Suites données aux recommandations du comité et du Conseil d’administration - Rapport No. 336, Mars 2005

Effect given to the recommendations of the Committee and the Governing Body

1. 45. The Committee examined this case, which concerns the Government's failure to: (1) enforce a Compulsory Recognition Order (CRO) which it had previously issued; (2) counter attempts by the employer (Turtle Island Resort) to avoid recognition of the complainant (National Union of Hospitality, Catering and Tourism Industries Employees - NUHCTIE) through delaying tactics; and (3) counter efforts to prevent workers from joining the union through anti-union dismissals and interference, at its June 2004 meeting [see 334th Report approved by the Governing Body at its 290th Session] and made the following recommendations:
   • (a) Noting that the request for the recognition of the National Union of Hospitality, Catering and Tourism Industries Employees (NUHCTIE) as the majority union at the Turtle Island Resort dates back to November 2002 and that the Compulsory Recognition Order has been issued in this framework, the Committee requests the Government to take all necessary measures of inspection, conciliation and enforcement, in accordance with national law, with a view to ensuring the implementation of the Compulsory Recognition Order, and to keep it informed in this respect.
   • (b) The Committee requests the Government to take all necessary measures so as to ensure that the NUHCTIE enjoys the facilities necessary for the proper exercise of its functions, including access to the Turtle Island Resort and the possibility to meet with management and trade union members without impairing the efficient operation of the undertaking. The Committee requests to be kept informed in this respect.
   • (c) Deploring that the Government has not yet taken any action to guarantee protection against acts of interference despite repeated requests, the Committee urges it to take all necessary measures, including legislation, so as to investigate and put an end to any acts of anti-union discrimination and interference in this case. The Committee requests to be kept informed in this respect.
2. 46. In a letter dated 21 July 2004, the Government indicates that it did not fail to enforce the CRO concerning recognition of the complainant NUHCTIE by the Turtle Island Resort. The Government specifies that under the provisions of the Trade Unions (Recognition) Act 1998, the parties affected by the CRO (i.e. the complainant and the employer in this case) had to make all efforts to convene a meeting with the aim of concluding a collective agreement. The Government adds that the law encourages negotiations between the parties without third-party (government) interference to enhance a positive industrial relations climate among the social partners. The Government will only intervene once a report is received from either party that they are unable to finalize an agreement as stipulated under the Trade Disputes Act, even if one of the parties is using delaying tactics. Similarly, since the union claimed that efforts were made by the company to prevent workers from joining the union through anti-union dismissals and interference, the union could have reported a trade dispute for unfair dismissal and for employer's non-compliance with section 59 of the Trade Unions Act for violating the workers' freedom to join a union of their own choice. This would have provided it with an opportunity to have these matters amicably resolved through the government machinery for settlement of disputes under the Trade Disputes Act. However, the Government notes, the complainant union never reported a trade dispute.
3. 47. As for the Committee's recommendation to the Government to take all necessary measures of inspection, conciliation and enforcement of labour laws with a view to ensuring the implementation of the CRO, the Government states that the complainant had denounced the employer's refusal and delaying tactics in negotiating a collective agreement, and this had led the Government to file charges against the employer for failure to comply with the CRO. However, in reality this was a ploy by the complainant to force the employer to negotiate its log of claims with a view to getting an agreement signed while the case was still before the court.
4. 48. The Government adds that the complainant had not at any time admitted that they had made a first round of negotiations on their log of claims, thus lying to their affiliates abroad that the employer had failed to negotiate and that the Government had never intervened. However, the Government notes, in reality it had been waiting all this time for the complainant's report, since it does not interfere and invoke the settlement machinery until either party requests its intervention by reporting a trade dispute.
5. 49. As for the Committee's recommendation that the facilities to be afforded to workers' representatives should include access to the workplace and to the management of the undertaking for the proper exercise of their functions, the Government notes that the management came to the mainland and held their first negotiations with the union on the collective agreement. Thus, although the management had refused to allow the union to meet their members, they were willing to negotiate over the union's log of claims. Immediately after the CRO was issued, the union vide its letter dated 27 January 2003 submitted its log of claims to the management. However, it was not until five months later that they had arranged for the first negotiations. They never followed up from there until today. The Government considers that, given this situation, it should not be blamed for the inefficiency of others who do no live up to their fundamental responsibilities to the workers whom they purport to represent. The Government adds that due to the union's inaction for about 18 months after the issuance of the CRO, the members withdrew their membership. Following an application for derecognition by the employer on 23 June 2004, an exercise was conducted to determine the percentage of union membership and it was established from the union's records that they did not have a single financial member, hence the Government's decision to withdraw the recognition.
6. 50. As for the allegations concerning the Government's alleged failure to counter repeated attempts by the employer to prevent workers from joining the union through dismissals and acts of interference such as the promotion of a staff association, the Government notes that the union had not reported these cases to the Government. Through the local media, they had stated that about 60 workers were dismissed but not a single complaint was lodged. In 2000, the union had reported the unfair dismissal of two former employees and even though the union was not recognized then, the Government had accepted the report and activated the dispute settlement machinery which resulted in the settlement of their case through the Arbitration Tribunal.
