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

Article 2 of the Convention. Right of workers, without distinction whatsoever, to establish and join organizations of their own choosing. Public employees. The Committee had previously requested the Government to take measures to amend the National Conditions of Service (NCS), which provides, in its section L.7, that all employees are free to join a “recognized” staff association or union, given that there is no legislative provision relating to union recognition. The Committee notes the Government’s indication that the Ministry of Employment and Human Resource (MEHR) has reached an agreement with the Public Service Office (PSO), the regulator of the NCS, to remove the term “recognized” from section L.7 in the course of the amendment of the NCS. The Committee requests the Government to provide information on all progress made in this regard.
Article 3. Right of workers’ and employers’ organizations to organize their activities. The Committee had previously observed that the following provisions of the Employment and Industrial Relations Code (EIRC) could unduly restrict the right to take industrial action: approval of strike action by a majority of the employees (section 139); declaration of a strike as illegal by the administrative authority (sections 136–139); and penal sanctions in the form of fines for participation in unlawful strikes (sections 136–139 in conjunction with section 152) and had requested the Government to consider reviewing these sections. The Committee notes with satisfaction that the EIRC has been amended so as to ensure that: (i) in a strike ballot, account is only taken of the votes cast (section 139(1)(b)); and (ii) the declaration of a strike as unlawful emanates from an independent body (section 138(3)(b)). The Committee further notes that penal sanctions in the form of fines imposed in unlawful, yet peaceful, strikes were repealed and replaced with a “proportionate disciplinary sanction” (sections 136(5), 137(6), 138(5), 139(5)). The Committee requests the Government to clarify the meaning of “proportionate disciplinary sanction” and to provide information on any such sanctions imposed in practice.
Dispute resolution procedure. In its previous comments, the Committee had requested the Government to amend section 128(2)(a) and (c) of the EIRC which allowed the Registrar to refer a dispute for arbitration if: (a) one or more of the parties request to refer the dispute for arbitration; or (c) if a dispute has been protracted or is tending to endanger or has endangered the personal health, safety or welfare of the community or part of it. The Committee notes with satisfaction that this provision has now been amended to provide that the Registrar may refer the dispute for arbitration only upon the request of “both parties”.

Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

The Committee notes that the Government’s report has not been received. It hopes that the next report will contain full information on the matters raised in its previous comments.
Repetition
Article 2 of the Convention. Right of public employees, without distinction whatsoever, to establish and join organizations of their own choosing. In its previous comments, the Committee had requested the Government to take measures to amend the National Conditions of Service (NCS), which provides that all employees are free to join a “recognized” staff association or union, given that there is no legislative provision relating to union recognition. The Committee notes the Government’s indication that the Kiribati Public Service Office is currently working on amending the NCS and that consideration will be given to reviewing section L.7 so as to ensure its consistency with the Employment and Industrial Relations Code (EIRC). The Committee trusts that the reference to “recognized” staff associations or unions will soon be removed from section L.7 of the NCS for the purposes of legal certainty and requests the Government to provide information on the progress made in this respect.
Article 3. Right of workers’ and employers’ organizations to organize their activities. The Committee had previously observed that the following provisions of the EIRC could unduly restrict the right to take industrial action: approval of strike action by a majority of the employees (section 139); declaration of a strike as illegal by the administrative authority (sections 136–139); and penal sanctions in the form of fines for participation in unlawful strikes (sections 136–139 in conjunction with section 152). The Committee requested the Government to consider reviewing the above provisions with a view to ensuring that, in a strike ballot, account is only taken of the votes cast, that the declaration of a strike as unlawful emanates from an independent body and that no penal sanctions in the form of fines are imposed in unlawful yet peaceful strikes. The Committee notes the Government’s indication that while the EIRC of 2015 was amended in 2017, further consultations with the competent authorities and social partners were required in order to ensure that declaration of a strike as unlawful emanates from an independent body and that no penal sanctions in the form of fines are imposed in unlawful yet peaceful strikes. The Committee requests the Government to provide information on the developments in this regard.
While noting that section 139 of the EIRC was amended in 2017, the Committee observes that the required majority remains unchanged. The Committee therefore once again requests the Government to amend section 139(1)(b) of the EIRC so as to ensure that in a strike ballot, account is taken only of the votes cast and asks the Government to provide information on measures taken to that end.
Dispute resolution procedure. In its previous comments, the Committee had noted that pursuant to section 128(2)(a) and (c) of the EIRC, the Registrar may refer a dispute for arbitration if: (a) one or more of the parties request to refer the dispute for arbitration; or (c) if a dispute has been protracted or is tending to endanger or has endangered the personal health, safety or welfare of the community or part of it. The Committee recalled that recourse to compulsory arbitration to bring an end to a collective labour dispute and a strike is only acceptable if it is at the request of both parties involved in the dispute or if the strike in question may be restricted, or even prohibited, that is: (i) in the case of disputes concerning public servants exercising authority in the name of the State; (ii) in conflicts in 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 or part of the population); or (iii) in situations of acute national or local crisis, and that, accordingly, the existence of protracted disputes and the failure of conciliation are not per se elements which justify the imposition of compulsory arbitration. In this regard, the Committee considered that subsections (a) (the element of compulsion being that one party alone is able to pursue the dispute by arbitration) and (c) (referring to protracted industrial actions) of section 128(2) were likely to make it possible to prohibit virtually all strikes or to end them quickly. The Committee notes the Government’s indications acknowledging the inconsistencies of section 128(2) with the Convention and informing that the issue has been discussed by the Decent Work Advisory Board and will require further consultations with the Attorney General’s Office and the Board to consider future amendments. The Committee further notes that the Government seeks its views on the role of the Registrar in the referral of disputes to arbitration under section 128(2) – determining whether the circumstances in subsections (a) to (c) are met. The Committee considers that the determination of the Registrar should be limited to verifying the existence of the conditions for resorting to compulsory arbitration noted above. The Committee hopes that section 128(2)(a) and (c) of the EIRC will be reviewed in consultation with the social partners with a view to ensuring that compulsory arbitration is possible only in cases that are in line with the Convention. The Committee requests the Government to provide information on developments in this regard.

Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

Article 2 of the Convention. Right of public employees, without distinction whatsoever, to establish and join organizations of their own choosing. In its previous comments, the Committee had requested the Government to take measures to amend the National Conditions of Service (NCS), which provides that all employees are free to join a “recognized” staff association or union, given that there is no legislative provision relating to union recognition. The Committee notes the Government’s indication that the Kiribati Public Service Office is currently working on amending the NCS and that consideration will be given to reviewing section L.7 so as to ensure its consistency with the Employment and Industrial Relations Code (EIRC). The Committee trusts that the reference to “recognized” staff associations or unions will soon be removed from section L.7 of the NCS for the purposes of legal certainty and requests the Government to provide information on the progress made in this respect.
Article 3. Right of workers’ and employers’ organizations to organize their activities. The Committee had previously observed that the following provisions of the EIRC could unduly restrict the right to take industrial action: approval of strike action by a majority of the employees (section 139); declaration of a strike as illegal by the administrative authority (sections 136–139); and penal sanctions in the form of fines for participation in unlawful strikes (sections 136–139 in conjunction with section 152). The Committee requested the Government to consider reviewing the above provisions with a view to ensuring that, in a strike ballot, account is only taken of the votes cast, that the declaration of a strike as unlawful emanates from an independent body and that no penal sanctions in the form of fines are imposed in unlawful yet peaceful strikes. The Committee notes the Government’s indication that while the EIRC of 2015 was amended in 2017, further consultations with the competent authorities and social partners were required in order to ensure that declaration of a strike as unlawful emanates from an independent body and that no penal sanctions in the form of fines are imposed in unlawful yet peaceful strikes. The Committee requests the Government to provide information on the developments in this regard.
While noting that section 139 of the EIRC was amended in 2017, the Committee observes that the required majority remains unchanged. The Committee therefore once again requests the Government to amend section 139(1)(b) of the EIRC so as to ensure that in a strike ballot, account is taken only of the votes cast and asks the Government to provide information on measures taken to that end.
Dispute resolution procedure. In its previous comments, the Committee had noted that pursuant to section 128(2)(a) and (c) of the EIRC, the Registrar may refer a dispute for arbitration if: (a) one or more of the parties request to refer the dispute for arbitration; or (c) if a dispute has been protracted or is tending to endanger or has endangered the personal health, safety or welfare of the community or part of it. The Committee recalled that recourse to compulsory arbitration to bring an end to a collective labour dispute and a strike is only acceptable if it is at the request of both parties involved in the dispute or if the strike in question may be restricted, or even prohibited, that is: (i) in the case of disputes concerning public servants exercising authority in the name of the State; (ii) in conflicts in 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 or part of the population); or (iii) in situations of acute national or local crisis, and that, accordingly, the existence of protracted disputes and the failure of conciliation are not per se elements which justify the imposition of compulsory arbitration. In this regard, the Committee considered that subsections (a) (the element of compulsion being that one party alone is able to pursue the dispute by arbitration) and (c) (referring to protracted industrial actions) of section 128(2) were likely to make it possible to prohibit virtually all strikes or to end them quickly. The Committee notes the Government’s indications acknowledging the inconsistencies of section 128(2) with the Convention and informing that the issue has been discussed by the Decent Work Advisory Board and will require further consultations with the Attorney General’s Office and the Board to consider future amendments. The Committee further notes that the Government seeks its views on the role of the Registrar in the referral of disputes to arbitration under section 128(2) – determining whether the circumstances in subsections (a) to (c) are met. The Committee considers that the determination of the Registrar should be limited to verifying the existence of the conditions for resorting to compulsory arbitration noted above. The Committee hopes that section 128(2)(a) and (c) of the EIRC will be reviewed in consultation with the social partners with a view to ensuring that compulsory arbitration is possible only in cases that are in line with the Convention. The Committee requests the Government to provide information on developments in this regard.

