Informe provisional - Informe núm. 118, 1970

Caso núm. 559 (Trinidad y Tabago) - Fecha de presentación de la queja:: 26-JUN-68 - Cerrado

1. 111. The complaint is contained in a communication sent to the ILO by the Trinidad and Tobago Labour Congress on 26 June 1968. In another communication dated 6 August 1968 the complaining organisation submitted additional information. The text of each of these communications was transmitted to the Government, which sent its observations in a letter dated 14 April 1969. At its meeting in May 1969 the Committee requested the Director-General to obtain certain further information on specific aspects of the case. The Government has replied to the Committee's request in a letter dated 16 February 1970.
2. 112. Trinidad and Tobago has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. A. The complainants' allegations

1. 113. The complaining organisation requested the Committee on Freedom of Association to examine the allegations respecting infringements of freedom of association contained in the detailed observations that the organisation had made on the reports submitted by the Government, under article 22 of the Constitution of the ILO, concerning the application in Trinidad and Tobago of the Conventions mentioned in paragraph 112 above. In this connection it should be pointed out that the Committee of Experts on the Application of Conventions and Recommendations, in its report to the 53rd (1969) Session of the Conference, stated in an observation that, having noted both the information supplied by the Government and the comments of the Trinidad and Tobago Labour Congress, it had decided to ask the Government for certain additional information.
2. 114. In the text of the observations sent to the Committee by the Trinidad and Tobago Labour Congress there are criticisms of specific provisions of the Industrial Stabilisation Act, the Civil Service Act, the Prison Service Act, the Fire Service Act and the Education Act. The Government has supplied detailed observations on all the points raised in the complaint, which are briefly examined below.
   • Allegations concerning the Industrial Stabilisation Act of 1965 (as Amended in 1967)
     • (a) Approval of Collective Agreements
   • 115. It is alleged that the Act establishes the requirement that collective agreements shall be approved by the Minister before they can come into force (sections 18 and 19) and that the Industrial Court is empowered to interfere in collective agreements freely entered into by both parties (sections 22 to 24).
3. 116. The Government states that before the enacting of the Industrial Stabilisation Act provision for the registration of collective agreements giving them the force of law did not exist. The provision of section 18 (2) requiring the specification of a term agreed by the parties of not less than three years does not, in the opinion of the Government, infringe freedom of association or the right of workers to bargain collectively. The Government points out that in accordance with section 19 (3) a copy of a proposed agreement must be submitted to the Minister to establish whether it is in harmony with the consideration set forth in section 9 (2) and the provision on the minimum term of validity. It may be contended, the Government continues, that in submitting an agreement to the Court for registration the Minister has the power to raise objections, but under section 23 the Court is required to hear the parties and may register the agreement without modification, introduce, with the agreement of the parties, the modifications it considers necessary, or refuse to register the agreement sending it back to the parties for further negotiation.
4. 117. It can be seen, states the Government, that agreements are not in fact subject to approval by the Minister, whose objections relating to the considerations set out in section 9 (2) or the requirement of a specified term of validity must be submitted to the Court.
5. 118. The Committee observes that under section 19 (3), if the Minister is satisfied that the considerations in question are respected, he shall notify his approval to the parties. If he is not satisfied, the parties may or may not modify the agreement before submitting it in its definitive form to the Minister with a request for its registration, but the Minister may raise objections in transmitting it to the Court for the purposes already mentioned. Section 24 provides that an industrial agreement shall have effect only if it is registered by the Court in accordance with the Act.
6. 119. The eight considerations that the Court must take into account, in accordance with the above-mentioned section 9 (2), include the following: the necessity to maintain a high level of domestic capital accumulation with a view to increasing the rate of economic growth and to providing greater employment opportunities; the necessity to increase production and to ensure to workers a fair share of increases in productivity in undertakings; the necessity for the establishment and maintenance of reasonable differentials in rewards between different categories of skills; the need to ensure the continued ability of the Government of Trinidad and Tobago to finance development programmes in the public sector. As can be seen from this section, the " considerations " are corollaries of the principle set forth in the national Constitution that the operation of the economic system should result in the material resources of the community being so distributed as to subserve the common good.
