Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Namibia (Ratification: 1995)

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

Articles 1 and 2 of the Convention. Protection in practice against acts of anti-union discrimination and interference.In its previous comment, the Committee had requested detailed information on complaints against acts of anti-union discrimination and interference brought to courts or to arbitration and the way they were being handled by the competent bodies. The Committee notes the Government’s indication that, in practice, there were no complaints on alleged anti-union discrimination referred to either forum. Highlighting thatthe absence of anti-union discrimination complaints may be due to reasons other than an absence of anti-union discrimination acts, the Committee requests the Government to take the necessary measures to ensure that, on the one hand, the competent authorities take fully into account in their control and prevention activities the issue of anti-union discrimination, and that on the other hand, the workers in the country are fully informed of their rights regarding this issue. The Committee requests the Government to provide information on measures taken in this regard, as well as any statistics concerning the anti-union discrimination acts reported to the authorities and the decisions taken in this respect.

Article 4. Recognition for the purposes of collective bargaining.In its previous comment, the Committee requested the Government to provide exhaustive information on the possibility for minority unions in the bargaining unit to enjoy collective bargaining rights when there is no union representing 50 percent of the workers concerned, and to provide concrete examples of such collective agreements concluded. The Committee notes that while it does not refer to specific collective agreements, the Government indicates that the Tripartite Task Force that examined the revision of the Labour Act in 2021 agreed to amend the Labour Act to allow for a group of trade unions to be recognized as exclusive bargaining agent. While taking due note of the work of the tripartite task force and noting that the Government does not refer to a possible change in the representativeness threshold required for bargaining collectively, the Committee requests the Government to ensure that the reform of the legislation envisages solutions allowing for the exercise of the right to collective bargaining where no union or group of unions would represent, either separately or jointly 50 per cent of the workers concerned. The Committee requests the Government to provide information on the progresses made in this regard.

Collective bargaining of trade union federations and confederations.In its previous comment, the Committee requested the Government to provide information on the measures taken to ensure that trade union federations and confederations can exercise the right to bargain collectively. The Committee notes the Government’s indication that, once the review of the Labour Act initiated by the Tripartite Task Force is completed, collective agreements may be signed by federations. Welcoming this indication, the Committee therefore expects that the final amendments to the Labour Act will explicitly provide for the capacity of federations and confederations to negotiate and sign collective agreements. The Committee requests the Government to provide information on the progresses made in this regard.

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

The Committee takes note of the Government’s reply to the observations of the International Trade Union Confederation (ITUC) received on 1 September 2017, alleging violations of the Convention in specific enterprises and public institutions.

Articles 1 and 4 of the Convention. Adequate protection against anti-union discrimination and promotion of collective bargaining in export processing zones (EPZs). The Committee previously requested the Government to indicate the concrete measures taken to prohibit anti-union discrimination and promote collective bargaining in EPZs and to provide statistics in this respect. The Committee notes that the Government limits itself to indicating that no complaints alleging anti-union discrimination in EPZs were referred to the Office of the Labour Commissioner (administrative authority). Recalling that the Convention fully applies to EPZs, the Committee requests the Government once again to take specific action to ensure the application of Articles 1 and 4 of the Convention in EPZs and to provide relevant information and statistics on any progress in this regard.

Article 6. Rights of prison staff.The Committee, in its previous observation, expressed its expectation and firm hope that the Government would ensure that prison staff enjoy the rights enshrined in the Convention. The Committee welcomes the Government’s indication that the Tripartite Task Force, responsible for the review of the Labour Act, intends, in order to ensure the conformity of the Act with the Convention, to delete section 2(d) that excludes the prison service from its scope of application. The Committee hopes that the proposed amendment will be adopted soon, and that it will ensure the right of prison staff to enjoy the guarantees under the Convention. The Committee requests the Government to provide information on any progress in this regard.

The Committee is raising other matters in a request addressed directly to the Government.

Direct Request (CEACR) - adopted 2017, published 107th ILC session (2018)

Articles 1 and 2 of the Convention. Protection in practice against acts of anti-union discrimination and interference. In its previous direct request, the Committee had requested the Government to provide detailed information indicating whether any cases alleging anti-union discrimination and interference had proceeded to arbitration under the Labour Act and, if so, the length of time that those arbitration procedures had taken as well as the outcome. The Committee notes the Government’s indication that since the commencement of the Alternative Dispute Resolution (ADR) system in 2007, no case of such nature has been submitted to the Labour Commissioner. Observing that cases alleging anti-union discrimination can be also brought directly before the Labour Court, the Committee requests the Government to provide detailed information on the number and nature of complaints brought to courts or to arbitration, the length of proceedings and their outcome as well as the remedies granted and the penalties imposed.