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

The Committee notes with regret that the Government’s report has not been received. It hopes that the next report will contain full information on the matters raised in its previous comments initially made in 2016.
Repetition
Article 2 of the Convention. Right of public employees to establish and join organizations of their own choosing. The Committee had previously requested the Government to take measures to amend the National Conditions of Service (NCS) providing that all employees are free to join a “recognized” staff association or union, given that there is no legislative provision relating to union recognition. The Committee notes the Government’s indication that it was agreed to accommodate these concerns in the current process of NCS review, and that a change was proposed to remove the word “recognized” for the purposes of consistency with the law. The Committee trusts that the reference to “recognized” staff associations or unions will soon be removed from section L.7 of the NCS for the purposes of legal certainty.
Article 3. Right of organizations to organize their activities. The Committee had previously commented on the need to remove penal sanctions for participation in peaceful strikes. The Committee welcomes that the Employment and Industrial Relations Code (EIRC) does not contain penalties of imprisonment in cases of participation in strikes in essential services or in unlawful strikes; but observes that the following provisions of the EIRC could unduly restrict the right to take industrial action: approval of strike action by a majority of the employees (section 139); declaration of a strike as illegal by the administrative authority (sections 136–139); and penal sanctions in the form of fines for participation in unlawful strikes (sections 136–139 in conjunction with section 152). The Committee notes the Government’s indication that: (i) it was agreed to remove present penalties but to retain fine penalties for illegal strikes; (ii) the penalties are maximum sanctions and the court has the discretion to decide on the level of sanction applicable depending on the seriousness of the case; and (iii) the definition of proportionate penalties applicable to cases of unlawful strike should be clarified. The Committee recalls that: (i) if the strike is determined by a competent judicial authority to be unlawful on the basis of provisions that are in conformity with freedom of association principles, proportionate disciplinary sanctions may be imposed against strikers (such as reprimands, withdrawal of bonuses, etc.); (ii) the question of determining whether or not a strike is lawful is therefore essential, and responsibility for declaring a strike illegal should not lie with the government authorities, but with an independent body which has the confidence of the parties involved; (iii) no penal sanctions should be imposed against a worker for having carried out a peaceful strike and thus for merely exercising an essential right, and therefore measures of imprisonment or fines should not be imposed on any account; and (iv) penal sanctions in the form of imprisonment or fines could be envisaged only where, during a strike, violence against persons or property, or other serious infringements of penal law have been committed and can be imposed exclusively pursuant to legislation punishing such acts, such as the Penal Code (for example, in the case of failure to assist a person in danger, deliberate injury or damage deliberately caused to property). The Committee requests the Government to consider reviewing the above provisions of the EIRC with a view to ensuring that, in a strike ballot, account is only taken of the votes cast, that the declaration of a strike as unlawful emanates from an independent body, and that no penal sanctions in the form of fines are imposed in unlawful but peaceful strikes.
Dispute resolution procedure. The Committee had previously requested the Government to take measures to amend the legislation so as to limit the possibility of imposing compulsory arbitration to cases in line with the Convention. The Committee notes that, if conciliation has failed, the Registrar may, under section 128(2) of the EIRC, refer a dispute for arbitration: (i) if one or more of the parties request to refer the dispute for arbitration; (ii) if the dispute is in the public services involving public servants exercising authority in the name of the State; or (iii) if a dispute has been protracted or is tending to endanger or has endangered the personal health, safety or welfare of the community or part of it. The Committee notes the Government’s indication that: (i) arbitration in the EIRC is not a final decision in a particular dispute, as arbitration awards are appealable to the High Court; (ii) the arbitration process is the main entry point for formal legal redress for the parties to a dispute where conciliation fails; and (iii) the element of compulsion where a matter can be referred for arbitration without reference to the parties is only in section 128(2)(ii) and (iii) above. In order not to excessively restrict the right of organizations to formulate their programmes and organize their activities, the Committee recalls that recourse to compulsory arbitration to bring an end to a collective labour dispute and a strike is only acceptable when the strike in question may be restricted, or even prohibited, that is: (i) in the case of disputes concerning public servants exercising authority in the name of the State; (ii) in conflicts in 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 or part of the population); or (iii) in situations of acute national or local crisis; and that, accordingly, the existence of protracted disputes and the failure of conciliation are not per se elements which justify the imposition of compulsory arbitration. In this regard, the Committee considers that, while section 128(2)(ii) is compatible with the Convention, the following provisions are likely to make it possible to prohibit virtually all strikes or to end them quickly: section 128(2)(i) (the element of compulsion being that one party alone is able to pursue the dispute by arbitration) and section 128(2)(iii) (first part) referring to protracted industrial action. The Committee requests the Government to consider reviewing section 128 of the EIRC, with a view to ensuring that compulsory arbitration is possible only in cases that are in line with the Convention.

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

The Committee notes that the Government’s report has not been received. It hopes that the next report will contain full information on the matters raised in its previous comments initially made in 2016.
Repetition
Article 2 of the Convention. Right of public employees to establish and join organizations of their own choosing. The Committee had previously requested the Government to take measures to amend the National Conditions of Service (NCS) providing that all employees are free to join a “recognized” staff association or union, given that there is no legislative provision relating to union recognition. The Committee notes the Government’s indication that it was agreed to accommodate these concerns in the current process of NCS review, and that a change was proposed to remove the word “recognized” for the purposes of consistency with the law. The Committee trusts that the reference to “recognized” staff associations or unions will soon be removed from section L.7 of the NCS for the purposes of legal certainty.
Article 3. Right of organizations to organize their activities. The Committee had previously commented on the need to remove penal sanctions for participation in peaceful strikes. The Committee welcomes that the Employment and Industrial Relations Code (EIRC) does not contain penalties of imprisonment in cases of participation in strikes in essential services or in unlawful strikes; but observes that the following provisions of the EIRC could unduly restrict the right to take industrial action: approval of strike action by a majority of the employees (section 139); declaration of a strike as illegal by the administrative authority (sections 136–139); and penal sanctions in the form of fines for participation in unlawful strikes (sections 136–139 in conjunction with section 152). The Committee notes the Government’s indication that: (i) it was agreed to remove present penalties but to retain fine penalties for illegal strikes; (ii) the penalties are maximum sanctions and the court has the discretion to decide on the level of sanction applicable depending on the seriousness of the case; and (iii) the definition of proportionate penalties applicable to cases of unlawful strike should be clarified. The Committee recalls that: (i) if the strike is determined by a competent judicial authority to be unlawful on the basis of provisions that are in conformity with freedom of association principles, proportionate disciplinary sanctions may be imposed against strikers (such as reprimands, withdrawal of bonuses, etc.); (ii) the question of determining whether or not a strike is lawful is therefore essential, and responsibility for declaring a strike illegal should not lie with the government authorities, but with an independent body which has the confidence of the parties involved; (iii) no penal sanctions should be imposed against a worker for having carried out a peaceful strike and thus for merely exercising an essential right, and therefore measures of imprisonment or fines should not be imposed on any account; and (iv) penal sanctions in the form of imprisonment or fines could be envisaged only where, during a strike, violence against persons or property, or other serious infringements of penal law have been committed and can be imposed exclusively pursuant to legislation punishing such acts, such as the Penal Code (for example, in the case of failure to assist a person in danger, deliberate injury or damage deliberately caused to property). The Committee requests the Government to consider reviewing the above provisions of the EIRC with a view to ensuring that, in a strike ballot, account is only taken of the votes cast, that the declaration of a strike as unlawful emanates from an independent body, and that no penal sanctions in the form of fines are imposed in unlawful but peaceful strikes.
Dispute resolution procedure. The Committee had previously requested the Government to take measures to amend the legislation so as to limit the possibility of imposing compulsory arbitration to cases in line with the Convention. The Committee notes that, if conciliation has failed, the Registrar may, under section 128(2) of the EIRC, refer a dispute for arbitration: (i) if one or more of the parties request to refer the dispute for arbitration; (ii) if the dispute is in the public services involving public servants exercising authority in the name of the State; or (iii) if a dispute has been protracted or is tending to endanger or has endangered the personal health, safety or welfare of the community or part of it. The Committee notes the Government’s indication that: (i) arbitration in the EIRC is not a final decision in a particular dispute, as arbitration awards are appealable to the High Court; (ii) the arbitration process is the main entry point for formal legal redress for the parties to a dispute where conciliation fails; and (iii) the element of compulsion where a matter can be referred for arbitration without reference to the parties is only in section 128(2)(ii) and (iii) above. In order not to excessively restrict the right of organizations to formulate their programmes and organize their activities, the Committee recalls that recourse to compulsory arbitration to bring an end to a collective labour dispute and a strike is only acceptable when the strike in question may be restricted, or even prohibited, that is: (i) in the case of disputes concerning public servants exercising authority in the name of the State; (ii) in conflicts in 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 or part of the population); or (iii) in situations of acute national or local crisis; and that, accordingly, the existence of protracted disputes and the failure of conciliation are not per se elements which justify the imposition of compulsory arbitration. In this regard, the Committee considers that, while section 128(2)(ii) is compatible with the Convention, the following provisions are likely to make it possible to prohibit virtually all strikes or to end them quickly: section 128(2)(i) (the element of compulsion being that one party alone is able to pursue the dispute by arbitration) and section 128(2)(iii) (first part) referring to protracted industrial action. The Committee requests the Government to consider reviewing section 128 of the EIRC, with a view to ensuring that compulsory arbitration is possible only in cases that are in line with the Convention.

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

Article 2 of the Convention. Right of public employees to establish and join organizations of their own choosing. The Committee had previously requested the Government to take measures to amend the National Conditions of Service (NCS) providing that all employees are free to join a “recognized” staff association or union, given that there is no legislative provision relating to union recognition. The Committee notes the Government’s indication that it was agreed to accommodate these concerns in the current process of NCS review, and that a change was proposed to remove the word “recognized” for the purposes of consistency with the law. The Committee trusts that the reference to “recognized” staff associations or unions will soon be removed from section L.7 of the NCS for the purposes of legal certainty.
Article 3. Right of organizations to organize their activities. The Committee had previously commented on the need to remove penal sanctions for participation in peaceful strikes. The Committee welcomes that the Employment and Industrial Relations Code (EIRC) does not contain penalties of imprisonment in cases of participation in strikes in essential services or in unlawful strikes; but observes that the following provisions of the EIRC could unduly restrict the right to take industrial action: approval of strike action by a majority of the employees (section 139); declaration of a strike as illegal by the administrative authority (sections 136–139); and penal sanctions in the form of fines for participation in unlawful strikes (sections 136–139 in conjunction with section 152). The Committee notes the Government’s indication that: (i) it was agreed to remove present penalties but to retain fine penalties for illegal strikes; (ii) the penalties are maximum sanctions and the court has the discretion to decide on the level of sanction applicable depending on the seriousness of the case; and (iii) the definition of proportionate penalties applicable to cases of unlawful strike should be clarified. The Committee recalls that: (i) if the strike is determined by a competent judicial authority to be unlawful on the basis of provisions that are in conformity with freedom of association principles, proportionate disciplinary sanctions may be imposed against strikers (such as reprimands, withdrawal of bonuses, etc.); (ii) the question of determining whether or not a strike is lawful is therefore essential, and responsibility for declaring a strike illegal should not lie with the government authorities, but with an independent body which has the confidence of the parties involved; (iii) no penal sanctions should be imposed against a worker for having carried out a peaceful strike and thus for merely exercising an essential right, and therefore measures of imprisonment or fines should not be imposed on any account; and (iv) penal sanctions in the form of imprisonment or fines could be envisaged only where, during a strike, violence against persons or property, or other serious infringements of penal law have been committed and can be imposed exclusively pursuant to legislation punishing such acts, such as the Penal Code (for example, in the case of failure to assist a person in danger, deliberate injury or damage deliberately caused to property). The Committee requests the Government to consider reviewing the above provisions of the EIRC with a view to ensuring that, in a strike ballot, account is only taken of the votes cast, that the declaration of a strike as unlawful emanates from an independent body, and that no penal sanctions in the form of fines are imposed in unlawful but peaceful strikes.
Dispute resolution procedure. The Committee had previously requested the Government to take measures to amend the legislation so as to limit the possibility of imposing compulsory arbitration to cases in line with the Convention. The Committee notes that, if conciliation has failed, the Registrar may, under section 128(2) of the EIRC, refer a dispute for arbitration: (i) if one or more of the parties request to refer the dispute for arbitration; (ii) if the dispute is in the public services involving public servants exercising authority in the name of the State; or (iii) if a dispute has been protracted or is tending to endanger or has endangered the personal health, safety or welfare of the community or part of it. The Committee notes the Government’s indication that: (i) arbitration in the EIRC is not a final decision in a particular dispute, as arbitration awards are appealable to the High Court; (ii) the arbitration process is the main entry point for formal legal redress for the parties to a dispute where conciliation fails; and (iii) the element of compulsion where a matter can be referred for arbitration without reference to the parties is only in section 128(2)(ii) and (iii) above. In order not to excessively restrict the right of organizations to formulate their programmes and organize their activities, the Committee recalls that recourse to compulsory arbitration to bring an end to a collective labour dispute and a strike is only acceptable when the strike in question may be restricted, or even prohibited, that is: (i) in the case of disputes concerning public servants exercising authority in the name of the State; (ii) in conflicts in 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 or part of the population); or (iii) in situations of acute national or local crisis; and that, accordingly, the existence of protracted disputes and the failure of conciliation are not per se elements which justify the imposition of compulsory arbitration. In this regard, the Committee considers that, while section 128(2)(ii) is compatible with the Convention, the following provisions are likely to make it possible to prohibit virtually all strikes or to end them quickly: section 128(2)(i) (the element of compulsion being that one party alone is able to pursue the dispute by arbitration) and section 128(2)(iii) (first part) referring to protracted industrial action. The Committee requests the Government to consider reviewing section 128 of the EIRC, with a view to ensuring that compulsory arbitration is possible only in cases that are in line with the Convention.