7. 120. The Committee has pointed out in previous cases the importance of recognising the right of trade unions to bargain freely with employers in respect of conditions of work, which is an essential element in freedom of association, and of recognising the principle that the public authorities should refrain from any interference that might restrict the right of trade unions to seek through collective bargaining or other lawful means to improve the living and working conditions of those whom they represent or impede the lawful exercise of this right. Furthermore, Article 4 of Convention No. 98, which has been ratified by Trinidad and Tobago, provides that " measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilisation of machinery for voluntary negotiation between employers or employers' organisations and workers' organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements. "
8. 121. In certain cases the Committee has had to express its opinion on questions similar to those raised in the present case, while examining legislation that prescribes approval of collective agreements by the authorities before they can come into force, the authorities being granted the power to modify the agreements or to withhold approval for reasons of economic policy. The Committee has considered that provisions of this kind are contrary to the principle of voluntary negotiation laid down by Convention No. 98.
9. 122. The Committee has considered that its objections to the requirement that prior approval of collective agreements be obtained from the government do not signify that ways could not be found of persuading the parties to collective bargaining to have regard voluntarily in their negotiations to considerations relating to the economic or social policy of the government and the safeguarding of the general interest. Thus, instead of making the validity of collective agreements subject to governmental approval, it might be provided that every collective agreement filed with the Ministry of Labour should normally come into force a reasonable length of time after having been filed; if the public authority considered that the terms of the proposed agreement were manifestly in conflict with the objects of the economic policy recognised as being desirable in the general interest, the case could be submitted for advice and recommendation to an appropriate consultative body, on which the workers' and employers' organisations were represented, and this body could indicate to the parties the considerations of general interest that might call for further examination by them of the agreements in question, provided always, however, that the final decision in the matter rested with the parties to the agreement.
10. 123. In the present case the legislative text in question is an Act of a general nature, whose provisions refer to the procedure for obtaining the registration and effective operation of collective agreements and lay down what amounts to a system requiring the prior approval of these agreements in respect of their substantive provisions, either by the Minister or by the Court. This approval depends on an examination carried out in the light of considerations set out in the Act that appear to allow the Court, in the last resort, and also the Minister, a wide margin of judgment. In this respect it would be useful to know as a supplementary piece of information, to what extent and in what way the powers of the Minister and Court are employed in practice.
11. 124. Accordingly, the Committee recommends the Governing Body:
    • (a) to draw the attention of the Government to the importance it has always attached to the standards and principles mentioned in paragraph 120 above;
    • (b) to request the Government to be good enough to supply information on the number and relative importance of collective agreements whose registration had been refused under the Act and on the precise grounds for refusal.
    • (b) Effects of the Recognition of a Trade Union for Purposes of Collective Bargaining
12. 125. The complainants allege that under the Act a union which has been recognised for collective bargaining purposes maintains its status without regard to its representativeness (section 3A (2) and (3) of the Act). In their view, since collective agreements are binding, there is no good reason for associating the recognition of a trade union with the operation of a collective agreement. They further contend that the union recognised by the employer has the right to submit a dispute to the Minister (section 16 (1) (b) of the Act), and that the other trade unions lack this right and, accordingly, the opportunity of defending the interests of any of their members even in such cases as those of wrongful dismissal.
13. 126. The Government points out in its reply that the purpose of the Act is to ensure that a union which is representative of the majority of the workers in an appropriate bargaining unit shall represent the workers in respect of collective bargaining and other matters for a period set out in the agreement, after which fresh claims for recognition may be made by other unions. It adds that the Act and the regulations issued thereunder establish a clear criterion for the obtaining of recognition and for appeals to the Court against the decision taken by the Minister. It further points out that the Act as it was promulgated in 1965 granted the trade unions that were recognised for collective bargaining and those that were not recognised the same entitlement to report disputes to the Minister. Representations were made to the effect that the provision militated against the position of recognised unions and caused considerable friction among trade unions. Since the amendment of the legal text in 1967, the objection has been made that a minority union can no longer submit disputes on individual matters concerning its members. The Government states that the provision in question does seem to be too restrictive and that in a draft amendment under current consideration provision is made to allow minority unions, too, to conduct " individual " disputes where their members authorise them to act on their behalf. The proposed amendments have been submitted to workers' and employers' organisations for study and comment.