Article 4. Recognition for purposes of collective bargaining. In its previous direct request, the Committee had noted the Government’s indication that there was no obligation on employers to bargain collectively with a union that has less than 50 per cent representation in the bargaining unit, as the law does not make provision for minority unions to enjoy bargaining rights. It had, however, noted with interest the example of a collective agreement signed with three minority trade unions on 10 July 2014, setting minimum wages between the Security Association of Namibia and the Namibia Transport and Allied Workers Union, the Namibia Security Guards Watchmen’s Union, and the Namibia Independent Security Union. The Committee recalls that while it is acceptable that the union which represents the majority or a high percentage of workers in a bargaining unit should enjoy preferential or exclusive bargaining rights, it considers that in cases where no union meets these conditions, or does not enjoy such exclusive rights, minority trade unions should at least be able to conclude a collective or direct agreement on behalf of their own members (see General Survey on the fundamental Conventions, 2012, paragraph 226). The Committee requests the Government to provide exhaustive information on the possibility for minority unions in the bargaining unit to enjoy collective bargaining rights in cases where there is no union representing 50 per cent of the workers concerned, and in particular to give additional concrete examples of collective agreements signed under the abovementioned circumstances.

Trade union federations and confederations and collective bargaining. In its previous direct request, the Committee had requested the Government to provide information on any steps taken to ensure that trade union federations and confederations can exercise the right to bargain collectively. The Committee notes the Government’s indication that the Labour Act already allows registered trade unions or a group of registered trade unions representing the majority of employees to bargain collectively. The Committee further notes that the Government states that, in practice, trade unions are affiliated to regional and international confederations, and that it has never received an application from any federation to form a confederation. The Committee notes with interest the Government’s indication that the Labour Act is currently under review and that the right to form confederations as well as the right for the federations and confederations to bargain collectively will be spelt out explicitly in the final amendments. The Committee expects that the relevant legislative amendments will soon be adopted in order to ensure that trade union federations and confederations can exercise the right to bargain collectively. The Committee requests the Government to provide information on any progress made in this regard. The Committee reminds the Government once again that it may seek technical assistance from the Office with regard to the possible role and involvement of federations and confederations in the national system of collective bargaining.

Observation (CEACR) - adopted 2017, published 107th ILC session (2018)

The Committee notes the observations of the International Trade Union Confederation (ITUC), received on 1 September 2017, alleging violations of the Convention in specific enterprises and public institutions. The Committee requests the Government to provide its comments in this regard.

Articles 1 and 4 of the Convention. Adequate protection against anti-union discrimination and promotion of collective bargaining in export processing zones (EPZs). In its previous observation, the Committee had requested the Government to indicate the steps that it was taking to ensure the full application of the Convention in EPZs in practice, in particular by promoting collective bargaining and effective protection against anti-union discrimination. The Committee notes the Government’s indication that the Convention as well as the freedom of association provisions of the Labour Act are fully applicable in EPZs. The Committee welcomes the example of the mining sector provided by the Government according to which the Mineworkers Union of Namibia (MUN) has been granted exclusive bargaining status in a mineral processing EPZ company. The Committee requests the Government to continue to provide examples in practice and to indicate the concrete measures taken to ensure protection against anti-union discrimination and the promotion of collective bargaining in EPZs. The Committee also requests the Government to supply information on the number of complaints alleging anti-union discrimination and their outcome as well as the number of collective agreements signed in the EPZs and the number of workers covered.

Article 6. Rights of prison staff. In its previous observation, the Committee trusted that the Government would take steps to ensure that the prison services enjoy the guarantees under the Convention in the near future, and had requested the Government to provide information on developments in relation to the adoption of new legislation in this regard. The Committee notes the Government’s statement in its report on the application of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), for the year 2017, in which it indicates that a Tripartite Working Committee has been established and is currently reviewing the Labour Act, including the prison service issue. The Committee expects and firmly hopes that the comments it has been making in this regard for a number of years will be taken into account during the legal review, in order to ensure that prison staff enjoy the rights enshrined in the Convention. It requests the Government to provide information on any progress made in this regard.

The Committee is raising other matters in a request addressed directly to the Government.

Direct Request (CEACR) - adopted 2014, published 104th ILC session (2015)

Articles 1 and 2 of the Convention. Protection in practice against acts of anti-union discrimination and interference. In its previous direct request, the Committee had requested the Government to provide details on the rapidness of arbitration procedures in cases alleging anti-union discrimination and interference. The Committee notes that the Government again indicates that section 86(7) of the Labour Act 2007 provides that the arbitrator may conduct the arbitration of disputes in a manner that she/he considers appropriate in order to determine the dispute fairly and quickly. Recalling that cases concerning anti-union discrimination and interference should be examined rapidly, so that the necessary remedies can be really effective, the Committee requests the Government to provide detailed information indicating whether any cases alleging anti-union discrimination and interference have proceeded to arbitration under the Act and, if so, the length of time that those arbitration procedures took as well as the outcome.

