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

Direct Request (CEACR) - adopted 2022, published 111st ILC session (2023)

Article 3 of the Convention. Right of organizations to freely elect representatives, organize activities and formulate their programmes. The Committee had previously requested the Government to amend section 22 of the Labour Code, 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 notes the Governments indication that for over 30 years there has been no need for arbitration to bring an end to any collective dispute, as 80 per cent of all labour disputes are settled by the Labour Commissioner. The Committee regrets that section 22 was not amended. The Committee recalls that compulsory arbitration, bringing 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). The Committee urges the Government to take all necessary steps to amend section 22 of the Labour Code so as to bring it into conformity with the Convention and requests the Government to provide information on all progress made in this regard.

Article 4. No dissolution or suspension of organizations by administrative authority. The Committee had requested the Government to indicate whether there was a possibility to appeal to the competent court the Registrar’s decision to cancel or withdraw a certificate of registration of a trade union (section 154 of the Labour Code), and, if so, whether this appeal, as well as an appeal against the Registrar’s decision to suspend or withdraw registration of any trade union or employers’ organisation (section 145(3)) or the decision to declare a trade union or an employers’ organization defunct (section 148(3)), has the effect of a stay of execution. The Committee notes with satisfaction that the Labour Code has been amended to ensure that an appeal to the High Court against the Registrar’s above-mentioned decisions is possible and that such an appeal has the effect of a stay of execution.

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

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.

Direct Request (CEACR) - adopted 2016, published 106th ILC session (2017)

The Committee takes note of the observations of the International Organisation of Employers (IOE) received on 1 September 2016, which are of a general nature.

The Committee takes note of the adoption of the Labour Code 2012 and observes that a number of provisions raise issues of compatibility with the Convention:

Article 3 of the Convention. Right of organizations to freely elect representatives, organize activities and formulate their programmes.

• -Section 160 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 considers to be incompatible with the Convention the requirements that candidates for trade union office should have reached the age of 18.
• -The definition of essential services in section 3 should not include port services, which cannot be considered as 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 of part of the population”). However, consideration might be given to ensuring that users’ basic needs are met or that facilities operate safely or without interruption through the introduction of a negotiated minimum service, as a possible alternative to a total prohibition of strikes. These minimum services should be defined and established with the participation of workers’ and employers’ organizations.
• -Under section 22, any dispute arising generally out of the relationship between the employer and the employee may be referred by either party concerned to the Labour Commissioner for settlement, and where the Labour Commissioner fails to achieve a settlement within 30 days or such longer period as the parties may agree, the Labour Commissioner shall refer the dispute to the Labour Tribunal for determination. This referral would constitute a form of compulsory arbitration. The Committee recalls 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.

Article 4. No dissolution or suspension of organizations by administrative authority. The Committee observes that the Labour Code in its sections 145, 148 and 154 affords the Registrar under certain circumstances (lack of provision of financial information, defunct organizations or proof that the union has wilfully and after notice violated the provisions of the Code) the power to suspend, withdraw or cancel union registration, including the imposition of penalties for its officers continuing its active operations after withdrawal or cancellation of the trade union certificate of registration. The Committee further observes that sections 145 and 148 provide for the possibility to appeal the Registrar’s decision to the High Court, while section 154 is silent in this regard. The Committee must recall 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. This can only be ensured through a normal judicial procedure, which should also have the effect of a stay of execution. Therefore, an appeal to the court should be possible against all suspension, withdrawal or cancellation determinations by the Registrar and the appeal should have the effect of a stay of execution of such determinations until a judicial ruling is handed down on the matter.

The Committee requests the Government to take all necessary measures to bring the Labour Code into conformity with the Convention taking into account the foregoing comments, and to supply information on relevant developments, including sending a copy of any Regulations issued pursuant to section 157 of the Code.

Direct Request (CEACR) - adopted 1995, published 83rd ILC session (1996)

The Committee notes the information supplied by the Government in its report.

It requests the Government to keep it informed in future reports of any developments in respect of legislation concerning recognition or financial regulation of trade unions.

Direct Request (CEACR) - adopted 1995, published 82nd ILC session (1995)

The Committee notes that the Government's report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

The Committee requests the Government to provide an update on the status of the proposed Labour Ordinance 1990 once adopted and to keep it informed regarding any forthcoming legislation concerning recognition or financial regulation of trade unions.

Direct Request (CEACR) - adopted 1993, published 80th ILC session (1993)

The Committee requests the Government to provide an update on the status of the proposed Labour Ordinance 1990 once adopted and to keep it informed regarding any forthcoming legislation concerning recognition or financial regulation of trade unions.