14. 127. It should be pointed out that the complainants refer in their complaint to the fact that a union which has been recognised maintains its status during the period that the collective agreement remains in force, even though it may have ceased to be the most representative union. In this connection a reading of section 18 (2) of the Act shows the general principle that the minimum duration of collective agreements is three years. In accordance with section 3A (3), where a collective agreement is in force and registered, another union may make a claim for recognition as a bargaining agent, but only when the agreement is near expiry, that is to say not earlier than four months or later than three months before it lapses.
15. 128. In previous cases the Committee has pointed out that, where legislation draws a distinction between the most representative organisations and other organisations for such purposes as collective bargaining and consultation with the authorities, this distinction should not have the effect of depriving trade union organisations not recognised as being among the most representative of the essential means whereby they may defend the occupational interests of their members, organise their administration and activities and formulate their programmes. Article 3 of Convention No. 87, which has been ratified by Trinidad and Tobago, provides that workers' and employers' organisations shall have the right to organise their administration and activities and to formulate their programmes, and Article 8 (2) of the same Convention provides that the law of the land shall not be such as to impair, nor shall it be so applied as to impair, the guarantees provided for by Article 3.
16. 129. During an earlier examination of allegations bearing some resemblance to those of the present case, the Committee pointed out that, while there was not necessarily any incompatibility with Article 3 of Convention No. 87 in a provision for the certification of the most representative union in a given unit as the exclusive bargaining agent for that unit, this was the case only if a number of safeguards were provided. The Committee observed that in several countries in which the procedure of certifying unions as exclusive bargaining agents had been established, it had been regarded as essential that such safeguards should include the following:
    • (a) certification to be made by an independent body;
    • (b) the representative organisation to be chosen by a majority vote of the employees in the unit concerned;
    • (c) the right of an organisation which failed to secure a sufficiently large number of votes to ask for a new election after a stipulated period;
    • (d) the right of an organisation other than the certificated organisations to demand a new election after a fixed period, often twelve months, had elapsed since the previous election.
17. 130. In the present case the Committee observes that the legislation in its present form grants to unions representative of the majority of the workers not only the exclusive right to bargain with the respective employers but also the exclusive right to deal with every other labour matter on behalf of the workers. In such a situation the minority unions are unable to defend the rights and interests of their own members, and this may even have an indirect effect on the right that workers have, in accordance with Article 2 of Convention No. 87, to establish and join organisations of their own choosing.
18. 131. In these circumstances the Committee considers that the amendment that the Government stated to be now under study would reduce the present distinction between unions that are recognised and those that are not by granting the latter the right to represent their members in individual disputes. It might be pointed out in this connection that at its meeting in May 1969 the Committee requested the Government to provide information on the draft legislation granting certain rights to minority trade unions. In its communication of 16 February 1970 the Government forwards the text of the draft amendments to the relevant sections of the Industrial Stabilisation Act which grant minority unions the right to represent their members in cases of individual disputes with employers.
19. 132. With regard to the period during which the union preserves the status of bargaining agent in accordance with the Act at present in force, the Committee considers that to preserve too long the exclusiveness of a union which has lost its representative status might create difficulties.
20. 133. In view of the foregoing considerations the Committee recommends the Governing Body:
    • (a) to bring to the attention of the Government the principle according to which, where legislation makes a distinction between the most representative organisations and other organisations for such purposes as collective bargaining, this distinction should not have the effect of depriving trade unions which have not been recognised as the most representative of the essential means of defending the occupational interests of their members;
    • (b) to ask the Government to be good enough to keep it informed about any changes which might be made in the draft legislation granting certain rights to the minority unions;
    • (c) to suggest to the Government the desirability of reconsidering the provision respecting the established period during which the status of the union recognised as exclusive bargaining agent cannot be challenged, with a view to reducing it.
    • (c) Procedure for Settling Trade Disputes and Provisions respecting Strikes
21. 134. The complainants allege that the Act prohibits strikes in essential services (section 36) and that there are no adequate provisions for settling collective disputes. They contend that the Minister is not legally obliged to refer any dispute to the Court for settlement. Moreover, they point out that the decisions of the Court concerning disputes are final and binding, that the members of the Court are appointed by the Governor-General, and neither the trade unions nor the employers have any say in the appointment.
