Direct Request (CEACR) - adopted 2012, published 102nd ILC session (2013)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Samoa (Ratification: 2008)

In its previous comments, the Committee noted the Government’s indication that the tripartite partners had drafted a new Labour and Employment Relations Bill (“the draft Bill”) to address all issues related to the Convention. While noting that the draft Bill, which had benefited from ILO technical assistance, contained provisions which were in general in conformity with the Convention, the Committee had drawn the Government’s attention to the need to address the following issues.

Article 2 of the Convention. Right to establish and join organizations without distinction whatsoever. The Committee had previously requested the Government to ensure that all workers and employers, including in the public service and in the agricultural sector, are able to exercise their right to freedom of association, with the sole exception of the armed forces and the police. The Committee notes that the Government indicates in its report that: (i) section 3(b) of the draft Bill provides that the Act applies to agricultural and fisheries sector businesses; (ii) the draft Bill excludes public servants (section 3) but applies to publicly owned undertakings (section 4(a)); (iii) public servants are covered by the Public Service Act 2004, which does not explicitly provide for freedom of association (but the right to freedom of association in the Constitution is applicable); and (iv) in practice, public servants “organize” and are represented by the Public Service Association. The Committee recalls that the standards contained in Convention No. 87 apply to all workers “without distinction whatsoever”, and are therefore applicable to employees of the State. The Committee therefore requests the Government to take the necessary measures to ensure that public servants enjoy the guarantees enshrined in this Convention, and to provide information on any developments in this regard.

Article 3. Right of organizations to draw up their constitutions, elect their representatives, organize their activities and formulate their programmes. The Committee had previously requested the Government to ensure that: (i) workers’ and employers’ organizations shall have the right to draw up their constitutions and rules, elect their representatives in full freedom, organize their administration and activities, and formulate their programmes; and (ii) workers are granted the right to industrial action to defend their economic and social interests with the only possible exception of civil servants exercising authority in the name of the State, 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) or in case of acute national or local crisis. The Committee notes the Government’s indication that: (i) the Incorporated Societies Ordinance covers the process for registering the rules relating to such societies and does not contain any provisions that enable public authorities to restrict the rules, administration and activities of incorporated societies; (ii) the Ministry of Commerce, Industry and Labour sought a legal opinion from the Attorney-General’s Office on the application of the right to organize for public servants, which specifically relates to the existing provisions of the Public Service Act that prevent workers prom participating in industrial action (section 48A(1)(b)); (iii) the Attorney-General’s Office concluded that this provision appears to be inconsistent with the Convention; and (iv) the Government is now actively considering whether an amendment to the Public Service Act is required to bring it into line with the Convention. The Committee hopes that, following the Attorney-General’s Office’s conclusion, all necessary measures will be taken to amend the relevant legislation as requested.

Article 4. Dissolution and suspension. The Committee had previously requested the Government to ensure that workers’ and employers’ organizations are protected from any dissolution or suspension by the administrative authority. The Committee notes the Government’s indication that, under sections 23 and 24 of the Incorporated Societies Ordinance, an incorporated society can be wound up either voluntarily or by the High Court in a limited set of circumstances. The Committee notes, however, that, under section 27, if at any time the Registrar is satisfied that a society is no longer carrying on its operations or has been registered by reason of a mistake of fact or law, he or she may make a declaration that the society is dissolved and make in the register an entry of the dissolution of the society. The Committee requests the Government to take the necessary measures to amend the relevant legislation so as to ensure that the dissolution and suspension of workers’ and employers’ organizations should only be possible through judicial channels, and to provide information on any developments in this regard.

Lastly, the Committee notes that the Government states in its report that the draft Bill is still before Parliament and has not yet been passed into law. The Committee expresses the firm hope that due account will be taken of its comments and that the legislative reform will soon be completed in consultation with the social partners. The Committee requests the Government to provide information on progress made in its report and to supply the new Labour and Employment Relations Act once adopted.