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

The Committee notes the observations of the International Organisation of Employers (IOE) received on 1 September 2015, which are of a general nature.
In its previous comments, the Committee had been commenting upon the need to modify a number of provisions of the Trade Unions and Employer Organisations Act and the Industrial Relations Code. Welcoming that certain matters were addressed in the Draft Employment and Industrial Relations Code 2013, which had been technically reviewed by the Office, and noting that the labour law reforms were being considered by the Decent Work Agenda Steering Committee, the Committee expected that all its comments, would be fully taken into account in the process and requested the Government to provide information on any developments as regards the adoption of the draft legislation.
The Committee notes the adoption of the Employment and Industrial Relations Code (EIRC) in 2015 and notes with satisfaction that, in line with its previous comments: (i) section 24(2)(a) of the EIRC lowers the minimum membership requirement for the registration of an employers’ organization from seven to five members; (ii) section 19(1) of the EIRC guarantees the right of trade unions and employers’ organizations to elect their representatives; and (iii) sections 124, 125, 127 and 128 of the EIRC introduce time frames to encourage an expedient dispute settlement procedure.
The Committee is raising other matters in a request addressed directly to the Government.

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

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 comments.
Repetition
Article 2 of the Convention. Right of public employees to establish and join organizations of their own choosing. The Committee had previously requested the Government to amend the National Conditions of Service (NCS) providing that all employees are free to join a “recognized” staff association or union, given that there is no legislative provision relating to union recognition. The Committee notes the Government’s indication that there were divergent views among the authorities in this respect, on the one hand recognizing the inconsistency with the TEA and on the other hand considering that this is not an issue as the law overrides the NCS. Reiterating the necessity to remove the reference to “recognized” staff associations or unions from section L.7 of the NCS for the purposes of legal certainty, the Committee requests the Government to provide information as to the decision taken in this respect.
Article 3. Right of organizations to organize their activities. The Committee notes that the 2008 Amendment Act to the Industrial Relations Code (IRC), while removing the reference to strikes that might “expose valuable property to the risk of destruction” and the prison sentences for participation in unlawful strikes, maintained the prison sentences for strikes in essential services and increased the fine penalties for participation in strikes in essential services or in unlawful strikes. The Committee also notes the Government’s indication that, under the current labour law reform, imprisonment would not be an available sentencing option for strike action, unless it constitutes a criminal offence. Indeed, the Committee welcomes that the draft 2013 Code does not contain penalties of imprisonment in case of participation in strikes in essential services or in unlawful strikes. It notes, however, that involvement in such strikes still constitutes an offence entailing heavy fines and recalls that it has continually emphasized that: (i) no penal sanctions should be imposed against a worker for having carried out a peaceful strike and thus for merely exercising an essential right; and (ii) such sanctions could be envisaged only where, during a strike, violence against persons or property, or other serious infringements of penal law have been committed, and can be imposed exclusively pursuant to legislation punishing these acts, such as the Penal Code (see General Survey on the fundamental Conventions, 2013, paragraph 158). The Committee requests the Government to indicate in its next report the measures taken in order to review the provisions of the draft 2013 Code so as to ensure respect for the principles cited above.
Dispute resolution procedure. The Committee had previously requested the Government to amend the IRC, so as to limit the possibility of imposing compulsory arbitration to cases in line with freedom of association principles. The Committee notes the Government’s indication that: (i) the Decent Work Agenda Steering Committee considered that the removal of the right to compulsory arbitration in case of unsuccessful conciliation might impede effective dispute resolution, given the lack of collective agreements offering alternate avenues for arbitration and the low levels of organization and capacity of unions; and (ii) in view of a progressive implementation of the Convention, the current labour law reform will improve the effectiveness of the process of collective bargaining to reduce the frequency of disputes and facilitate dispute resolution at the workplace level through model procedures. The Committee notes that under section 141 of the draft 2013 Code, the registrar may refer a dispute for arbitration at the request of only one party, or where a dispute is protracted or is tending to endanger or has endangered the welfare of the community or part of it. In this regard, the Committee once again recalls that compulsory arbitration is acceptable under the Convention only at the request of both parties to the dispute, in essential services in the strict sense of the term, and for public servants exercising authority in the name of the State. The Committee requests the Government to indicate in its next report the measures taken to review section 141 of the draft 2013 Code, with a view to ensuring that compulsory arbitration is possible only in cases that are in line with freedom of association principles.
Furthermore, the Committee had previously requested the Government to indicate the measures taken to ensure that specific time limits are introduced in the IRC so that the mediation and conciliation procedure does not become excessively complex or slow. The Committee notes the Government’s indication that, under the current labour law reform, time limits would be imposed at each stage of the dispute resolution process to enable the effective exercise of the right to industrial action. The Committee welcomes the shortened time frame for the Registrar’s response to an employment dispute report (section 152(2) of the draft 2013 Code). It requests the Government to indicate in its next report the measures taken to review the other provisions of the draft 2013 Code relating to conciliation, mediation and arbitration proceedings, so as to introduce additional time limits as to their initiation and duration.

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

The Committee notes that the Government’s report has not been received. It must therefore repeat its previous comments.
Repetition
The Committee recalls that it has been commenting upon the need to modify a number of provisions of the Trade Unions and Employer Organisations Act (TEA) and the Industrial Relations Code (IRC) concerning the minimum membership requirement, the right of public employees to establish and join organizations of their own choosing, the right of organizations to elect their representatives freely and organize their activities and the dispute resolution procedure, so as to bring them into conformity with the Convention. The Committee notes that the Government has requested the International Labour Office to conduct a technical review of the Draft Employment and Industrial Relations Code 2013 (draft 2013 Code), and that the Office’s comments have been transmitted to the Government. Welcoming that certain matters have been addressed in the draft 2013 Code and noting the Government’s indication in its report that the labour law reforms are currently being considered by the Decent Work Agenda Steering Committee, the Committee expects that all its comments, as elaborated upon in detail in its direct request, will be fully taken into account in the process and requests the Government to provide information in its next report on any developments as regards the adoption of this draft legislation.
The Committee recalls that it raised other matters in a request addressed directly to the Government.
The Committee hopes that the Government will make every effort to take the necessary action in the near future.

Direct Request (CEACR) - adopted 2013, published 103rd ILC session (2014)

Article 2 of the Convention. Minimum membership requirement. The Committee previously requested the Government to amend section 7 of the Trade Unions and Employer Organisations Act (TEA) so as to lower the minimum membership requirement for the registration of employers’ organizations. The Committee notes with interest that section 24 of the Draft Employment and Industrial Relations Code 2013 (draft 2013 Code) lowers the requirement from seven to five members.
Right of public employees to establish and join organizations of their own choosing. The Committee had previously requested the Government to amend the National Conditions of Service (NCS) providing that all employees are free to join a “recognized” staff association or union, given that there is no legislative provision relating to union recognition. The Committee notes the Government’s indication that there were divergent views among the authorities in this respect, on the one hand recognizing the inconsistency with the TEA and on the other hand considering that this is not an issue as the law overrides the NCS. Reiterating the necessity to remove the reference to “recognized” staff associations or unions from section L.7 of the NCS for the purposes of legal certainty, the Committee requests the Government to provide information as to the decision taken in this respect.
Article 3. Right of organizations to elect representatives freely. In its previous comments, the Committee noted that there was no legal provision regarding the right to elect representatives in full freedom. The Committee notes with interest that this right is expressly guaranteed by section 19 of the draft 2013 Code.
Right of organizations to organize their activities. The Committee notes that the 2008 Amendment Act to the Industrial Relations Code (IRC), while removing the reference to strikes that might “expose valuable property to the risk of destruction” and the prison sentences for participation in unlawful strikes, maintained the prison sentences for strikes in essential services and increased the fine penalties for participation in strikes in essential services or in unlawful strikes. The Committee also notes the Government’s indication that, under the current labour law reform, imprisonment would not be an available sentencing option for strike action, unless it constitutes a criminal offence. Indeed, the Committee welcomes that the draft 2013 Code does not contain penalties of imprisonment in case of participation in strikes in essential services or in unlawful strikes. It notes, however, that involvement in such strikes still constitutes an offence entailing heavy fines and recalls that it has continually emphasized that: (i) no penal sanctions should be imposed against a worker for having carried out a peaceful strike and thus for merely exercising an essential right; and (ii) such sanctions could be envisaged only where, during a strike, violence against persons or property, or other serious infringements of penal law have been committed, and can be imposed exclusively pursuant to legislation punishing these acts, such as the Penal Code (see General Survey on the fundamental Conventions, 2013, paragraph 158). The Committee requests the Government to indicate in its next report the measures taken in order to review the provisions of the draft 2013 Code so as to ensure respect for the principles cited above.
Dispute resolution procedure. The Committee had previously requested the Government to amend the IRC, so as to limit the possibility of imposing compulsory arbitration to cases in line with freedom of association principles. The Committee notes the Government’s indication that: (i) the Decent Work Agenda Steering Committee considered that the removal of the right to compulsory arbitration in case of unsuccessful conciliation might impede effective dispute resolution, given the lack of collective agreements offering alternate avenues for arbitration and the low levels of organization and capacity of unions; and (ii) in view of a progressive implementation of the Convention, the current labour law reform will improve the effectiveness of the process of collective bargaining to reduce the frequency of disputes and facilitate dispute resolution at the workplace level through model procedures. The Committee notes that under section 141 of the draft 2013 Code, the registrar may refer a dispute for arbitration at the request of only one party, or where a dispute is protracted or is tending to endanger or has endangered the welfare of the community or part of it. In this regard, the Committee once again recalls that compulsory arbitration is acceptable under the Convention only at the request of both parties to the dispute, in essential services in the strict sense of the term, and for public servants exercising authority in the name of the State. The Committee requests the Government to indicate in its next report the measures taken to review section 141 of the draft 2013 Code, with a view to ensuring that compulsory arbitration is possible only in cases that are in line with freedom of association principles.
Furthermore, the Committee had previously requested the Government to indicate the measures taken to ensure that specific time limits are introduced in the IRC so that the mediation and conciliation procedure does not become excessively complex or slow. The Committee notes the Government’s indication that, under the current labour law reform, time limits would be imposed at each stage of the dispute resolution process to enable the effective exercise of the right to industrial action. The Committee welcomes the shortened time frame for the Registrar’s response to an employment dispute report (section 152(2) of the draft 2013 Code). It requests the Government to indicate in its next report the measures taken to review the other provisions of the draft 2013 Code relating to conciliation, mediation and arbitration proceedings, so as to introduce additional time limits as to their initiation and duration.