22. 135. The Government's argument includes the following considerations. The Industrial Stabilisation Act provides full machinery for conciliation in issues relating to essential services, which can be reported to the Minister as disputes. Section 16A of the Act provides for conciliation and, if conciliation breaks down, the referring of the matter to the Court. Notwithstanding the use of the word " may " (applying to the Minister) in section 16A (5), it is the practice to refer to the Court all disputes in essential services that have not been settled through conciliation. The parties, says the Government, have the fullest opportunity at all stages of presenting and defending their contentions. Section 13 (1) (c) authorises the Court to dismiss a matter or part thereof if it finds, on the facts and contentions presented that the matter is of a trivial nature. Such authority, the Government goes on, is inherent in any arbitral body. The complainants, it adds, will not be able to show that since the promulgation of the Act the Court has considered any matter trivial.
23. 136. With regard to the Industrial Court, the Government points out that it is a superior Court, presided over by a Judge of the Supreme Court, who is designated by the Chief Justice after consultation with the Prime Minister, the other members being appointed by the Governor-General. The Government states that it does not understand in what manner appointments to the Court can be said to impair or hinder the application of Convention No. 87 or Convention No. 98, neither of which requires trade unions to be consulted in connection with such appointments.
24. 137. The Committee considers that this aspect of the complaint does not pose any question relating to the exercise of trade union rights.
25. 138. With respect to the problem concerning strikes and the procedure for the settlement of collective disputes, the Committee observes in the first place that it has always been guided by the principle that allegations relating to the right to strike are within its competence in so far as they affect the exercise of trade union rights', and that it has pointed out on various occasions that the right of workers and their organisations to strike as a legitimate mean of defending their occupational interests is generally recognised.
26. 139. The Committee has stated that in exercising the right to strike, workers and their organisations must have due regard to temporary restrictions placed thereon, e.g. cessation of strikes during conciliation and arbitration proceedings in which the parties can take part at every stage. Nevertheless, the Committee has stressed that when restrictions of this kind are placed on the exercise of the right to strike, the ensuing conciliation and arbitration proceedings should be " adequate, impartial and speedy ".
27. 140. The Committee has emphasised the importance that it attaches, where strikes are prohibited or are subject to restrictions in essential services, to the establishment of adequate safeguards to protect the interests of the workers who are thus deprived of an essential means of defending their occupational interests, and has pointed out that such restrictions should be accompanied by adequate, impartial and speedy conciliation and arbitration procedures in which the parties concerned may participate at every stage.
28. 141. When legislation lays down directly or indirectly an absolute prohibition on strikes, the Committee, like the Committee of Experts on the Application of Conventions and Recommendations, has expressed the view that such a prohibition may sometimes constitute a considerable restriction of the potential activities of trade unions. Such a restriction is not in conformity with the principles generally recognised in freedom of association.
29. 142. The text of the Act (section 36) shows that lockouts and strikes are prohibited in essential services. " Essential services " are taken to mean the services set out in the Schedule to the Act (electricity, fire, health, hospital, sanitary and water services). Except for this prohibition, collective disputes arising in these services are subject to the procedure established by the Act in respect of other activities.
30. 143. This procedure is laid down in sections 16, 16A, 16B and 17 of the Act, which include the following provisions. A dispute may not be reported to the Minister if more than six months have elapsed since the issue giving rise to it first arose, and the report must be made in writing. The Minister shall submit the affair for settlement by the means provided for in any agreement existing between the parties if, in his opinion, the means established by the agreement are adequate; if there is a failure to reach a settlement, the parties shall notify the Minister of this failure. If it appears to him that the existing means for settling the dispute have not been exhausted, he shall refer the matter back to the parties for further consideration. If, on the other hand, it appears to the Minister that no machinery binding on the parties exists for settlement of the dispute or if the parties have notified him of a failure to reach a settlement, the Minister may, within forty-two days, take steps to promote a settlement of the dispute by conciliation. Where the steps taken by the Minister have not resulted in a settlement, he may, within fourteen days, refer the dispute to the Court (section 16A (5)).
31. 144. Section 34 shows that a strike is illegal unless the Minister, after having been notified of a failure to reach a settlement, has not referred the dispute to the Court within twenty-eight days of the receipt of the notification. The decision to strike must be communicated to the Minister fourteen days in advance.
32. 145. In accordance with section 16B, where the intervention of the Minister has resulted in a settlement, the Minister shall consider the terms of the settlement and refer it to the Court for confirmation with such recommendations as he may think necessary. The Court shall deal with it as though it were a collective agreement, and when it has been confirmed by the Court it shall have the same effect as a registered collective agreement.