Article 4. Recognition for purposes of collective bargaining. In its previous direct request, the Committee had requested the Government to indicate whether, if no union covers more than 50 per cent of the workers, the minority unions in the bargaining unit enjoy collective bargaining rights, at least on behalf of their members and to indicate whether, in practice, minority unions enjoy collective bargaining rights in cases where there is no union representing 50 per cent of the workers concerned. The Committee notes that the Government indicates that there is no obligation on employers to bargain collectively with a union that has less than 50 per cent representation in the bargaining unit, as the law does not make provision for minority unions to enjoy bargaining rights. The Committee however notes with interest that the Government refers to the example of a collective agreement signed with three minority trade unions on 10 July 2014, setting minimum wages between the Security Association of Namibia and the Namibia Transport and Allied Workers Union, the Namibia Security Guards Watchmen’s Union, and the Namibia Independent Security Union.

Trade union federations and confederations and collective bargaining. In its previous direct request, the Committee had requested the Government to indicate whether trade union federations and confederations enjoy the right to bargain collectively and, if so, to specify the legal basis for said right. The Committee notes the Government’s indication that trade union federations and confederations derive their membership from affiliated registered trade unions who usually bargain on matter of mutual interest for the workers. The Committee further notes that the Government indicates a need to better understand the type of negotiations in which trade union federations could be involved in collective bargaining. The Committee recalls that the choice of level of collective bargaining should normally be made by the partners themselves, since they are in the best position to decide the most appropriate bargaining level including, if they so wish, by adopting a mixed system of framework agreements supplemented by local or enterprise-level agreements. The Committee hopes that the Government will be in a position to take steps to ensure that trade union federations and confederations can exercise the right to bargain collectively and requests the Government to provide it with information on any steps in takes in this regard. The Committee reminds the Government that it may seek technical assistance from the Office in this regard.

Observation (CEACR) - adopted 2014, published 104th ILC session (2015)

The Committee notes the 2011 observations of the International Trade Union Confederation (ITUC), as well as those received on 1 September 2014.

Articles 1 and 4 of the Convention. Protection against anti-union discrimination and promotion of collective bargaining in export processing zones (EPZs). In its previous observation, the Committee had requested the Government to provide comments on the observations of the ITUC concerning difficulties in the application of the provisions of the Convention in EPZs. The Committee notes that the Government indicates that the exclusion of EPZs from certain regulations relating to conditions of employment was abolished, as it had discovered that workers in EPZs were subjected to unsafe working conditions, low wages, high work intensity and suppression of labour rights. In that context, the Committee requests the Government to indicate the steps that it is taking to ensure the full application of the Convention in EPZs in practice, in particular by promoting collective bargaining and effective protection against anti-union discrimination.

Article 6. Rights of prison staff. In its previous observation, the Committee had expressed the hope that guarantees under the Convention would be extended to the prisons services through the adoption of the new Labour Act in the near future. The Committee notes the Government’s indication that new legislation has not been tabled to Cabinet and that a proposal was made in August 2014 for a tripartite meeting to include the Minister of Labour and Social Welfare, the Minister of Prison Services and a union representative supported by ILO technical assistance, to discuss ways to resolve this matter. The Committee trusts that the Government will take steps to ensure that the prison services enjoy the guarantees under the Convention in the near future, and requests the Government to provide information on developments in relation to the adoption of new legislation in this regard.

The Committee is raising other matters in a request addressed directly to the Government.

Direct Request (CEACR) - adopted 2010, published 100th ILC session (2011)

Articles 1 and 2 of the Convention. Protection against acts of anti-union discrimination and interference. In its previous comments, the Committee had noted that the Labour Act of 2007 prohibits and sanctions acts of anti-union discrimination and acts of interference by the employer in the internal affairs of a trade union. The Act also provides for reinstatement and back pay compensation awards as remedies for acts of anti-union discrimination. The Committee further noted that allegations of anti-union discrimination or interference may be referred to the Labour Commissioner for referral to arbitration, and cases alleging anti‑union discrimination suits may also be brought before the Labour Court. The Committee had requested the Government to provide detailed information on the rapidness of the arbitration procedures in cases alleging anti-union discrimination and interference. The Committee notes that, unless a dispute has already been conciliated, the arbitrator must attempt to resolve the dispute through conciliation before beginning the arbitration (section 86(5) of the Labour Act). In this regard, the Committee notes that the Government indicates in its report that, according to section 82(10) of the Labour Act, a conciliator must attempt to resolve a dispute within 30 days of the date the Labour Commissioner received the referral of the dispute. However, the Government does not provide details on the rapidness of the subsequent arbitration procedures (Part C, section 84 and ss. of the Labour Code) in cases alleging anti-union discrimination and interference. In this regard, the Committee notes that, according to section 86(7)(a) of the Labour Act, the arbitrator may conduct the arbitration in a manner that he considers appropriate in order to determine the dispute fairly and quickly. The Committee therefore once again requests the Government to provide details on the rapidness of the arbitration procedures in cases alleging anti-union discrimination and interference.