Observation (CEACR) - adopted 2013, published 103rd ILC session (2014)

The Committee recalls that it has been commenting upon the need to modify a number of provisions of the Trade Unions and Employer Organisations Act (TEA) and the Industrial Relations Code (IRC) concerning the minimum membership requirement, the right of public employees to establish and join organizations of their own choosing, the right of organizations to elect their representatives freely and organize their activities and the dispute resolution procedure, so as to bring them into conformity with the Convention. The Committee notes that the Government has requested the International Labour Office to conduct a technical review of the Draft Employment and Industrial Relations Code 2013 (draft 2013 Code), and that the Office’s comments have been transmitted to the Government. Welcoming that certain matters have been addressed in the draft 2013 Code and noting the Government’s indication in its report that the labour law reforms are currently being considered by the Decent Work Agenda Steering Committee, the Committee expects that all its comments, as elaborated upon in detail in its direct request, will be fully taken into account in the process and requests the Government to provide information in its next report on any developments as regards the adoption of this draft legislation.
The Committee is raising other points in a request addressed directly to the Government.

Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

The Committee notes the comments made by the International Organisation of Employers (IOE) on the right to strike, in a communication dated 29 August 2012, which are dealt with in the General Report of the Committee.
The Committee notes with regret that the Government’s report has not been received. It must therefore repeat its previous observation, which read as follows:
The Committee noted with interest that the Kiribati Tripartite Committee drafted, with the assistance of the ILO, several amendments to national labour laws in order to give effect to the Committee’s previous comments. The Committee noted, in particular that, upon adoption of the Trade Unions and Employers’ Organizations Amendment Bill, section 21 of the Trade Union and Employers’ Organizations Act, will be amended by introducing a comprehensive guarantee of the right to organize for all workers and employers. Moreover, upon adoption of the Industrial Relations Code Amendment Bill, section 39 of the Industrial Relations Code will be amended so that a strike decision can be adopted upon approval by a majority of employees who voted in the ballot. These amendments have been recently approved in the first reading by Parliament. The Committee requests the Government to keep it informed of progress made in the adoption of these amendments to section 21 of the Trade Union and Employers’ Organizations Act and section 39 of the Industrial Relations Code.
The Committee also noted, however, that certain issues have not been addressed yet or are still under consideration.
Article 2 of the Convention. Minimum membership requirement. The Committee had previously requested the Government to amend section 7 of the Trade Unions and Employers’ Organizations Act so as to lower the minimum membership requirement for the registration of an employers’ organization which is set at seven members. The Committee noted, from the Government’s report, that due note has been taken of this comment, which is currently under review by the Ministry of Labour, the Kiribati Chamber of Commerce and Industry and the Kiribati Trade Union Congress; the Government will inform the Committee on the outcome and measures taken as a result of these discussions. The Committee requests the Government to keep it informed of the outcome of consultations and to indicate in its next report any measures taken or contemplated with a view to amending section 7 of the Trade Unions and Employers’ Organizations Act so as to lower the minimum membership requirement for the registration of an employers’ organization.
Right of public employees to establish and join organizations of their own choosing. The Committee had previously noted that section L.1 of the National Conditions of Service provides that all employees are free to join a “recognized” staff association or union and had requested the Government to amend this section, given that there is no provision in the law relating to the recognition of trade unions. The Committee noted the Government’s indication that due note has been taken of this comment which is currently under review with the social partners and the Committee will be kept informed of the outcome and measures taken as a result of these discussions. The Committee requests the Government to keep it informed of the outcome of consultations and to indicate in its next report any measures taken or contemplated with a view to amending section L.1 of the National Conditions of Service so as to remove the reference to “recognized” staff associations or unions.
Article 3. Right of employers’ and workers’ organizations to draw up their constitutions and rules, elect their representatives in full freedom, organize their administration and activities and formulate their programmes. Right to elect representatives freely. In its previous comments, the Committee had noted that there is no provision in the law regarding the right of workers and employers to elect their representatives. The Committee noted the Government’s indication that the current practice in which workers and employers elect their representatives, on the basis of their freely drawn constitution, is in line with the Convention. The Government added that it has taken due note of the Committee’s comment which is currently under review by the social partners and the Committee will be kept informed of the outcome and measures taken as a result of these discussions. The Committee took due note of this information.
Compulsory arbitration. In a previous direct request, the Committee had requested the Government to amend sections 8(1)(d), 12, 27 and 28 of the Industrial Relations Code so as to limit the possibility of prohibiting strikes and imposing compulsory arbitration only to those cases which would be in conformity with the Convention. The Committee noted from the Government’s report that section 12 will be amended upon adoption of the draft Industrial Relations Amendment Bill through addition of a new section 12(A)(1) according to which the registrar may only refer a trade dispute to an arbitration tribunal if: (a) all the parties to the dispute request such referral; (b) the dispute is in the public services involving public servants exercising authority in the name of the State; (c) industrial action has been protracted or is tending to endanger or has endangered the personal health, safety or welfare of the community or part of it; (d) conciliation has failed and the parties are unlikely to resolve the dispute.
In this regard, the Committee once again recalls that compulsory arbitration is acceptable under the Convention only at the request of both parties to the dispute, in essential services in the strict sense of the term, and for public servants exercising authority in the name of the State. The existence of protracted disputes (subsection (c)) and the failure of conciliation (subsection (d)) are not per se elements which justify the introduction of compulsory arbitration. Furthermore, the word “welfare” introduced in relation to essential services (subsection (c)) may include issues which go beyond the health and safety of the population in a strict sense and, in that case, would be contrary to the Convention. The Committee requests the Government to amend the Draft Industrial Relations Amendment Bill so as to remove subsection (d) from draft section 12(A)(1)(d), as well as the reference to protracted industrial action and the “welfare of the community” from draft section 12(A)(1)(c) with a view to ensuring that compulsory arbitration is possible only where this is in conformity with the Convention.
Furthermore, concerning the conciliation and mediation machinery, the Committee considers that it should have the sole purpose of facilitating bargaining: it should not be so complex or slow that a lawful strike becomes impossible in practice or loses its effectiveness (see General Survey on freedom of association and collective bargaining, 1994, paragraph 171). The Committee observes in this regard that there are no specific time limits in the Industrial Relations Code for the exhaustion of conciliation proceedings and that sections 8(1)(a), (b), (c) and 9(1)(a) give the Registrar and the Minister the power to prolong the negotiation, conciliation and settlement procedure at their discretion, without any fixed time limits, while according to section 27(1), a strike which takes place before the exhaustion of procedures prescribed for the settlement of trade disputes, shall be unlawful. The Committee requests the Government to indicate the measures taken or contemplated to ensure that specific time limits are introduced in the Industrial Relations Code so that the mediation and conciliation procedure is not so complex or slow that a lawful strike becomes impossible in practice.
Sanctions for strike action/essential services. In its previous comments, the Committee had requested the Government to lift the provision in section 37 of the Industrial Relations Code which has the effect of prohibiting industrial action and imposing heavy penalties including imprisonment in cases where a strike might “expose valuable property to the risk of destruction”. The Committee notes with interest that the draft Industrial Relations Amendment Bill will amend section 37 of the Industrial Relations Code so as to lift this provision. The Committee requests the Government to provide information on the progress made in the adoption of the Draft Industrial Relations Amendment Bill with a view to removing the provision of section 37 of the Industrial Relations Code which imposes heavy penalties including imprisonment for strikes in case they “expose valuable property to the risk of destruction”.
The Committee also recalls that in its previous comments, it had requested the Government to amend section 37 of the Industrial Relations Code which imposes penalties of imprisonment and heavy fines for strikes in essential services. The Committee noted from the Government’s report that the draft Industrial Relations Amendment Bill will amend section 37 of the Industrial Relations Code so as to increase the relevant fines from $100 to $1,000 for strikes in essential services and from $500 to $2,000 for inciting others to participate in a strike in essential services; at the same time, the prison sentences of one year and 18 months, respectively, for strikes in essential services and incitement to participate, therein, have apparently not been amended.
The Committee further recalls that it had previously requested the Government to amend section 30 of the Industrial Relations Code, which imposes sanctions of imprisonment and heavy fines against unlawful strikes in general. The Committee notes from the Government’s report that the prison sentences have been lifted in the draft Industrial Relations Amendment Bill but that the applicable fines have been increased to $1,000 from $100 in case of participation in an unlawful strike and have remained at $2,000 in case of incitement to participate in an unlawful strike.
In this respect, the Committee recalls that no penal sanction should be imposed against a worker for having carried out a peaceful strike and therefore, measures of imprisonment should not be imposed on any account. Such sanctions could be envisaged only where during a strike, violence against persons or property or other serious infringements of rights have been committed, and can be imposed pursuant to legislation punishing such acts. Nevertheless, even in the absence of violence, if the strike modalities had the effect of making the strike illegitimate, proportionate disciplinary sanctions may be imposed against strikers. The Committee requests the Government to review the draft Industrial Relations Amendment Bill so as to amend sections 30 and 37 of the Industrial Relations Code in the manner indicated above.
Articles 5 and 6. Right to establish and join federations and confederations and to affiliate with international organizations of workers and employers. In its previous comments, the Committee requested information on the provisions which guarantee the right of workers’ and employers’ organizations to join federations and confederations of their own choice and to affiliate with international organizations of workers and employers. The Committee noted from the Government’s report that the draft Trade Unions and Employers’ Organizations Amendment Bill will amend section 21(2) of the Trade Unions and Employers’ Organizations Act, 1998, so as to provide that workers’ and employers’ organizations shall have the right to join a federation of trade unions or a federation of employers’ organizations and to affiliate with and participate in the affairs of any international workers’ organization and to contribute to or receive financial assistance from those organizations. The Committee considers that the term “international workers’ and employers’ organizations” would be more appropriate than “international workers’ organizations” given that the right to affiliate with international organizations should be guaranteed not only to workers’ but also to employers’ organizations. It, therefore, requests the Government to amend the draft Trade Unions and Employers’ Organizations Amendment Bill and to keep it informed of progress made in the adoption of the Bill with a view to introducing provisions guaranteeing the right of employers’ and workers’ organizations to establish federations and to affiliate with international organizations of their own choosing.
The Committee hopes that the Government will make every effort to take the necessary action in the near future.

Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

The Committee notes with regret that the Government’s report has not been received. It must therefore repeat its previous observation which read as follows:
Repetition
The Committee noted with interest that the Kiribati Tripartite Committee drafted, with the assistance of the ILO, several amendments to national labour laws in order to give effect to the Committee’s previous comments. The Committee noted, in particular that, upon adoption of the Trade Unions and Employers’ Organizations Amendment Bill, section 21 of the Trade Union and Employers’ Organizations Act, will be amended by introducing a comprehensive guarantee of the right to organize for all workers and employers. Moreover, upon adoption of the Industrial Relations Code Amendment Bill, section 39 of the Industrial Relations Code will be amended so that a strike decision can be adopted upon approval by a majority of employees who voted in the ballot. These amendments have been recently approved in the first reading by Parliament. The Committee requests the Government to keep it informed of progress made in the adoption of these amendments to section 21 of the Trade Union and Employers’ Organizations Act and section 39 of the Industrial Relations Code.
The Committee also noted, however, that certain issues have not been addressed yet or are still under consideration.
Article 2 of the Convention. Minimum membership requirement. The Committee had previously requested the Government to amend section 7 of the Trade Unions and Employers’ Organizations Act so as to lower the minimum membership requirement for the registration of an employers’ organization which is set at seven members. The Committee noted, from the Government’s report, that due note has been taken of this comment, which is currently under review by the Ministry of Labour, the Kiribati Chamber of Commerce and Industry and the Kiribati Trade Union Congress; the Government will inform the Committee on the outcome and measures taken as a result of these discussions. The Committee requests the Government to keep it informed of the outcome of consultations and to indicate in its next report any measures taken or contemplated with a view to amending section 7 of the Trade Unions and Employers’ Organizations Act so as to lower the minimum membership requirement for the registration of an employers’ organization.
Right of public employees to establish and join organizations of their own choosing. The Committee had previously noted that section L.1 of the National Conditions of Service provides that all employees are free to join a “recognized” staff association or union and had requested the Government to amend this section, given that there is no provision in the law relating to the recognition of trade unions. The Committee noted the Government’s indication that due note has been taken of this comment which is currently under review with the social partners and the Committee will be kept informed of the outcome and measures taken as a result of these discussions. The Committee requests the Government to keep it informed of the outcome of consultations and to indicate in its next report any measures taken or contemplated with a view to amending section L.1 of the National Conditions of Service so as to remove the reference to “recognized” staff associations or unions.
Article 3. Right of employers’ and workers’ organizations to draw up their constitutions and rules, elect their representatives in full freedom, organize their administration and activities and formulate their programmes. Right to elect representatives freely. In its previous comments, the Committee had noted that there is no provision in the law regarding the right of workers and employers to elect their representatives. The Committee noted the Government’s indication that the current practice in which workers and employers elect their representatives, on the basis of their freely drawn constitution, is in line with the Convention. The Government added that it has taken due note of the Committee’s comment which is currently under review by the social partners and the Committee will be kept informed of the outcome and measures taken as a result of these discussions. The Committee took due note of this information.
Compulsory arbitration. In a previous direct request, the Committee had requested the Government to amend sections 8(1)(d), 12, 27 and 28 of the Industrial Relations Code so as to limit the possibility of prohibiting strikes and imposing compulsory arbitration only to those cases which would be in conformity with the Convention. The Committee noted from the Government’s report that section 12 will be amended upon adoption of the draft Industrial Relations Amendment Bill through addition of a new section 12(A)(1) according to which the registrar may only refer a trade dispute to an arbitration tribunal if: (a) all the parties to the dispute request such referral; (b) the dispute is in the public services involving public servants exercising authority in the name of the State; (c) industrial action has been protracted or is tending to endanger or has endangered the personal health, safety or welfare of the community or part of it; (d) conciliation has failed and the parties are unlikely to resolve the dispute.
In this regard, the Committee once again recalls that compulsory arbitration is acceptable under the Convention only at the request of both parties to the dispute, in essential services in the strict sense of the term, and for public servants exercising authority in the name of the State. The existence of protracted disputes (subsection(c)) and the failure of conciliation (subsection (d)) are not per se elements which justify the introduction of compulsory arbitration. Furthermore, the word “welfare” introduced in relation to essential services (subsection (c)) may include issues which go beyond the health and safety of the population in a strict sense and, in that case, would be contrary to the Convention. The Committee requests the Government to amend the Draft Industrial Relations Amendment Bill so as to remove subsection (d) from draft section 12(A)(1)(d), as well as the reference to protracted industrial action and the “welfare of the community” from draft section 12(A)(1)(c) with a view to ensuring that compulsory arbitration is possible only where this is in conformity with the Convention.
Furthermore, concerning the conciliation and mediation machinery, the Committee considers that it should have the sole purpose of facilitating bargaining: it should not be so complex or slow that a lawful strike becomes impossible in practice or loses its effectiveness (see General Survey on freedom of association and collective bargaining, 1994, paragraph 171). The Committee observes in this regard that there are no specific time limits in the Industrial Relations Code for the exhaustion of conciliation proceedings and that sections 8(1)(a), (b), (c) and 9(1)(a) give the Registrar and the Minister the power to prolong the negotiation, conciliation and settlement procedure at their discretion, without any fixed time limits, while according to section 27(1), a strike which takes place before the exhaustion of procedures prescribed for the settlement of trade disputes, shall be unlawful. The Committee requests the Government to indicate the measures taken or contemplated to ensure that specific time limits are introduced in the Industrial Relations Code so that the mediation and conciliation procedure is not so complex or slow that a lawful strike becomes impossible in practice.
Sanctions for strike action/essential services. In its previous comments, the Committee had requested the Government to lift the provision in section 37 of the Industrial Relations Code which has the effect of prohibiting industrial action and imposing heavy penalties including imprisonment in cases where a strike might “expose valuable property to the risk of destruction”. The Committee notes with interest that the draft Industrial Relations Amendment Bill will amend section 37 of the Industrial Relations Code so as to lift this provision. The Committee requests the Government to provide information on the progress made in the adoption of the Draft Industrial Relations Amendment Bill with a view to removing the provision of section 37 of the Industrial Relations Code which imposes heavy penalties including imprisonment for strikes in case they “expose valuable property to the risk of destruction”.
The Committee also recalls that in its previous comments, it had requested the Government to amend section 37 of the Industrial Relations Code which imposes penalties of imprisonment and heavy fines for strikes in essential services. The Committee noted from the Government’s report that the draft Industrial Relations Amendment Bill will amend section 37 of the Industrial Relations Code so as to increase the relevant fines from $100 to $1,000 for strikes in essential services and from $500 to $2,000 for inciting others to participate in a strike in essential services; at the same time, the prison sentences of one year and 18 months, respectively, for strikes in essential services and incitement to participate, therein, have apparently not been amended.
The Committee further recalls that it had previously requested the Government to amend section 30 of the Industrial Relations Code, which imposes sanctions of imprisonment and heavy fines against unlawful strikes in general. The Committee notes from the Government’s report that the prison sentences have been lifted in the draft Industrial Relations Amendment Bill but that the applicable fines have been increased to $1,000 from $100 in case of participation in an unlawful strike and have remained at $2,000 in case of incitement to participate in an unlawful strike.
In this respect, the Committee recalls that no penal sanction should be imposed against a worker for having carried out a peaceful strike and therefore, measures of imprisonment should not be imposed on any account. Such sanctions could be envisaged only where during a strike, violence against persons or property or other serious infringements of rights have been committed, and can be imposed pursuant to legislation punishing such acts. Nevertheless, even in the absence of violence, if the strike modalities had the effect of making the strike illegitimate, proportionate disciplinary sanctions may be imposed against strikers. The Committee requests the Government to review the draft Industrial Relations Amendment Bill so as to amend sections 30 and 37 of the Industrial Relations Code in the manner indicated above.
Articles 5 and 6. Right to establish and join federations and confederations and to affiliate with international organizations of workers and employers. In its previous comments, the Committee requested information on the provisions which guarantee the right of workers’ and employers’ organizations to join federations and confederations of their own choice and to affiliate with international organizations of workers and employers. The Committee noted from the Government’s report that the draft Trade Unions and Employers’ Organizations Amendment Bill will amend section 21(2) of the Trade Unions and Employers’ Organizations Act, 1998, so as to provide that workers’ and employers’ organizations shall have the right to join a federation of trade unions or a federation of employers’ organizations and to affiliate with and participate in the affairs of any international workers’ organization and to contribute to or receive financial assistance from those organizations. The Committee considers that the term “international workers’ and employers’ organizations” would be more appropriate than “international workers’ organizations” given that the right to affiliate with international organizations should be guaranteed not only to workers’ but also to employers’ organizations. It, therefore, requests the Government to amend the draft Trade Unions and Employers’ Organizations Amendment Bill and to keep it informed of progress made in the adoption of the Bill with a view to introducing provisions guaranteeing the right of employers’ and workers’ organizations to establish federations and to affiliate with international organizations of their own choosing.
The Committee hopes that the Government will make every effort to take the necessary action in the near future.

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

The Committee notes that the Government’s report has not been received. It must therefore repeat its previous observation which read as follows:

The Committee noted with interest that the Kiribati Tripartite Committee drafted, with the assistance of the ILO, several amendments to national labour laws in order to give effect to the Committee’s previous comments. The Committee noted, in particular that, upon adoption of the Trade Unions and Employers’ Organizations Amendment Bill, section 21 of the Trade Union and Employers’ Organizations Act, will be amended by introducing a comprehensive guarantee of the right to organize for all workers and employers. Moreover, upon adoption of the Industrial Relations Code Amendment Bill, section 39 of the Industrial Relations Code will be amended so that a strike decision can be adopted upon approval by a majority of employees who voted in the ballot. These amendments have been recently approved in the first reading by Parliament. The Committee requests the Government to keep it informed of progress made in the adoption of these amendments to section 21 of the Trade Union and Employers’ Organizations Act and section 39 of the Industrial Relations Code.

The Committee also noted, however, that certain issues have not been addressed yet or are still under consideration.

Article 2 of the Convention. Minimum membership requirement. The Committee had previously requested the Government to amend section 7 of the Trade Unions and Employers’ Organizations Act so as to lower the minimum membership requirement for the registration of an employers’ organization which is set at seven members. The Committee noted, from the Government’s report, that due note has been taken of this comment, which is currently under review by the Ministry of Labour, the Kiribati Chamber of Commerce and Industry and the Kiribati Trade Union Congress; the Government will inform the Committee on the outcome and measures taken as a result of these discussions. The Committee requests the Government to keep it informed of the outcome of consultations and to indicate in its next report any measures taken or contemplated with a view to amending section 7 of the Trade Unions and Employers’ Organizations Act so as to lower the minimum membership requirement for the registration of an employers’ organization.

Right of public employees to establish and join organizations of their own choosing. The Committee had previously noted that section L.1 of the National Conditions of Service provides that all employees are free to join a “recognized” staff association or union and had requested the Government to amend this section, given that there is no provision in the law relating to the recognition of trade unions. The Committee noted the Government’s indication that due note has been taken of this comment which is currently under review with the social partners and the Committee will be kept informed of the outcome and measures taken as a result of these discussions. The Committee requests the Government to keep it informed of the outcome of consultations and to indicate in its next report any measures taken or contemplated with a view to amending section L.1 of the National Conditions of Service so as to remove the reference to “recognized” staff associations or unions.

