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

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

The Committee welcomes the information provided by the Government on the preparation of the draft Labour Code through tripartite consultations and with technical assistance from the ILO.

Article 1 of the Convention. Adequate protection against acts of anti-union discrimination. In its previous comments, the Committee had requested the Government:

• -to take the necessary legislative measures to ensure that workers are granted adequate protection against all acts of anti-union discrimination at the time of recruitment and throughout the course of employment (section 11 of the Protection of Employment Act only refers to protection against termination of employment on the grounds of union membership or participation in union activities); and
• -to provide information on any development in relation to the Government’s efforts to ensure that the sanctions provided for in the Protection of Employment Act be reviewed so that they are sufficiently dissuasive against all acts of anti-union discrimination.

The Committee notes with interest that the Government indicates in its report that: (i) all the necessary legislative measures have been taken into consideration to ensure that workers are granted adequate protection against acts of anti-union discrimination at the time of recruitment, throughout the course and up to the termination of employment and that these measures form part of the draft Labour Code; and (ii) the existing sanctions outlined in the Act are being reviewed with a view to ensuring that they are increased according to the Committee’s recommendations.

Article 2. Adequate protection against acts of interference. In its previous comments, the Committee had requested the Government to provide information on the measures taken towards the adoption of specific provisions that would explicitly provide for rapid appeal procedures, coupled with effective and dissuasive sanctions, against acts of interference. The Committee notes with interest that the draft Labour Code includes a provision explicitly prohibiting any acts of interference (section 203). The Committee notes the Government’s statement that sanctions will be reviewed in accordance with the Committee’s comments. In this regard, the Committee recalls, in its 2012 General Survey on the fundamental Conventions, paragraph 197, that “adequate protection” against acts of interference requires the establishment of rapid appeal procedures and sufficiently dissuasive sanctions against such acts.

Article 4. Recognition of organizations for the purposes of collective bargaining. In its previous comments, the Committee had requested the Government to provide information on the measures taken towards the adoption of specific provisions to explicitly recognize and regulate in the legislation the right to bargain collectively, in conformity with the Convention. The Committee notes that the Government states in its report that all the Committee’s recommendations have been taken into consideration, and that this issue has been addressed in the draft Labour Code.

The Committee observes that: (i) sections 235 and 236 of the draft Labour Code appear to require the support of more than 50 per cent of the bargaining unit to be recognized as bargaining agents; and (ii) sections 233 and 240 of the draft Labour Code confer discretion on the Labour Commissioner to determine the “appropriate” bargaining unit. In this regard, the Committee recalls that: (i) legislation that unilaterally imposes a level of bargaining or makes it compulsory for bargaining to take place at a specific level may also raise problems of compatibility with the Convention; and (ii) requiring the support of 50 per cent of the members of a bargaining unit to be recognized as a bargaining agent raises problems of compatibility with the Convention, as it means that a representative union which fails to secure the absolute majority may thus be denied the possibility of bargaining. The Committee recalls in its 2012 General Survey on the fundamental Conventions, paragraphs 222 and 234, that under a system of the designation of an exclusive bargaining agent, if no union represents the required percentage of workers to be declared the exclusive bargaining agent, collective bargaining rights should be granted to all the unions in the unit, at least on behalf of their own members.

The Committee requests the Government to make any necessary amendments to the draft Labour Code to ensure conformity with the abovementioned principles. The Committee hopes that the new Labour Code will soon be adopted and requests the Government to provide a copy.