Article 4. Recognition for purposes of collective bargaining. In its previous comments, the Committee had noted that section 64(1) of the Labour Act states that: “a registered trade union that represents the majority of the employees in an appropriate bargaining unit is entitled to recognition as the exclusive bargaining agent of the employees in that bargaining unit for the purpose of negotiating a collective agreement on any matter of mutual interest”. Furthermore, section 64(2) prohibits an employer or employers’ organization from recognizing a trade union as an exclusive bargaining agent unless the requirements of section 64(1) have been fulfilled. The Committee recalled that problems may arise when the law stipulates that a trade union must receive the support of 50 per cent of the members of a bargaining unit to be recognized as a bargaining agent: a majority union which fails to secure this absolute majority is thus denied the possibility of bargaining. The Committee also recalled that, in these conditions, if no union covers more than 50 per cent of the workers, collective bargaining rights should be granted to all the unions in this unit, at least on behalf of their own members (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 241). In this respect, the Committee notes that, in its reports, the Government refers to section 64(2) and (3) of the Labour Act, the section already mentioned above by the Committee, without further explanations. The Committee therefore once again requests the Government to indicate whether, if no union covers more than 50 per cent of the workers, the minority unions in the bargaining unit enjoy collective bargaining rights, at least on behalf of their members. The Committee also requests the Government to indicate in practice, whether, minority unions enjoy collective bargaining rights in cases where there is no union representing 50 per cent of the workers concerned. If this is the case, the Committee requests the Government to provide relevant examples and statistics.

Trade union federations and confederations and collective bargaining. Finally, in its previous comments, the Committee had requested the Government to indicate whether trade union federations and confederations enjoy the right to bargain collectively and, if so, to specify the legal basis for said right. The Committee considers that section 64 of the Labour Act poses a problem with the Convention, in that the requirement of exclusive bargaining agent may lead to a prohibition on trade union federations and confederations from engaging in collective negotiations. The Committee also considers that the right to bargain collectively should also be granted to federations and confederations; any restriction or prohibition in this respect hinders the development of industrial relations and, in particular, prevents organizations with insufficient means from receiving assistance from higher level organizations, which are in principle better equipped in terms of staff, funds and experience to succeed in such bargaining. The Committee recalls that the choice should normally be made by the partners themselves, since they are in the best position to decide the most appropriate bargaining level, including, if they so wish, by adopting a mixed system of framework agreements supplemented by local or enterprise-level agreements (see General Survey, op. cit., paragraph 249). In these circumstances, the Committee once again requests the Government to indicate whether trade union federations and confederations enjoy the right to bargain collectively and, if so, to specify the legal basis for said right.

Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

Article 6 of the Convention. Rights of prison staff. The Committee had  previously noted that section 2(2)(d) of the Labour Act excludes members of the prison service from the Labour Act’s provisions, unless the Prisons Service Act provides otherwise, and had also noted that the Prisons Service Act does not provide for the extension of the new Labour Act’s guarantees to the prison service. The Committee notes that the Government indicates in its report that it is in the process of consulting Cabinet with the hope that permission will be granted to proceed with the legislative amendments that are required. In these circumstances, the Committee once again expresses the hope that the necessary legislative amendments to guarantee, to the prisons services, the rights provided under the Convention will be adopted in the near future and once again requests the Government to indicate, in its next report, any developments in this regard.

International Trade Union Confederation comments. The Committee notes the comments of the International Trade Union Confederation (ITUC) in a communication dated 24 August 2010 concerning difficulties in the application of the Convention in the export processing zones. The Committee requests the Government to provide its observations thereon.

The Committee is raising other points in a request addressed directly to the Government.

Direct Request (CEACR) - adopted 2009, published 99th ILC session (2010)

The Committee notes that the Government’s report provides no information with regard to the matters it had previously raised. It therefore repeats its previous request which read as follows:

Articles 1 and 2 of the Convention. Protection against acts of anti-union discrimination and interference. The Committee had noted that the Labour Act of 2007 prohibits and sanctions acts of anti-union discrimination and acts of interference by the employer in the internal affairs of a trade union. The Act also provides for reinstatement and back pay compensation awards as remedies for acts of anti-union discrimination. The Committee further noted that allegations of anti-union discrimination or interference may be referred to the Labour Commissioner for referral to arbitration, and cases alleging anti-union discrimination suits may also be brought before the Labour Court. The Committee requests the Government to provide detailed information on the rapidness of the arbitration procedures in cases alleging anti-union discrimination and interference, including the average time period for the disposal of such cases.