Article 3. Right of employers’ and workers’ organizations to draw up their constitutions and rules, elect their representatives in full freedom, organize their administration and activities and formulate their programmes. Right to elect representatives freely. In its previous comments, the Committee had noted that there is no provision in the law regarding the right of workers and employers to elect their representatives. The Committee noted the Government’s indication that the current practice in which workers and employers elect their representatives, on the basis of their freely drawn constitution, is in line with the Convention. The Government added that it has taken due note of the Committee’s comment which is currently under review by the social partners and the Committee will be kept informed of the outcome and measures taken as a result of these discussions. The Committee took due note of this information.

Compulsory arbitration. In a previous direct request, the Committee had requested the Government to amend sections 8(1)(d), 12, 27 and 28 of the Industrial Relations Code so as to limit the possibility of prohibiting strikes and imposing compulsory arbitration only to those cases which would be in conformity with the Convention. The Committee noted from the Government’s report that section 12 will be amended upon adoption of the draft Industrial Relations Amendment Bill through addition of a new section 12(A)(1) according to which the registrar may only refer a trade dispute to an arbitration tribunal if: (a) all the parties to the dispute request such referral; (b) the dispute is in the public services involving public servants exercising authority in the name of the State; (c) industrial action has been protracted or is tending to endanger or has endangered the personal health, safety or welfare of the community or part of it; (d) conciliation has failed and the parties are unlikely to resolve the dispute.

In this regard, the Committee once again recalls that compulsory arbitration is acceptable under the Convention only at the request of both parties to the dispute, in essential services in the strict sense of the term, and for public servants exercising authority in the name of the State. The existence of protracted disputes (subsection(c)) and the failure of conciliation (subsection (d)) are not per se elements which justify the introduction of compulsory arbitration. Furthermore, the word “welfare” introduced in relation to essential services (subsection (c)) may include issues which go beyond the health and safety of the population in a strict sense and, in that case, would be contrary to the Convention. The Committee requests the Government to amend the Draft Industrial Relations Amendment Bill so as to remove subsection (d) from draft section 12(A)(1)(d), as well as the reference to protracted industrial action and the “welfare of the community” from draft section 12(A)(1)(c) with a view to ensuring that compulsory arbitration is possible only where this is in conformity with the Convention.

Furthermore, concerning the conciliation and mediation machinery, the Committee considers that it should have the sole purpose of facilitating bargaining: it should not be so complex or slow that a lawful strike becomes impossible in practice or loses its effectiveness (see General Survey on freedom of association and collective bargaining, 1994, paragraph 171). The Committee observes in this regard that there are no specific time limits in the Industrial Relations Code for the exhaustion of conciliation proceedings and that sections 8(1)(a), (b), (c) and 9(1)(a) give the Registrar and the Minister the power to prolong the negotiation, conciliation and settlement procedure at their discretion, without any fixed time limits, while according to section 27(1), a strike which takes place before the exhaustion of procedures prescribed for the settlement of trade disputes, shall be unlawful. The Committee requests the Government to indicate the measures taken or contemplated to ensure that specific time limits are introduced in the Industrial Relations Code so that the mediation and conciliation procedure is not so complex or slow that a lawful strike becomes impossible in practice.

Sanctions for strike action/essential services. In its previous comments, the Committee had requested the Government to lift the provision in section 37 of the Industrial Relations Code which has the effect of prohibiting industrial action and imposing heavy penalties including imprisonment in cases where a strike might “expose valuable property to the risk of destruction”. The Committee notes with interest that the draft Industrial Relations Amendment Bill will amend section 37 of the Industrial Relations Code so as to lift this provision. The Committee requests the Government to keep it informed of progress made in the adoption of the Draft Industrial Relations Amendment Bill with a view to removing the provision of section 37 of the Industrial Relations Code which imposes heavy penalties including imprisonment for strikes in case they “expose valuable property to the risk of destruction”.

The Committee also recalls that in its previous comments, it had requested the Government to amend section 37 of the Industrial Relations Code which imposes penalties of imprisonment and heavy fines for strikes in essential services. The Committee noted from the Government’s report that the draft Industrial Relations Amendment Bill will amend section 37 of the Industrial Relations Code so as to increase the relevant fines from $100 to $1,000 for strikes in essential services and from $500 to $2,000 for inciting others to participate in a strike in essential services; at the same time, the prison sentences of one year and 18 months, respectively, for strikes in essential services and incitement to participate, therein, have apparently not been amended.

The Committee further recalls that it had previously requested the Government to amend section 30 of the Industrial Relations Code, which imposes sanctions of imprisonment and heavy fines against unlawful strikes in general. The Committee notes from the Government’s report that the prison sentences have been lifted in the draft Industrial Relations Amendment Bill but that the applicable fines have been increased to $1,000 from $100 in case of participation in an unlawful strike and have remained at $2,000 in case of incitement to participate in an unlawful strike.

In this respect, the Committee recalls that no penal sanction should be imposed against a worker for having carried out a peaceful strike and therefore, measures of imprisonment should not be imposed on any account. Such sanctions could be envisaged only where during a strike, violence against persons or property or other serious infringements of rights have been committed, and can be imposed pursuant to legislation punishing such acts. Nevertheless, even in the absence of violence, if the strike modalities had the effect of making the strike illegitimate, proportionate disciplinary sanctions may be imposed against strikers. The Committee requests the Government to review the draft Industrial Relations Amendment Bill so as to amend sections 30 and 37 of the Industrial Relations Code in the manner indicated above.

Articles 5 and 6. Right to establish and join federations and confederations and to affiliate with international organizations of workers and employers. In its previous comments, the Committee requested information on the provisions which guarantee the right of workers’ and employers’ organizations to join federations and confederations of their own choice and to affiliate with international organizations of workers and employers. The Committee noted from the Government’s report that the draft Trade Unions and Employers’ Organizations Amendment Bill will amend section 21(2) of the Trade Unions and Employers’ Organizations Act, 1998, so as to provide that workers’ and employers’ organizations shall have the right to join a federation of trade unions or a federation of employers’ organizations and to affiliate with and participate in the affairs of any international workers’ organization and to contribute to or receive financial assistance from those organizations. The Committee considers that the term “international workers’ and employers’ organizations” would be more appropriate than “international workers’ organizations” given that the right to affiliate with international organizations should be guaranteed not only to workers’ but also to employers’ organizations. It, therefore, requests the Government to amend the draft Trade Unions and Employers’ Organizations Amendment Bill and to keep it informed of progress made in the adoption of the Bill with a view to introducing provisions guaranteeing the right of employers’ and workers’ organizations to establish federations and to affiliate with international organizations of their own choosing.

The Committee hopes that the Government will make every effort to take the necessary action in the near future.

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

The Committee notes with interest that the Kiribati Tripartite Committee drafted, with the assistance of the ILO, several amendments to national labour laws in order to give effect to the Committee’s previous comments. The Committee notes, in particular, that, upon adoption of the Trade Unions and Employers’ Organizations Amendment Bill, section 21 of the Trade Union and Employers’ Organizations Act, will be amended by introducing a comprehensive guarantee of the right to organize for all workers and employers. Moreover, upon adoption of the Industrial Relations Code Amendment Bill, section 39 of the Industrial Relations Code will be amended so that a strike decision can be adopted upon approval by a majority of employees who voted in the ballot. These amendments have been recently approved in the first reading by Parliament. The Committee requests the Government to keep it informed of progress made in the adoption of these amendments to section 21 of the Trade Union and Employers’ Organizations Act and section 39 of the Industrial Relations Code.

The Committee also notes, however, that certain issues have not been addressed yet or are still under consideration.

Article 2 of the Convention. Minimum membership requirement. The Committee had previously requested the Government to amend section 7 of the Trade Unions and Employers’ Organizations Act so as to lower the minimum membership requirement for the registration of an employers’ organization which is set at seven members. The Committee notes, from the Government’s report, that due note has been taken of this comment, which is currently under review by the Ministry of Labour, the Kiribati Chamber of Commerce and Industry and the Kiribati Trade Union Congress; the Government will inform the Committee on the outcome and measures taken as a result of these discussions. The Committee requests the Government to keep it informed of the outcome of consultations and to indicate in its next report any measures taken or contemplated with a view to amending section 7 of the Trade Unions and Employers’ Organizations Act so as to lower the minimum membership requirement for the registration of an employers’ organization.

Right of public employees to establish and join organizations of their own choosing. The Committee had previously noted that section L.1 of the National Conditions of Service provides that all employees are free to join a “recognized” staff association or union and had requested the Government to amend this section, given that there is no provision in the law relating to the recognition of trade unions. The Committee notes the Government’s indication that due note has been taken of this comment which is currently under review with the social partners and the Committee will be kept informed of the outcome and measures taken as a result of these discussions. The Committee requests the Government to keep it informed of the outcome of consultations and to indicate in its next report any measures taken or contemplated with a view to amending section L.1 of the National Conditions of Service so as to remove the reference to “recognized” staff associations or unions.

Article 3. Right of employers’ and workers’ organizations to draw up their constitutions and rules, elect their representatives in full freedom, organize their administration and activities and formulate their programmes. Right to elect representatives freely. In its previous comments, the Committee had noted that there is no provision in the law regarding the right of workers and employers to elect their representatives. The Committee notes the Government’s indication that the current practice in which workers and employers elect their representatives, on the basis of their freely drawn constitution, is in line with the Convention. The Government adds that it has taken due note of the Committee’s comment which is currently under review by the social partners and the Committee will be kept informed of the outcome and measures taken as a result of these discussions. The Committee takes due note of this information.

Compulsory arbitration. In a previous direct request, the Committee had requested the Government to amend sections 8(1)(d), 12, 27 and 28 of the Industrial Relations Code so as to limit the possibility of prohibiting strikes and imposing compulsory arbitration only to those cases which would be in conformity with the Convention. The Committee notes from the Government’s report that section 12 will be amended upon adoption of the draft Industrial Relations Amendment Bill through addition of a new section 12(A)(1) according to which the registrar may only refer a trade dispute to an arbitration tribunal if: (a) all the parties to the dispute request such referral; (b) the dispute is in the public services involving public servants exercising authority in the name of the State; (c) industrial action has been protracted or is tending to endanger or has endangered the personal health, safety or welfare of the community or part of it; (d) conciliation has failed and the parties are unlikely to resolve the dispute.

In this regard, the Committee once again recalls that compulsory arbitration is acceptable under the Convention only at the request of both parties to the dispute, in essential services in the strict sense of the term, and for public servants exercising authority in the name of the State. The existence of protracted disputes (subsection (c)) and the failure of conciliation (subsection (d)) are not per se elements which justify the introduction of compulsory arbitration. Furthermore, the word “welfare” introduced in relation to essential services (subsection (c)) may include issues which go beyond the health and safety of the population in a strict sense and, in that case, would be contrary to the Convention. The Committee requests the Government to amend the Draft Industrial Relations Amendment Bill so as to remove subsection (d) from draft section 12(A)(1)(d), as well as the reference to protracted industrial action and the “welfare of the community” from draft section 12(A)(1)(c) with a view to ensuring that compulsory arbitration is possible only where this is in conformity with the Convention.