7. 51. The Government adds that section 4(1)(a)(i) of the Trade Disputes Act states that no trade dispute which arose more than one year from the date it is reported under section 3 shall be accepted by the Permanent Secretary for Labour, Industrial Relations and Productivity. The Government considers that the complainant was aware of the above provisions and intentionally did not report the dispute as the one-year period had expired. The one-year period was sufficient for them to report the matters raised and they had no excuse whatsoever for not carrying out such an important task. Furthermore, the union was complaining about the formation of a staff association without actually understanding its role. The association was registered as an industrial association and not as a trade union and therefore could not perform the role of a trade union or represent members on any industrial relation matters.
8. 52. The Government finally states that it intends to legislate on the Industrial Relations Bill by the end of this year so as to further bolster the position of unions and guarantee adequate protection to workers and their organization from any unfair labour practice.
9. 53. With regard to its request that the Government take all necessary measures to enforce the CRO issued for the recognition of the National Union of Hospitality, Catering and Tourism Industries Employees (NUHCTIE) as the majority union at the Turtle Island Resort, the Committee notes that the Government initially instituted proceedings against the employer with a view to having the CRO enforced but later on formally withdrew the charges on the grounds that the complainant had made false allegations. The complainant had apparently not indicated that the employer had participated in a first round of negotiations and therefore had in fact recognized the union as representative for collective bargaining purposes. The Committee also notes that according to the Government, the complainant did not request the intervention of the Government's settlement machinery in order to overcome any difficulties in the negotiation and remained inactive for 18 months. The Committee finally notes that in June 2004, the complainant's recognition as representative union was withdrawn at the request of the employer since it turned out that the complainant did not have any financial members.
10. 54. With regard to its request that the Government take all necessary measures, including legislation, so as to investigate and put an end to any acts of anti-union discrimination and interference in this case, the Committee notes that according to the Government, the complainant did not report any act of anti-union dismissal and interference by the employer, as it could have done on the basis of section 59 of the Trade Unions Act, so as to have these matters amicably resolved, and as it had done in 2000 with regard to two former workers. On the contrary, according to the Government, the complainant indicated to the local media that 60 workers had been dismissed and let the legal deadline for reporting the trade dispute elapse. Furthermore, according to the Government, the complainant was protesting about the formation of a staff association without actually understanding its role, since such an association could not perform the role of a trade union and represent members on any industrial relations matters.
11. 55. While taking due note of this information, the Committee considers that the main issue in this case is whether acts of anti-union discrimination and interference took place to prevent the effective recognition of a newly established union and undermine the latter, despite its apparent recognition by the employer (through participation in a first round of negotiations). The Committee also considers that even if the complainant had not reported acts of anti-union discrimination and interference to the Government, the latter was aware of the complainant's allegations, not only through the local media but also through this Committee which had addressed a specific request to the Government to investigate them. Thus, the Committee is of the view that the Government could have taken certain steps to examine the situation even if the complainant had not reported the case for amicable settlement. The Committee recalls for instance, that governments should take the necessary measures to enable labour inspectors to enter freely and without previous notice any workplace liable to inspection and to carry out any examination, test or inquiry which they may consider necessary, in order to satisfy themselves that the legal provisions - including those relating to anti-union discrimination - are being strictly observed [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 753]. The Committee also recalls that, since inadequate safeguards against acts of anti-union discrimination, in particular against dismissals, may lead to the actual disappearance of trade unions composed only of workers in an undertaking, additional measures should be taken to ensure fuller protection for leaders of all organizations, and delegates and members of trade unions, against any discriminatory acts [see Digest, op. cit., para. 700].
12. 56. The Committee expresses regret at the withdrawal of the complainant's recognition as representative union. It requests the Government to exercise greater vigilance in the future when it comes to ensuring protection against acts of anti-union discrimination and interference and to take all necessary measures to ensure that an expeditious and effective mechanism is in place to prevent and remedy such acts.
13. 57. The Committee takes due note in this respect of the Government's statement that it intends to legislate on the Industrial Relations Bill by the end of this year so as to guarantee protection against unfair labour practices. The Committee hopes that the Government will spare no effort in order to have legislation in this area enacted as quickly as possible. Noting, moreover, that the Government recently ratified Convention No. 87, the Committee strongly encourages the Government to avail itself of the ILO's technical assistance in the process of drafting new legislation.
14. 58. With regard to its request that the Government take all necessary measures so that the complainant may enjoy the facilities necessary for the proper exercise of its functions, including access to the workplace and management without impairing the efficient operation of the undertaking, the Committee notes that according to the Government, the management did refuse to allow the union access to the workplace so as to meet their members, but did not refuse to meet the complainant and came to the mainland in order to hold a first round of negotiations. The Committee once again recalls that governments should guarantee access of trade union representatives to workplaces, with due respect for the rights of property and management, so that trade unions can communicate with workers, in order to apprise them of the potential advantages of unionization [see Digest, op. cit., para. 954]. The Committee reiterates its request to the Government to take all necessary measures so as to ensure that trade unions, including the complainant, enjoy the facilities necessary for the exercise of their functions, such as access to the workplace and the possibility to meet with management and members without impairing the efficient operation of the undertaking and to keep it informed in this respect.