Article 4. Recognition for purposes of collective bargaining. The Committee had noted that section 64(1) of the Labour Act states that “a registered trade union that represents the majority of the employees in an appropriate bargaining unit is entitled to recognition as the exclusive bargaining agent of the employees in that bargaining unit for the purpose of negotiating a collective agreement on any matter of mutual interest”. Furthermore, section 64(2) prohibits an employer or employers’ organization from recognizing a trade union as an exclusive bargaining agent unless the requirements of section 64(1) have been fulfilled. The Committee recalled that problems may arise when the law stipulates that a trade union must receive the support of 50 per cent of the members of a bargaining unit to be recognized as a bargaining agent: a majority union which fails to secure this absolute majority is thus denied the possibility of bargaining. The Committee also recalled that, in these conditions, if no union covers more than 50 per cent of the workers, collective bargaining rights should be granted to all the unions in this unit, at least on behalf of their own members (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 241). The Committee therefore requests the Government to indicate whether, if no union covers more than 50 per cent of the workers, the minority unions in the bargaining unit enjoy collective bargaining rights, at least on behalf of their members.

Finally, the Committee requests the Government to indicate whether trade union federations and confederations enjoy the right to bargain collectively and, if so, to specify the legal basis for said right.

Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

The Committee notes that according to the Government the Labour Act. No. 11 of 2007 entered into force on 1 November 2008.

Article 6 of the Convention. Rights of prison staff. The Committee had previously noted that section 2(2)(d) of the Labour Act excludes members of the Namibian prison service from the Labour Act’s provisions, unless the Prisons Service Act provides otherwise, and had also noted that the Prisons Service Act does not provide for the extension of the new Labour Act’s guarantees to the Namibian prison service. Noting that the Government provides no information respecting this matter, the Committee once again expresses the hope that the necessary legislative amendments to guarantee, to the prisons services, the rights provided under the Convention will be adopted in the near future and once again requests the Government to indicate, in its next report, any developments in this regard.

The Committee is raising other points in a request addressed directly to the Government.

Direct Request (CEACR) - adopted 2008, published 98th ILC session (2009)

The Committee notes the provisions of the new Labour Act of 2007.

Articles 1 and 2 of the Convention. Protection against acts of anti-union discrimination and interference. The Committee notes that the Labour Act of 2007 prohibits and sanctions acts of anti-union discrimination, as well as acts of interference by the employer in the internal affairs of a trade union. The Act also provides for reinstatement and the issuance of back pay compensation awards as remedies for acts of anti-union discrimination. The Committee further notes that allegations of anti-union discrimination or interference may be referred to the Labour Commissioner for referral to arbitration, and cases alleging anti-union discrimination suits may also be brought before the Labour Court. The Committee requests the Government to provide detailed information on the rapidness of the arbitration procedures in cases alleging anti-union discrimination and interference, including the average time period for the disposal of such cases.

Article 4. Recognition for purposes of collective bargaining. The Committee notes that section 64(1) of the Labour Act states that “a registered trade union that represents the majority of the employees in an appropriate bargaining unit is entitled to recognition as the exclusive bargaining agent of the employees in that bargaining unit for the purpose of negotiating a collective agreement on any matter of mutual interest”. Furthermore, section 64(2) prohibits an employer or employers’ organization from recognising a trade union as an exclusive bargaining agent unless the requirements of section 64(1) have been fulfilled. In these circumstances, the Committee recalls that problems may arise when the law stipulates that a trade union must receive the support of 50 per cent of the members of a bargaining unit to be recognized as a bargaining agent: a majority union which fails to secure this absolute majority is thus denied the possibility of bargaining. The Committee also recalls that in these conditions, if no union covers more than 50 per cent of the workers, collective bargaining rights should be granted to all the unions in this unit, at least on behalf of their own members (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 241). The Committee therefore requests the Government to indicate whether, if no union covers more than 50 per cent of the workers, the minority unions in the bargaining unit enjoy collective bargaining rights, at least on behalf of their members.

Finally, the Committee requests the Government to indicate whether trade union federations and confederations enjoy the right to bargain collectively and, if so, to specify the legal basis for said right.

Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

The Committee notes that the Government’s report has not been received. It further notes the comments submitted by the Public Service Union of Namibia (PSUN) in a communication of 26 October 2007, and by the International Trade Union Confederation (ITUC) in a communication of 29 August 2008, concerning the application of the Convention and, in particular, the exclusion of prison service staff from the provisions of the new Labour Act of 2007, and hence from the guarantees afforded by the Convention.