Furthermore, concerning the conciliation and mediation machinery, the Committee considers that it should have the sole purpose of facilitating bargaining: it should not be so complex or slow that a lawful strike becomes impossible in practice or loses its effectiveness (see General Survey on freedom of association and collective bargaining, 1994, paragraph 171). The Committee observes in this regard that there are no specific time limits in the Industrial Relations Code for the exhaustion of conciliation proceedings and that sections 8(1)(a), (b), (c) and 9(1)(a) give the Registrar and the Minister the power to prolong the negotiation, conciliation and settlement procedure at their discretion, without any fixed time limits, while according to section 27(1), a strike which takes place before the exhaustion of procedures prescribed for the settlement of trade disputes, shall be unlawful. The Committee requests the Government to indicate the measures taken or contemplated to ensure that specific time limits are introduced in the Industrial Relations Code so that the mediation and conciliation procedure is not so complex or slow that a lawful strike becomes impossible in practice.

Sanctions for strike action/essential services. In its previous comments, the Committee had requested the Government to lift the provision in section 37 of the Industrial Relations Code which has the effect of prohibiting industrial action and imposing heavy penalties including imprisonment in cases where a strike might “expose valuable property to the risk of destruction”. The Committee notes with interest that the draft Industrial Relations Amendment Bill will amend section 37 of the Industrial Relations Code so as to lift this provision. The Committee requests the Government to keep it informed of progress made in the adoption of the Draft Industrial Relations Amendment Bill with a view to removing the provision of section 37 of the Industrial Relations Code which imposes heavy penalties including imprisonment for strikes in case they “expose valuable property to the risk of destruction”.

The Committee also recalls that in its previous comments, it had requested the Government to amend section 37 of the Industrial Relations Code which imposes penalties of imprisonment and heavy fines for strikes in essential services. The Committee notes from the Government’s report that the draft Industrial Relations Amendment Bill will amend section 37 of the Industrial Relations Code so as to increase the relevant fines from $100 to $1,000 for strikes in essential services and from $500 to $2,000 for inciting others to participate in a strike in essential services; at the same time, the prison sentences of one year and 18 months, respectively, for strikes in essential services and incitement to participate, therein, have apparently not been amended.

The Committee further recalls that it had previously requested the Government to amend section 30 of the Industrial Relations Code, which imposes sanctions of imprisonment and heavy fines against unlawful strikes in general. The Committee notes from the Government’s report that the prison sentences have been lifted in the draft Industrial Relations Amendment Bill but that the applicable fines have been increased to $1,000 from $100 in case of participation in an unlawful strike and have remained at $2,000 in case of incitement to participate in an unlawful strike.

In this respect, the Committee recalls that no penal sanction should be imposed against a worker for having carried out a peaceful strike and therefore, measures of imprisonment should not be imposed on any account. Such sanctions could be envisaged only where during a strike, violence against persons or property or other serious infringements of rights have been committed, and can be imposed pursuant to legislation punishing such acts. Nevertheless, even in the absence of violence, if the strike modalities had the effect of making the strike illegitimate, proportionate disciplinary sanctions may be imposed against strikers. The Committee requests the Government to review the draft Industrial Relations Amendment Bill so as to amend sections 30 and 37 of the Industrial Relations Code in the manner indicated above.

Articles 5 and 6. Right to establish and join federations and confederations and to affiliate with international organizations of workers and employers. In its previous comments, the Committee requested information on the provisions which guarantee the right of workers’ and employers’ organizations to join federations and confederations of their own choice and to affiliate with international organizations of workers and employers. The Committee notes from the Government’s report that the draft Trade Unions and Employers’ Organizations Amendment Bill will amend section 21(2) of the Trade Unions and Employers’ Organizations Act, 1998, so as to provide that workers’ and employers’ organizations shall have the right to join a federation of trade unions or a federation of employers’ organizations and to affiliate with and participate in the affairs of any international workers’ organization and to contribute to or receive financial assistance from those organizations. The Committee considers that the term “international workers’ and employers’ organizations” would be more appropriate than “international workers’ organizations” given that the right to affiliate with international organizations should be guaranteed not only to workers’ but also to employers’ organizations. It, therefore, requests the Government to amend the draft Trade Unions and Employers’ Organizations Amendment Bill and to keep it informed of progress made in the adoption of the Bill with a view to introducing provisions guaranteeing the right of employers’ and workers’ organizations to establish federations and to affiliate with international organizations of their own choosing.

Direct Request (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee notes with regret 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:

A. Article 2 of the Convention. 1. Right of employers and workers to establish organizations of their own choosing. The Committee noted that section 13(1) of the Constitution guarantees to all persons the freedom to form and belong to associations for the advancement or protection of their interests. Moreover, section 21 of the Trade Union and Employer Organizations Act, which is entitled “Freedom of association of workers”, indicates inter alia that nothing in that law shall prohibit any worker from being or becoming a trade union member. The Committee noted that there is no comprehensive provision in the law guaranteeing to all workers and employers the right to establish and join organizations of their own choosing. The Committee requested that the Government amend section 21 of the Trade Union and Employer Organizations Act with a view to adopting such a provision.

2. Minimum membership requirement. The Committee noted that section 7 of the Trade Unions and Employer Organizations Act sets a minimum membership requirement of seven members for the registration of employers’ organizations. The Committee considers that this requirement might be excessively high and discourage the establishment of employers’ organizations. The Committee requests that the Government amend section 7 of the Trade Unions and Employer Organizations Act so as to lower the minimum membership requirement for the registration of an employers’ organization.

3. Right of public employees to establish and join organizations of their own choosing. The Committee noted that section L.1 of the National Conditions of Service provides that all employees are free to join a “recognized” staff association or union. Given that there is no provision in the law relating to the recognition of trade unions, the Committee requests that the Government amend Section L.1 by substituting “registered” for “recognized”.

B. Article 3.  Right of employers’ and workers’ organizations to draw up their constitutions and rules, elect their representatives in full freedom, organize their administration and activities and formulate their programmes. 1. Right to elect representatives freely. The Committee noted that there is no provision in the law regarding the right of workers and employers to elect their representatives. The Committee requests that the Government indicate the legislative provisions which guarantee to members of employers’ and workers’ organizations, the right to elect their representatives in full freedom.

2. Strike ballots. The Committee noted that section 39 of the Industrial Relations Code Act, 1998, requires a two-thirds majority of those eligible to vote in order to reach a decision to strike. The Committee considers that, although the requirement of a strike ballot does not in principle raise problems of compatibility with the Convention, the ballot method, the quorum and the majority required should not be such that the exercise of the right to strike becomes very difficult or even impossible in practice (see General Survey, op. cit., paragraph 170). The Committee therefore requests that the Government indicate in its next report the measures taken to amend section 39 of the Industrial Relations Code so as to ensure that, when a decision to strike is taken by ballot, account is taken only of the votes cast, and that the required majority is lowered.

3. Compulsory arbitration. The Committee noted that sections 8(1)(d) and 12 of the Industrial Relations Code enable the Registrar to refer any trade dispute to arbitration for a final and binding decision. Section 27 renders any strike unlawful when a trade dispute procedure prescribed in the Act for the settlement of trade disputes has not been exhausted while section 28 further enables the Minister to declare strikes unlawful where an agreement or an award has been made settling the dispute. The Committee recalls that such a system makes it possible to prohibit virtually all strikes or to end them quickly thereby seriously limiting the means available to trade unions to further and defend the interests of their members as well as their right to organize their activities and formulate their programmes (see General Survey, op. cit., paragraph 153). Compulsory arbitration to end a trade dispute is acceptable only: (i) if it is at the request of both parties to the dispute; (ii) in the case of disputes in the public service involving public servants exercising authority in the name of the State; or (iii) in essential services in the strict sense of the term, namely those services whose interruption would endanger the life, personal safety or health of the whole or part of the population. The Committee therefore requests that the Government indicate in its next report the measures taken to amend sections 8(1)(d), 12, 27 and 28 of the Industrial Relations Code so as to limit the possibility of prohibiting strikes and impose compulsory arbitration only to those cases which would be in conformity with the Convention.

4. Essential services. The Committee noted that section 37 of the Industrial Relations Code has the effect of prohibiting industrial action and imposing heavy penalties including imprisonment  in cases where a strike might “expose valuable property to the risk of destruction”. The Committee recalls from above that restrictions on the right to strike are admissible under the Convention only in essential services in the strict sense of the term, public servants exercising authority in the name of the State and in case of an acute national crisis. Any other restriction or prohibition which falls outside these confines is contrary to Article 3 of the Convention. Sanctions for strike action should be possible only where the prohibitions in question are in conformity with the principles of freedom of association. The Committee therefore requests that the Government indicate in its next report the measures taken so as to lift section 37 of the Industrial Relations Code.

5. Sanctions for strike action. The Committee noted that, according to section 30 of the Industrial Relations Code, sanctions against unlawful strikes include imprisonment of up to one year and heavy fines. Moreover, under section 37 of the Industrial Relations Code, penalties of imprisonment for strikes in essential services can be imposed for a term of up to 18 months as well as heavy fines. The Committee once again recalls that sanctions for strike action should be possible only where the prohibitions in question are in conformity with the principles of freedom of association. Even in such cases, the existence of heavy sanctions for strike action may create more problems than they solve, since the application of disproportionate penal sanctions does not favour the development of harmonious and stable industrial relations. In particular with regard to sanctions against strikes in essential services, the Committee emphasizes that such sanctions should not be disproportionate to the seriousness of the violations and that in any case, peaceful strikes should not be sanctioned by imprisonment. The Committee requests that the Government indicate in its next report the measures taken to ensure that any prison sanctions are proportional to the seriousness of the violations and that in any case, imprisonment may not be imposed in case of peaceful strikes.

C. Articles 5 and 6. Right to establish and join federations and confederations and to affiliate with international organizations of workers and employers. The Committee noted that there is no provision in the law regarding the right of workers’ and employers’ organizations to join federations or confederations of their own choice and to affiliate with international organizations of workers and employers. The Committee requests that the Government indicate in its next report the provisions which guarantee the right of workers’ and employers’ organizations to join federations and confederations of their own choice and to affiliate with international organizations of workers and employers.

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

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:

A. Article 2 of the Convention. 1. Right of employers and workers to establish organizations of their own choosing. The Committee noted that section 13(1) of the Constitution guarantees to all persons the freedom to form and belong to associations for the advancement or protection of their interests. Moreover, Section 21 of the Trade Union and Employer Organizations Act, which is entitled “Freedom of association of workers”, indicates inter alia that nothing in that law shall prohibit any worker from being or becoming a trade union member. The Committee noted that there is no comprehensive provision in the law guaranteeing to all workers and employers the right to establish and join organizations of their own choosing. The Committee requested that the Government amend section 21 of the Trade Union and Employer Organizations Act with a view to adopting such a provision.

