Direct Request (CEACR) - adopted 2018, published 108th ILC session (2019)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Montserrat

Article 3 of the Convention. Right of organizations to freely elect representatives, organize activities and formulate their programmes. In its previous comment, the Committee had requested the Government to amend section 22 of the Labour Code 2012, pursuant to which, a dispute, which is not settled by the Labour Commissioner within 30 days or such longer period as the parties may agree, shall be referred to the Labour Tribunal for determination for a final decision (section 26(1)). The Committee considered that this referral would constitute a form of compulsory arbitration. While noting the Government’s indication in its report that disputes usually reach the Labour Commissioner only after all the other attempts at settlement between the parties have failed and that during the arbitration by the Labour Commissioner there is nothing that prevents the parties from choosing to have their matter settled in a manner acceptable to both parties, the Committee reiterates that compulsory arbitration to bring an end to a collective labour dispute, including a strike, is only acceptable in the case of disputes concerning public servants exercising authority in the name of the State; in conflicts in essential services in the strict sense of the term; or in situations of acute national or local crisis (only for a limited period of time and to the extent necessary to meet the requirements of the situation). However, arbitration accepted by both parties (voluntary) is always legitimate. The Committee reiterates its previous request and trusts that the Government will take all necessary measures to bring section 22 of the Labour Code into conformity with the Convention.

The Committee had further requested the Government to amend section 160(2) of the Labour Code, which sets out that a person under the age of 18, but above the age of 16, shall not be a member of the committee of management, trustee or treasurer of a trade union. Recalling that under the Code, persons over the age of 16 may work and be members of a trade union, the Committee considered that the requirement for the election to a trade union office should be lowered to the same age. In the absence of any further information in this regard, the Committee reiterates its previous request.

The Committee had further noted that the list of essential services included port services. In this respect, it takes due note of the Government’s explanation on the essential role port services play in the island’s health and emergency system, especially taking into account the seismic activities on the island.

Article 4. No dissolution or suspension of organizations by administrative authority. In its previous comment, the Committee had observed that sections 145, 148 and 154 of the Labour Code afforded the Registrar, under certain circumstances, the power to suspend, withdraw or cancel a trade union registration. The Committee had further observed that while section 145 (providing for a suspension or a withdrawal of a registration of any trade union or employer’s organization which fails to submit an annual return) and section 148 (according to which the Registrar may declare a trade union or an employers’ organization to be defunct) provide for the possibility to appeal the Registrar’s decision to the High Court, section 154 is silent in this regard. The Committee notes that pursuant to section 154, the Registrar has the possibility to cancel or withdraw a certificate of registration of a trade union on proof to his or her satisfaction that: a certificate of registration has been obtained by fraud or mistake; the trade union has wilfully and after notice from the Registrar violated any of the provisions of the Labour Code or; the trade union has ceased to exist. The Committee recalls that the suspension, withdrawal or cancellation of trade union registration constitute extreme forms of interference by the authorities in the activities of organizations and should, therefore, be accompanied by all the necessary guarantees, including the right to appeal to the Court against the determinations made by the Registrar under section 154. Such appeals should have the effect of a stay of execution until a judicial ruling is handed down on the matter. The Committee requests the Government to indicate whether under section 154 of the Labour Code there is a possibility to appeal the Registrar’s decision to the competent court and, if so, whether this appeal, under this section as well as sections 145(3) and 148(3) of the Labour Code, has the effect of a stay of execution. The Committee also requests the Government to provide information on whether the Registrar has implemented any suspensions, withdrawals or cancellations under these provisions, and on the results of any appeals taken.

The Committee notes the Government’s indication that the Labour Code is undergoing a review by the Legal Department with a view of making the necessary amendments to bring the Labour Code into conformity with the Convention. The Committee trusts that its comments above will be given due consideration in the framework of the ongoing legislative review and that the relevant provisions will be amended. The Committee requests the Government to provide information on the developments in this regard.