Article 6 of the Convention. Rights of prison staff. The Committee notes the adoption of the new Labour Act of 2007 which has not yet entered into force. The Committee notes that section 2(2)(d) of the Labour Act excludes members of the Namibian prison service from the Labour Act’s provisions, unless the Prisons Service Act provides otherwise. The Committee further notes, in this regard, that the Prisons Service Act does not provide for the extension of the new Labour Act’s guarantees to the Namibian prison service; nor does it contain any provisions establishing freedom of association rights for the latter.

In these circumstances, the Committee recalls that all public service workers, with the sole possible exception of the armed forces, the police, and public servants directly engaged in the administration of the State, should enjoy the rights enshrined in the Convention, including the right to collective bargaining. The Committee expresses the hope that the necessary legislative amendments to guarantee, to the prisons service, the rights provided under the Convention will be adopted in the near future and requests the Government to indicate, in its next report, any developments in this regard.

A request concerning other points is being addressed directly to the Government.

Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee notes that the Government’s report has not been received. It also notes the comments submitted by the International Confederation of Free Trade Unions (ICFTU) on 31 August 2005 and 10 August 2006 and the Government’s reply thereon.

Article 2 of the Convention. Protection from acts of interference. In previous comments, the Committee had referred to the absence of provisions in the Labour Act, 1992, protecting employers’ and workers’ organizations from acts of interference in each others’ affairs. In this regard the Committee notes that section 49(f) of the 2004 Labour Act makes it an unfair labour practice for employers’ organizations to “seek to control any trade union or federation of trade unions”. It notes further that unions may, under section 50 of the Act, refer complaints of interference to the Labour Commissioner for arbitration, or petition the competent court for relief. Taking into account the fact that the new draft Labour Code has not yet been adopted, the Committee recalls that the law should make express provision for rapid appeal procedures, coupled with effective and dissuasive sanctions against acts of interference (see General Survey of 1994 on freedom of association and collective bargaining, paragraphs 230-232) and requests the Government to take the necessary measures so that the legislation include sufficiently dissuasive sanctions against acts of interference. The Committee also requests the Government to confirm that the competent courts may, within its power to order appropriate forms of relief, also issue cease-and-desist orders regarding acts of interference, and to transmit any copies of judicial decisions or summaries respecting acts of interference in its next report.

Article 4 of the Convention. Recognition for the purpose of collective bargaining.  The Committee requests the Government to confirm that when no union or group of unions covers more than 50 per cent of the workers, collective bargaining rights are granted to the unions in the unit, at least on behalf of their members.

Scope of the Convention. The Committee notes that section 2(d) of the Labour Act exempts from the scope of its provision employees covered by the Prisons Service Act (No. 17 of 1988). In this respect the Committee requests the Government to indicate whether the prison staff covered by the Prisons Service Act possess the right to bargain collectively over the terms and conditions of their employment.

Finally, the Committee requests the Government to indicate the status of the draft Labour Code.

Direct Request (CEACR) - adopted 2005, published 95th ILC session (2006)

The Committee notes the comments on the application of the Convention submitted by the International Confederation of Free Trade Unions (ICFTU) in a communication and requests the Government to communicate its observations on these comments in its next report.

The Committee will also examine the questions raised in its 2004 direct request (see direct request 2004, 75th Meeting) in the framework of the regular reporting cycle in 2006.

Direct Request (CEACR) - adopted 2004, published 93rd ILC session (2005)

The Committee notes the information contained in the Government’s report.

In its previous direct requests, the Committee had noted the absence of provisions under the Labour Act, 1992, protecting workers’ and employers’ organizations directly against acts of interference by each other in their establishment, functioning or administration, and requested the Government to adopt specific measures in this regard. The Committee had also requested the Government to review and amend the Labour Act so that if no union or group of unions covered more than 50 per cent of the workers, collective bargaining rights were granted to the existing unions in this unit, at least on behalf of their own members.

In its previous report, the Government had indicated that the Committee’s concerns would be addressed in the near future.

The Committee notes from the Government’s report that the Labour Act, No. 1 of 2004 has been passed by Parliament and will come into effect in 2005. The Committee requests the Government to send a copy of this text.

Direct Request (CEACR) - adopted 2001, published 90th ILC session (2002)

The Committee notes the information contained in the Government’s report.

Article 1 of the Convention. In its previous comments, the Committee had referred to the need for workers in export processing zones to be fully protected from dismissal and other prejudice in employment for engaging in legitimate trade union activities. The Committee notes the Government’s statement that section 8 of the Export Processing Zones Amendment Act, 1996, which prohibited industrial actions in export processing zones, was not re-enacted by Parliament and subsequently this provision lapsed. The Committee observes that industrial actions are therefore no longer prohibited in export processing zones and that workers in these zones are consequently entitled to the protection against dismissal and discipline provided under the Labour Act, 1992. The Committee takes due note of this information.

