Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Gambia (Ratification: 2000)

The Committee notes with regret that the Government’s report has not been received. It must therefore repeat its previous observation which read as follows:

Scope of the Convention. The Committee notes that Labour Act No. 12 of 1990 (the Act) does not apply to workers engaged in civil service, prison service and domestic service. The Committee notes that according to the Government the new labour bill empowers the Secretary of State to extend the scope of the bill to cover any category of worker excluded. While recalling that only the armed forces, the police and public servants engaged in the administration of the State can be excluded from the guarantees of the Convention, the Committee requests the Government to guarantee that the rights afforded by the Convention are ensured for the abovementioned categories of worker.

Article 1 of the Convention. Protection against acts of anti-union discrimination. The Committee had noted that section 75 of the Act provides that any term or condition in a contract of employment, whether express or implied, prohibiting an employee from becoming or remaining a member of any trade union, or purporting to subject the employee to any penalty, loss of benefit or detriment by reason of such membership, shall be null and void. However, according to section 73(1), not all workers are entitled to a written contract of employment, this type of contract being reserved to specific cases of employment, in particular, fixed-term employment of six months or more. The Committee requests the Government to indicate the way in which workers are guaranteed protection against acts of anti-union discrimination in cases where the employment relationship is not based on a written contract of employment.

The Committee had noted that Part IX, sections 109–125 of the Bill by which the Act was introduced to Parliament contained provisions on protection against dismissal by reason of union membership or because of participation in trade union activities, including strikes, and provided for compensation and reinstatement as remedies for such acts. However, the corresponding provisions are missing from the copy of the Labour Act adopted by Parliament, which the Committee has at its disposal. The Committee therefore requests the Government to transmit a complete copy of the Act.

Article 2. Protection against acts of interference. The Committee had noted that there is no provision in the Act concerning protection against acts of interference by workers’ and employers’ organizations (or their agents) in each other’s affairs. The Committee notes that according to the Government the new labour bill provides protection against acts of interference. The Committee requests the Government to communicate the text of any provisions of the new labour bill that prohibit acts of interference (such as the establishment or financial support of workers’ organizations with the object of placing them under the control of employers or employers’ organizations) and guarantee sufficiently rapid appeal procedures and dissuasive sanctions against such acts.

Article 4. Measures to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers or their organizations and workers’ organizations. The Committee had observed that section 161 of the Act provides that voluntary agreements may be registered by the Commissioner upon the application of both parties to the agreement. Noting that the wording of this section seems to allow discretionary power to deny registration, the Committee recalls that the registration of the collective agreement can be refused only if it has a procedural flaw or does not conform to the minimum standards laid down by general labour law. The Committee notes that according to the Government the new labour bill does not give discretionary power to the Commissioner. It requests the Government to transmit a copy of the relevant provisions.

The Committee had noted that, according to section 168, in order to be recognized as a sole bargaining agent, a trade union must be registered as “efficient”, within the meaning of sections 128(5) and 142 of the Act (i.e. the Registrar should be satisfied that the trade union is and is likely to remain independent and is capable of efficiently representing its members and conducting the trade union affairs). Considering that provisions which allow such great discretionary power to the Registrar are contrary to the principle of the autonomy of the parties in collective bargaining and therefore are not in conformity with the Convention, the Committee requests the Government to repeal or amend sections 128(5), 142 and 168, accordingly.

The Committee also noted that, according to section 168, in order to be recognized as a sole bargaining agent, a trade union should represent a certain percentage of employees under a contract of service (30 per cent in the case of a single union and at least 45 per cent if the establishment in question employs at least 100 people; in this case, the bargaining agent could be composed of two or more trade unions). The Committee recalls that where, under a system for nominating an exclusive bargaining agent, there is no union representing the required percentage to be so designated, collective bargaining rights should not be denied to other unions in the unit, at least on behalf of their own members and requests the Government to take the necessary measures in order to bring the legislation into conformity with the Convention.

The Committee further noted that section 168(6) provides that an employer may, if he or she wishes, organize a secret ballot upon receiving an application to establish a sole bargaining agent. The Committee considers that the organization of a ballot for determining representativeness should be carried out by the authorities or an independent party upon a request presented by a union. While taking note of the Government’s statement according to which the appropriate authorities will be informed of the Committee’s comments in order to make the necessary changes, the Committee requests the Government to amend section 168(6) in accordance with the above.

The Committee had noted that, under section 167, a work committee could be set up at an establishment where at least 100 employees are employed. The Committee notes that the Government has communicated the text of the relevant provisions of the new labour bill. The Committee requests the Government to clarify the role of such committees and more specifically to indicate: (1) whether trade union representatives can be elected to such committees; and (2) whether these committees can negotiate and conclude collective agreements even when a union exists in the undertaking.

Article 6. The Committee had requested the Government to indicate whether public servants not engaged in the administration of the State are granted collective bargaining rights and to specify the relevant legislative provisions. The Committee notes that these categories of worker do not have the right to form unions and therefore do not have the right to collective bargaining. The Committee notes that according to the Government the relevant authorities will be advised to grant the right to collective bargaining to civil servants in the new labour bill.

The Committee trusts that the Government will take all necessary steps to bring its national law into conformity with the Convention and requests the Government to provide information on any measures taken or envisaged in this respect, in particular those concerning the adoption of the new labour bill.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.