Direct Request (CEACR) - adopted 2015, published 105th ILC session (2016)

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

The Committee takes note of the observations provided by the International Organisation of Employers (IOE) in a communication received on 1 September 2015, which are of a general nature.

Article 2 of the Convention. Right to establish and join organizations without distinction whatsoever. In its previous comments, the Committee expressed the firm hope that the adoption process of the Labour and Employment Relations Bill would soon be completed in consultation with the social partners, and that due account would be taken of its comments. The Committee also requested the Government to supply the new Labour and Employment Relations Act once adopted. The Committee welcomes the adoption of the Labour and Employment Relations Act 2013 (LERA) and observes that section 22 guarantees freedom of association to employees and employers and prohibits anti-union discrimination in recruitment. While noting with interest that the LERA contains provisions which are in general in conformity with the Convention, the Committee also notes that it only covers employees instead of all workers. In this regard, the Committee notes that the Government indicates in its report that Article 2 of the Convention is given effect through section 2 of the LERA, which defines “employee” as a person who enters into or works under a contract with an employer, whether the contract be for manual labour, clerical work or otherwise and whether it be a contract of service or apprenticeship or a contract personally to execute work and includes workers and managerial personnel. The Committee requests the Government to confirm that the LERA also covers independent and outsourced workers and workers without employment contracts.

The Committee had also previously requested the Government to take the necessary measures to ensure that public servants enjoy the guarantees enshrined in the Convention and to provide information on any developments in this regard. The Committee notes that the Government indicates that: (i) section 3(4)(a) and (b) of the LERA provides that the Act applies to every public body as defined under the Public Bodies (Performance and Accountability) Act 2001, whether or not duly incorporated by an Act of Parliament; and (ii) the Government has contacted the Public Service Commission seeking comments on the applicability of the LERA to public servants and is awaiting a reply. However, the Committee observes that under section 3(1)(a) of the LERA the service of Samoa (that is, public service as defined by the Constitution) is excluded from the application of the Act. Therefore, the Committee requests the Government to provide further information on the applicability of the LERA to public servants, including the views of the Public Service Commission and the meaning of the exclusion contained in section 3(1)(a) of the LERA, and to take the necessary measures to ensure that public servants enjoy the guarantees enshrined in the Convention.

Article 3. Right of organizations to draw up their constitutions, elect their representatives, organize their activities and formulate their programmes. The Committee had previously expressed the hope that, following the Attorney-General’s conclusion that section 48A(1)(b) of the Public Services Act 2004 appears to be inconsistent with the Convention in that it prevents workers from participating in strike action, all necessary measures would be taken to amend the relevant legislation as requested. The Committee notes that the Government indicates that there is currently no progress in amending the Public Service Act 2004 but that the Government is considering amending the legislation in light of the findings of the Attorney-General, and that it will inform the Committee of any such amendments. The Committee once again requests the Government to take all necessary measures to amend the relevant legislation to bring it into full conformity with the Convention and to provide information on any developments in this regard.

Article 4. Dissolution and suspension. The Committee had previously requested the Government to take the necessary measures to amend the Incorporated Societies’ Ordinance 1952 so as to ensure that the dissolution and suspension of workers’ and employers’ organizations is only possible through judicial channels, and to provide information on any developments in this regard. The Committee notes that the Government indicates that the Ministry of Justice and Courts Administration is considering the matter. The Committee once again requests the Government to take the necessary measures to amend the relevant legislation so as to ensure that workers’ and employers’ organizations can only be dissolved and suspended through judicial channels, and to provide information on any developments in this regard.