Rapport définitif - Rapport No. 230, Novembre 1983

1. 85. The Committee examined this case in its May 1983 session, when it presented an interim report to the Governing Body.
2. 86. Since then the ILO has received the following communications: a letter dated 5 July 1983 from the Government and a letter dated 30 June 1983 from the complainant.
3. 87. Jamaica has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

1. 88. The complaint presented in this case involves the refusal of the Ministry of Labour to organise a ballot in respect of trade union recognition. The decision is said to have been taken on the grounds of erroneous information from the Forestry Industries Development Company Limited (FIDCO), which is said to have changed the employment status of certain workers, employing them as contract workers in order to deprive them of the right to be members of the complainant union.
2. 89. The union approached the Ministry of Labour to renew its request for a ballot and to condemn the behaviour of the FIDCO. According to the union, 34 pay slips were sent to the Ministry of Labour showing that the workers in question were either hourly, daily or weekly paid workers both before and after the date when the claim for trade union recognition was served on the FIDCO, but subsequently their employment status was changed to that of contract workers.
3. 90. Matters came to a head on 3 May 1982 with a work stoppage which, according to the union, was followed by dismissals, in particular among the engineering road crew and transport operators, who have not been reinstated.
4. 91. The complainant alleged that the situation amounted to a violation of the Constitution of Jamaica, of the Labour Relations and Industrial Disputes Act, 1975, and of ILO Conventions.
5. 92. The Government, in its communication of 3 February 1983, pointed out that the complainant union did not specify which ILO Conventions had been breached. As to the allegations of violations of the Constitution of Jamaica and the Labour Relations and Industrial Disputes Act, 1975, the Government pointed out that every union may appeal to the courts of law in Jamaica in the event of infringement of recognised trade union rights by an employer.
6. 93. With regard to the refusal of the Ministry of Labour to organise a ballot, as requested by the complainant union, the Government stated that this decision was taken in accordance with the Act of 1975, which requires at least 40 per cent of workers in a bargaining unit to be members of the union, which condition had not been met by the complainant union.
7. 94. In May 1983, the Committee concluded that it did not have sufficient information at its disposal concerning the allegation that the employment status of workers had been changed to deprive them of their right of association. It also concluded that the legal system in force, which confers upon the Minister of Labour discretionary powers to decide whether to organise a ballot without the possibility of appeal against his decision, entails the risk of bias and abuse, as appears to have happened in the present situation in which the workers, although at present represented by a lawfully constituted union, could not promote and defend their interests through collective bargaining. The Committee requested the Government to consider reviewing the situation and, more particularly, to have recourse to the provisions of the Act of 1975 under which the Minister may refer a dispute to the Industrial Disputes Tribunal.

B. Further developments

1. 95. Since the Committee's previous examination of the case both the complainant and the Government sent further communications to the ILO. The complainant's letter did not contain new allegations, but in its letter of 5 July 1983 the Government stated that, in order for the dispute to be referred to the Industrial Disputes Tribunal, the Minister must decide to cause a ballot to be taken. Such a decision can only be made if the Minister is satisfied, inter alia, that not less than 40 per cent of the workers in relation to whom the request for a ballot has been made are members of the union. According to the Government, in the present case the union failed to satisfy that requirement of the relevant law, and hence the matter cannot be referred to the Industrial Disputes Tribunal. The Government added that, on 25 May 1983, the union served a new claim for bargaining rights. However, according to the Government, the union failed to request the Minister (in writing) to cause a ballot to be taken within 30 days of the date of the claim, as required by the relevant law. Hence, this latter claim has lapsed.

C. The Committee's conclusions

1. 96. As regards the factual aspects of this case the Committee can only note that, despite having been given the opportunity to do so, neither the complainant nor the Government have supplied additional information concerning the allegation that the employment status of certain workers was changed in order to deprive them of the right to join a union. In the absence of such information the Committee is unable to reach conclusions on this aspect of the case.
2. 97. The Committee also takes note of the fact that, in its' letter of 5 July 1983, the Government again states that in order for the dispute to be referred to the Industrial Disputes Tribunal, the Minister must decide to cause a ballot to be taken, and that such a decision can only be made if the Minister is satisfied, inter alia, that not less than 40 per cent of the workers in relation to whom the request for a ballot has been made are members of the union. According to the Government, the union failed to satisfy that requirement of the relevant law, and hence the matter could not be referred to the Industrial Tribunal.
3. 98. The Committee can only recall its previous conclusions that, under section 5 of the Labour Relations and Industrial Disputes Act of 1975 and section 3 of the Regulations, the Minister of Labour has the discretionary power to decide whether to organise a ballot without any possibility of appeal against his decision by the party affected thereby, and that a lawfully constituted trade union may be deprived of the right to promote and defend its members' interests either because these members do not represent 40 per cent of the bargaining unit, which, according to the law, means that a ballot cannot be held or because, following a ballot, it has not obtained the majority of votes. These provisions are not in conformity with Article 4 of Convention No. 98, which has been ratified by Jamaica.
4. 99. The Committee wishes to recall the position adopted by the Committee of Experts on the Application of Conventions and Recommendations namely that, where the law of a country draws a distinction between the most representative trade union and other trade unions, such a system should not have the effect of preventing minority unions from functioning and at least having the right to make representations on behalf of their members and to represent them in cases of individual grievances.
5. 100. The Committee would draw the matter to the attention of the Committee of Experts on the Application of Conventions and Recommendations so that it may examine the legal system now in force which confers upon the Minister of Labour discretionary powers to decide whether to organise a ballot without the possibility of appeal against his decision, and which entails the risk of bias and abuse. It would draw the Committee of Experts' particular attention to the present situation in which workers, although represented by a lawfully constituted union, cannot promote and defend their interests through collective bargaining.
6. 101. The Committee expresses the hope that the Government. will take the necessary steps to make changes in the legislation, so as to bring it into full conformity with the principles laid down in Convention No. 98, ratified by Jamaica, to encourage and promote the development of machinery for voluntary negotiation between employers and workers.