Articles 2(2) and 3. In its previous direct requests, the Committee had noted the absence of provisions under the Labour Act, 1992, protecting workers’ and employers’ organizations directly against acts of interference by each other in their establishment, functioning or administration, and requested the Government to adopt specific measures in this regard. The Committee had further noted the Government’s statement that the draft Labour Amendment Bill had been submitted to the tripartite Labour Advisory Council which was formulating recommendations to be submitted to the Minister of Labour, and that if the draft Bill was approved, the Committee’s concern regarding interference would be addressed. In its report, the Government indicates that the draft Labour Amendment Bill has now been approved by the cabinet committee on legislation and will be tabled before full cabinet for approval. The Committee requests the Government to keep it informed of progress made in adopting the draft Labour Amendment Bill.

Article 4. In its previous comments, the Committee had requested the Government to review and amend the Labour Act so that if no union or group of unions covered more than 50 per cent of the workers, collective bargaining rights were granted to the unions in this unit, at least on behalf of their own members. In its report, the Government indicates that the Committee’s concerns in respect of this issue would be addressed by the new Labour Amendment Bill. The Committee requests the Government to transmit a copy of the draft Labour Amendment Bill as soon as it has been adopted.

Direct Request (CEACR) - adopted 1999, published 88th ILC session (2000)

The Committee notes the information contained in the Government's reports.

Article 1 of the Convention. The Committee notes that it has previously raised concerns with respect to the need for workers in export processing zones to be fully protected from dismissal and other prejudice in employment for engaging in legitimate trade union activities. The Committee notes that the Government has indicated that the tripartite Labour Advisory Council is studying this issue and assessing the economic and labour impact of the application of the Labour Act, 1992, and the Export Processing Zones Amendment Act, 1996, in the zones. Once this study is completed, the Labour Advisory Council is expected to put forward recommendations to either amend the legislation or await the statutory lapse of the prohibition of industrial action under the Export Processing Zones Amendment Act, 1996, in June 2001. The Committee urges the Government to ensure that the legislation is amended as soon as possible, rather than awaiting the statutory lapse in June 2001, to bring it into conformity with the requirements of the Convention. The Committee requests the Government to keep it informed of any progress in this regard.

Articles 2(2) and 3. The Committee has been commenting on the absence of protection under the Labour Act of workers' and employers' organizations directly against acts of interference by each other in their establishment, functioning or administration. The Committee notes that the draft Labour Amendment Bill has been submitted to the Labour Advisory Council, which is in the process of formulating recommendations to be submitted to the Minister of Labour. The Committee notes the Government's indication that if the draft Labour Amendment Bill is approved, the Committee's concern regarding interference would be addressed. The Committee requests the Government to keep it informed of the Labour Advisory Council's recommendations and the progress of the Labour Amendment Bill.

Article 4. In its previous direct request, the Committee had requested the Government to review and amend the Labour Act so that if no union or group of unions covered more than 50 per cent of the workers, collective bargaining rights were granted to the unions in the unit, at least on behalf of their own members. In its most recent report, the Government asserts that this would undermine the importance of recognizing the most representative union and encourage fragmentation. The Government points to section 58(1) of the Labour Act providing for a trade union or a group of trade unions that represents the majority of employees in a bargaining unit to be recognized as the exclusive bargaining agent. An application may be brought before the Labour Court pursuant to section 58(6) for the withdrawal of such representation, and the Labour Court may make such order as it deems necessary in relation to the continuation or cessation of any collective agreement. The Committee notes that the Government indicates with respect to section 58(6) that if there is an order for the cessation of the collective agreement, the employees concerned will no longer be covered by the agreement.

The Committee draws attention to the distinction between exclusive bargaining rights, which clearly should be limited to the most representative union or unions having a majority, and the situation where no union or group of unions covers more than 50 per cent of the workers. With regard to the latter situation, while the Committee understands the Government's desire to avoid fragmentation in bargaining, it is of the view that collective bargaining still has a legitimate and useful role. The importance of the principle of the right of workers' organizations to negotiate conditions of employment through collective bargaining even when no majority exists is underscored in the present instance, in the view of the Committee, by the fact that the Labour Court can, pursuant to section 58(6), order the cessation of a pre-existing collective agreement where exclusive bargaining status is withdrawn. The Committee again requests the Government to review and amend the Labour Act so that if no union or group of unions covers more than 50 per cent of workers, collective bargaining rights are granted to the unions in the unit, at least on behalf of their own members.

Direct Request (CEACR) - adopted 1997, published 86th ILC session (1998)

The Committee notes the Government's report, including the relevant provisions of the Export Processing Zones Amendment Act, 1996 (Act No. 6, 1996) attached thereto.

Article 1 of the Convention. The Committee notes that, pursuant to the Export Processing Zones Amendment Act, workers in export processing zones are denied the right to strike and consequently denied some of the protection against discipline and dismissal provided under the Labour Act, 1992. As a legitimate trade union activity in export processing zones, workers engaging in strikes in those zones should be fully protected from dismissal or other prejudice in employment for engaging in such action. The Committee urges the Government to review and amend the legislation to bring it into conformity with the requirements of the Convention.

