there have been no anti-union dismissal cases to report but that in cases of dismissals without reasonable cause, the Employment Tribunal, the High Court and the Supreme Court ordered a number of different remedies, including reinstatement to the original position, back wages and compensation. The Committee requests the Government to continue to provide information on the application in practice of sections 5(c) and 29 of the Employment Act in case of anti-union dismissals, specifying the remedies ordered, as well as the type and the amount of sanctions imposable on an employer for acts of anti-union discrimination.

Protection against acts of anti-union discrimination in practice. The Committee notes that the MTUC denounces discriminatory practices in the country, submitting in particular that peaceful union meetings are reprimanded by disciplinary actions, lack of promotion, negative appraisals and redundancies. The Committee requests the Government to provide its comments thereon and trusts that the ongoing legislative reform will contribute to achieving adequate protection against acts of anti-union discrimination both in law and in practice, in full compliance with the Convention.

In its previous comment, the Committee requested the Government to provide statistics on the number of anti-union discrimination complaints filed before the courts, the average duration of the proceedings and their outcome. The Committee also requested the Government to indicate the measures taken or envisaged to facilitate access of workers to the Employment Tribunal from areas other than the capital Male, where the Tribunal is located. The Committee notes the Government’s statement that at the time of the report, no cases of anti-union discrimination have been filed before the courts and that the October 2021 Regulation on audio/video conference participation in the Employment Tribunal hearings establishes avenues for audio/video conference participation in hearings and submission of cases for those located outside the capital. The MTUC alleges however that workers’ associations cannot represent their members in tribunals and that it takes years for tribunals to reach decisions in employment cases. The Committee requests the Government to continue to collect and provide statistics on the number of anti-union discrimination complaints filed before the courts, the average duration of the proceedings and their outcome, as well as on the use of the audio/video conference participation in court proceedings relating to anti-union discrimination complaints.

Article 2. Adequate protection against acts of interference. The Committee previously requested the Government to take the necessary measures, including legislative, to ensure that acts of interference of workers’ and employers’ organizations in each other’s affairs are explicitly prohibited and are accompanied by access to rapid and effective appeal procedures and sufficiently dissuasive sanctions. The Committee notes the information provided by the Government that no explicit prohibitions in this regard are provided in the current draft Industrial Relations Bill but that it could be included in the Bill upon receipt of the necessary policy decisions. Given the Government’s openness to including provisions on protection against acts of interference of workers’ and employers’ organizations in each other’s affairs in the Industrial Relations Bill, the Committee requests the Government to take the necessary measures to this effect, in consultation with the social partners.

Articles 4 and 6. Promotion of voluntary negotiations and collective bargaining in the private and public sectors. The Committee previously requested the Government to take the necessary measures, including legislative, if necessary, to ensure that all workers, with the only possible exception of the police, the armed forces and public servants engaged in the administration of the State can, in law and in practice, negotiate collectively through their trade unions and conclude collective bargaining agreements regulating terms and conditions of their employment. It also requested the Government to provide statistics on the number of collective agreements concluded and the sectors and number of workers covered. The Committee welcomes the Government’s indication that the right to collective bargaining and its governance are extensively covered in the Industrial Relations Bill and that, while awaiting its enactment, the right to collective bargaining can be carried out in practice as there are no legislative prohibitions to this effect. The Committee notes, however, the Government’s indication that at the time of reporting, the Labour Relations Authority has not reported the existence of any collective bargaining agreements and observes that the MTUC denounces the absence of social dialogue and collective bargaining, depriving workers of means of defending their interests and challenging the numerous redundancies that occurred during the COVID-19 pandemic, especially in the tourism sector. Observing that the Government does not provide any details as to the regulation of collective bargaining in the Industrial Relations Bill, the Committee expects the Bill to ensure that all workers, with the only possible exception of the police, the armed forces and public servants engaged in the administration of the State will be able, in law and in practice, to negotiate collectively through their trade unions and conclude collective bargaining agreements regulating terms and conditions of their employment. Noting with regret that the Labour Relations Authority is not aware of the existence of any collective agreement in force in the country and in light of the concerns expressed by the MTUC, the Committee requests the Government to take proactive measures to promote the full development and utilization of collective bargaining both in the private and public sectors. In this respect, the Committee requests the Government to collect and provide information on the number of collective agreements concluded and in force, the sectors concerned and the number of workers covered by these agreements.