2. Minimum membership requirement. The Committee noted that section 7 of the Trade Unions and Employer Organizations Act sets a minimum membership requirement of seven members for the registration of employers’ organizations. The Committee considers that this requirement might be excessively high and discourage the establishment of employers’ organizations. The Committee requests that the Government amend section 7 of the Trade Unions and Employer Organizations Act so as to lower the minimum membership requirement for the registration of an employers’ organization.

3. Right of public employees to establish and join organizations of their own choosing. The Committee noted that section L.1 of the National Conditions of Service provides that all employees are free to join a “recognized” staff association or union. Given that there is no provision in the law relating to the recognition of trade unions, the Committee requests that the Government amend Section L.1 by substituting “registered” for “recognized”.

B. Article 3.  Right of employers’ and workers’ organizations to draw up their constitutions and rules, elect their representatives in full freedom, organize their administration and activities and formulate their programmes. 1. Right to elect representatives freely. The Committee noted that there is no provision in the law regarding the right of workers and employers to elect their representatives. The Committee requests that the Government indicate the legislative provisions which guarantee to members of employers’ and workers’ organizations, the right to elect their representatives in full freedom.

2. Strike ballots. The Committee noted that section 39 of the Industrial Relations Code Act, 1998, requires a two-thirds majority of those eligible to vote in order to reach a decision to strike. The Committee considers that, although the requirement of a strike ballot does not in principle raise problems of compatibility with the Convention, the ballot method, the quorum and the majority required should not be such that the exercise of the right to strike becomes very difficult or even impossible in practice (see General Survey, op. cit., paragraph 170). The Committee therefore requests that the Government indicate in its next report the measures taken to amend section 39 of the Industrial Relations Code so as to ensure that, when a decision to strike is taken by ballot, account is taken only of the votes cast, and that the required majority is lowered.

3. Compulsory arbitration. The Committee noted that sections 8(1)(d) and 12 of the Industrial Relations Code enable the Registrar to refer any trade dispute to arbitration for a final and binding decision. Section 27 renders any strike unlawful when a trade dispute procedure prescribed in the Act for the settlement of trade disputes has not been exhausted while section 28 further enables the Minister to declare strikes unlawful where an agreement or an award has been made settling the dispute. The Committee recalls that such a system makes it possible to prohibit virtually all strikes or to end them quickly thereby seriously limiting the means available to trade unions to further and defend the interests of their members as well as their right to organize their activities and formulate their programmes (see General Survey, op. cit., paragraph 153). Compulsory arbitration to end a trade dispute is acceptable only: (i) if it is at the request of both parties to the dispute; (ii) in the case of disputes in the public service involving public servants exercising authority in the name of the State; or (iii) in essential services in the strict sense of the term, namely those services whose interruption would endanger the life, personal safety or health of the whole or part of the population. The Committee therefore requests that the Government indicate in its next report the measures taken to amend sections 8(1)(d), 12, 27 and 28 of the Industrial Relations Code so as to limit the possibility of prohibiting strikes and impose compulsory arbitration only to those cases which would be in conformity with the Convention.

4. Essential services. The Committee noted that section 37 of the Industrial Relations Code has the effect of prohibiting industrial action and imposing heavy penalties including imprisonment  in cases where a strike might “expose valuable property to the risk of destruction”. The Committee recalls from above that restrictions on the right to strike are admissible under the Convention only in essential services in the strict sense of the term, public servants exercising authority in the name of the State and in case of an acute national crisis. Any other restriction or prohibition which falls outside these confines is contrary to Article 3 of the Convention. Sanctions for strike action should be possible only where the prohibitions in question are in conformity with the principles of freedom of association. The Committee therefore requests that the Government indicate in its next report the measures taken so as to lift section 37 of the Industrial Relations Code.

5. Sanctions for strike action. The Committee noted that, according to section 30 of the Industrial Relations Code, sanctions against unlawful strikes include imprisonment of up to one year and heavy fines. Moreover, under section 37 of the Industrial Relations Code, penalties of imprisonment for strikes in essential services can be imposed for a term of up to 18 months as well as heavy fines. The Committee once again recalls that sanctions for strike action should be possible only where the prohibitions in question are in conformity with the principles of freedom of association. Even in such cases, the existence of heavy sanctions for strike action may create more problems than they solve, since the application of disproportionate penal sanctions does not favour the development of harmonious and stable industrial relations. In particular with regard to sanctions against strikes in essential services, the Committee emphasizes that such sanctions should not be disproportionate to the seriousness of the violations and that in any case, peaceful strikes should not be sanctioned by imprisonment. The Committee requests that the Government indicate in its next report the measures taken to ensure that any prison sanctions are proportional to the seriousness of the violations and that in any case, imprisonment may not be imposed in case of peaceful strikes.

C. Articles 5 and 6. Right to establish and join federations and confederations and to affiliate with international organizations of workers and employers. The Committee noted that there is no provision in the law regarding the right of workers’ and employers’ organizations to join federations or confederations of their own choice and to affiliate with international organizations of workers and employers. The Committee requests that the Government indicate in its next report the provisions which guarantee the right of workers’ and employers’ organizations to join federations and confederations of their own choice and to affiliate with international organizations of workers and employers.

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

The Committee takes note of the information contained in the Government’s first report. It also notes that legislative reform is under way with ILO technical assistance. The Committee trusts that the legislative reform will be concluded soon and requests that the Government keep it informed of progress made in this respect. In this context, the Committee would like to raise the following discrepancies between the national legislation and the Convention which it hopes will be addressed in the framework of the legislative reform.

A. Article 2 of the Convention. 1. Right of employers and workers to establish organizations of their own choosing. The Committee notes that section 13(1) of the Constitution guarantees to all persons the freedom to form and belong to associations for the advancement or protection of their interests. Moreover, Section 21 of the Trade Union and Employer Organizations Act, which is entitled "Freedom of association of workers", indicates inter alia that nothing in that law shall prohibit any worker from being or becoming a trade union member. The Committee notes that there is no comprehensive provision in the law guaranteeing to all workers and employers the right to establish and join organizations of their own choosing. The Committee requests that the Government amend section 21 of the Trade Union and Employer Organizations Act with a view to adopting such a provision.

2. Minimum membership requirement. The Committee notes that section 7 of the Trade Unions and Employer Organizations Act sets a minimum membership requirement of seven members for the registration of employers’ organizations. The Committee considers that this requirement might be excessively high and discourage the establishment of employers’ organizations. The Committee requests that the Government amend section 7 of the Trade Unions and Employer Organizations Act so as to lower the minimum membership requirement for the registration of an employers’ organization.

3. Right of public employees to establish and join organizations of their own choosing. The Committee notes that section L.1 of the National Conditions of Service provides that all employees are free to join a "recognised" staff association or union. Given that there is no provision in the law relating to the recognition of trade unions, the Committee requests that the Government amend Section L.1 by substituting "registered" for "recognized".

B. Article 3.  Right of employers’ and workers’ organizations to draw up their constitutions and rules, elect their representatives in full freedom, organize their administration and activities and formulate their programmes. 1. Right to elect representatives freely. The Committee notes that there is no provision in the law regarding the right of workers and employers to elect their representatives. The Committee requests that the Government indicate the legislative provisions which guarantee to members of employers’ and workers’ organizations, the right to elect their representatives in full freedom.

2. Strike ballots. The Committee notes that section 39 of the Industrial Relations Code Act 1998, requires a two-thirds majority of those eligible to vote in order to reach a decision to strike. The Committee considers that although the requirement of a strike ballot does not in principle raise problems of compatibility with the Convention, the ballot method, the quorum and the majority required should not be such that the exercise of the right to strike becomes very difficult or even impossible in practice (see General Survey, op. cit., paragraph 170). The Committee therefore requests that the Government indicate in its next report the measures taken to amend section 39 of the Industrial Relations Code so as to ensure that, when a decision to strike is taken by ballot, account is taken only of the votes cast, and that the required majority is lowered.

3. Compulsory arbitration. The Committee notes that sections 8(1)(d) and 12 of the Industrial Relations Code enable the Registrar to refer any trade dispute to arbitration for a final and binding decision. Section 27 renders any strike unlawful when a trade dispute procedure prescribed in the Act for the settlement of trade disputes has not been exhausted while section 28 further enables the Minister to declare strikes unlawful where an agreement or an award has been made settling the dispute. The Committee recalls that such a system makes it possible to prohibit virtually all strikes or to end them quickly thereby seriously limiting the means available to trade unions to further and defend the interests of their members as well as their right to organize their activities and formulate their programmes (see General Survey, op. cit., paragraph 153). Compulsory arbitration to end a trade dispute is acceptable only: (i) if it is at the request of both parties to the dispute; (ii) in the case of disputes in the public service involving public servants exercising authority in the name of the State; or (iii) in essential services in the strict sense of the term, namely those services whose interruption would endanger the life, personal safety or health of the whole or part of the population. The Committee therefore requests that the Government indicate in its next report the measures taken to amend sections 8(1)(d), 12, 27 and 28 of the Industrial Relations Code so as to limit the possibility of prohibiting strikes and impose compulsory arbitration only to those cases which would be in conformity with the Convention.

4. Essential services. The Committee notes that section 37 of the Industrial Relations Code has the effect of prohibiting industrial action and imposing heavy penalties including imprisonment  in cases where a strike might "expose valuable property to the risk of destruction". The Committee recalls from above that restrictions on the right to strike are admissible under the Convention only in essential services in the strict sense of the term, public servants exercising authority in the name of the State and in case of an acute national crisis. Any other restriction or prohibition which falls outside these confines is contrary to Article 3 of the Convention. Sanctions for strike action should be possible only where the prohibitions in question are in conformity with the principles of freedom of association. The Committee therefore requests that the Government indicate in its next report the measures taken so as to lift section 37 of the Industrial Relations Code.

5. Sanctions for strike action. The Committee notes that according to section 30 of the Industrial Relations Code, sanctions against unlawful strikes include imprisonment of up to one year and heavy fines. Moreover, under section 37 of the Industrial Relations Code, penalties of imprisonment for strikes in essential services can be imposed for a term of up to 18 months as well as heavy fines. The Committee once again recalls that sanctions for strike action should be possible only where the prohibitions in question are in conformity with the principles of freedom of association. Even in such cases, the existence of heavy sanctions for strike action may create more problems than they solve, since the application of disproportionate penal sanctions does not favour the development of harmonious and stable industrial relations. In particular with regard to sanctions against strikes in essential services, the Committee emphasizes that such sanctions should not be disproportionate to the seriousness of the violations and that in any case, peaceful strikes should not be sanctioned by imprisonment. The Committee requests that the Government indicate in its next report the measures taken to ensure that any prison sanctions are proportional to the seriousness of the violations and that in any case, imprisonment may not be imposed in case of peaceful strikes.

C. Articles 5 and 6. Right to establish and join federations and confederations and to affiliate with international organizations of workers and employers. The Committee notes that there is no provision in the law regarding the right of workers’ and employers’ organizations to join federations or confederations of their own choice and to affiliate with international organizations of workers and employers. The Committee requests that the Government indicate in its next report the provisions which guarantee the right of workers’ and employers’ organizations to join federations and confederations of their own choice and to affiliate with international organizations of workers and employers.

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