Articles 2(2) and 3 of the Convention. In its previous direct request, the Committee noted the absence of protection under the Labour Act, 1992, of workers' and employers' organizations directly against acts of interference by each other in their establishment, functioning or administration, and requested the Government to adopt specific measures in this regard. The Committee notes that the Government has indicated that at present the tripartite Labour Advisory Council is considering proposed amendments to the Labour Act, 1992, taking into account the Committee's comments. The Committee requests the Government to keep it informed of the status of the Labour Advisory Council's recommendations, and of any amendments made to the Labour Act in consequence.

Article 4 of the Convention. The Committee notes the Government's response to its previous direct request regarding the rights of minority trade unions, in particular whether, in practice, if no union represents the majority of employees in a bargaining unit, collective bargaining rights are denied to all unions in such a unit. The Government in its report points to section 58(1) of the Labour Act, 1992, allowing a group of registered trade unions jointly to approach an employer for the purpose of collective bargaining as a single exclusive bargaining agent. While noting the ability of trade unions to join together for the purposes of exclusive bargaining, the Committee considers that if no union or group of unions covers more than 50 per cent of the workers, collective bargaining rights should be granted to the unions in the unit, at least on behalf of their own members. The Committee requests the Government to review and amend the Labour Act in order to bring it into conformity with the requirements of the Convention.

The Committee recalls its previous comment with reference to section 58(6)(a)(i)(bb), which provides that if, upon an application by an employer, the Labour Court is satisfied that the majority of the employees within a bargaining unit is no longer represented by the trade union, the Labour Court may make any such order as it deems necessary in relation to the continuance or cessation of any collective agreement. The Committee again requests the Government to indicate whether in practice employees concerned would no longer be covered by any collective agreement since the Act establishes a system of recognition of an exclusive bargaining agent.

Direct Request (CEACR) - adopted 1996, published 85th ILC session (1997)

The Committee notes with interest the detailed information provided by the Government in its first report, as well as the entry into force on 8 April 1992 of the Labour Act (No. 6 of 1992). The Committee would draw the Government's attention to the following points:

1. Articles 2(2) and 3 of the Convention. The Committee notes the Government's statement in its report that section 63 of the Labour Act empowers the Labour Commissioner to disapprove applications for registration of any organization if its constitution is aimed at obstructing or interfering with the rights or activities of other organizations. The Committee nevertheless notes the absence of provisions in the Act which could protect workers' and employers' organizations directly against acts of interference by each other in their establishment, functioning or administration. In this respect, the Committee would recall that governments which have ratified the Convention are under the obligation to take specific action, in particular through legislative means, to ensure respect for the guarantees laid down in Article 2 (1994 General Survey on freedom of association and collective bargaining, para. 230). Since such protection is of a very general nature, the Committee would request the Government to adopt specific measures in this respect which could include making provision in its legislation for rapid appeal procedures, coupled with effective and dissuasive sanctions against acts of interference by employers or employers' organizations in the establishment, functioning or administration of trade unions. The Committee requests the Government to keep it informed of any progress made in this regard.

2. Article 4. The Committee observes that the provisions of the Labour Act, 1992, generally encourage and promote collective bargaining. In this respect, it notes the Government's statement to the effect that it has registered, through the office of the Labour Commissioner, 29 collective agreements between various trade unions and private companies. The Committee would nevertheless request clarification from the Government on the following points:

(a) The Committee notes that section 57(1)(b) of the Act stipulates that if a registered trade union is an exclusive bargaining agent, it shall have the right to negotiate with the employer concerned the terms of, and enter into, a collective agreement. The Committee notes, moreover, that subsection (1) of section 58 defines an exclusive bargaining agent to be a registered trade union which represents the majority of employees within a bargaining unit. The Committee requests the Government to indicate whether, in practice, if no union represents the majority of employees in a bargaining unit, collective bargaining rights are denied to all unions in such a unit. If this is so, the Committee recalls that it considers that under such a system, if no union covers more than 50 per cent of the workers, collective bargaining rights should be granted to all the unions in this unit, at least on behalf of their own members (see General Survey, op. cit., para. 241).

(b) The Committee notes that subsection (6)(a)(i)(bb) of section 58 provides that if, upon an application made to the Labour Court by an employer, the court is satisfied that the majority of the employees within a bargaining unit is no longer represented by the trade union in question, the court may make such order as it may deem necessary in relation to the continuance or cessation of any collective agreement. The Committee requests the Government to indicate whether in practice this means that the employees concerned would no longer be covered by any collective agreement since the Act establishes a system of recognition of an exclusive bargaining agent.