33. 146. In view of the considerable restriction that this procedure appears to place on strikes, because of the length of the period (during which it is impossible to go on strike) that precedes the time when the Minister may decide to submit a dispute to the Court and because of the fact that the exercise of the right to strike depends in the last resort on the relevant decision of the Minister, the Committee at its meeting in May 1969 requested the Government to be good enough to state:
    • (a) what period normally elapses in practice before the Minister may decide to submit a dispute to the Court and what regulations there are that may be uniformly applied in conciliation;
    • (b) the number of unsettled disputes submitted to the Court, and the number of disputes in which this procedure has not been followed and the lawful exercise of the right to strike has been authorised.
34. 147. In its communication of 16 February 1970 the Government states that there is a total period of fifty-six days before a dispute may be submitted to the Court and, in practice, this is the period of time which normally elapses before the Minister takes a decision to this effect. As regards conciliation, there are no other provisions than those examined above. However, since the procedures set out above have always been followed there has never been any need for strike action.
35. 148. It would appear from this additional information that any dispute not settled by agreement between the parties or through conciliation is submitted to the Labour Court for its decision. Thus, since the Minister always exercises his prerogative in cases of this kind, all collective disputes in essential services, where there is a prohibition on strikes, are in practice settled by arbitration; for the same reason workers who do not belong to these services appear to be deprived of the possibility of having recourse to strike action. This is equivalent to an over-all restriction on the right of such workers to strike, which is incompatible with what has been stated in paragraph 141 above and with the principle set forth in Article 3 of Convention No. 87, ratified by Trinidad and Tobago, according to which workers' organisations shall have the right to formulate their programmes without interference on the part of the public authorities which may restrict this right or impede the lawful exercise thereof.
36. 149. In these circumstances the Committee recommends the Governing Body:
    • (a) to decide that the allegation relating to the way in which judges are appointed to the Labour Court calls for no further examination;
    • (b) since allegations concerning the right to strike are not outside the competence of the Committee in so far as they affect the exercise of trade union rights, to emphasise the importance which the Governing Body has always attached to the principle that the right to strike is normally recognised in respect of workers and their organisations as a legitimate means of defending their occupational interests;
    • (c) to emphasise the importance that it has always attached to the principle that when strikes are subjected to temporary restrictions, or when they are prohibited in the essential services, the restrictions should be accompanied by conciliation and arbitration procedures which are adequate, impartial and speedy;
    • (d) to note, on the basis of the information supplied by the Government, that in practice all disputes not settled by the parties or by conciliation, whether in the essential services or in other sectors, are submitted after a period of fifty-six days to the Labour Court for decision in accordance with the procedure provided for under the Industrial Stabilisation Act;
    • (e) taking into account the fact that under such conditions workers not employed in essential services appear to be deprived of the possibility of resorting to strike action, to bring to the Government's attention the fact that, where legislation directly or indirectly places an absolute prohibition on strikes, such prohibition might constitute an important limitation on the courses of action open to trade union organisations a situation which would be incompatible with generally recognised principles of freedom of association;
    • (f) to draw the Government's attention to the desirability of examining the measures necessary to bring the national legislation and practice into full conformity with the aforesaid principles and to request it to be good enough to keep the Governing Body informed of any steps taken in this direction.
      • Allegations concerning the Civil Service Act, the Fire Service Act, the Prison Service Act and the Education Service Act
    • (a) Restrictions on the Right of Civil Servants to Form Associations
37. 150. The Trinidad and Tobago Labour Congress states that certain provisions of the Civil Service Act, 1965-and some corresponding provisions of the Acts on the Fire Service, the Prison Service and the Education Service - appear to infringe the standards of Convention No. 87. The complainants point out, for example, that under section 24 of the Civil Service Act, civil servants cannot exercise their right to join an association of their own choosing and that an existing organisation is given almost a monopoly. Under section 27 and the Fourth Schedule to the Act, the Rules of an association must prohibit the admission to membership of a civil servant who is a member of an appropriate recognised association.
38. 151. The Government points out in one part of its observations that among the purposes of the Civil Service Act, 1965, is that of providing for " the establishment of procedures for negotiation and consultation between the Government and members of the Civil Service for the settlement of disputes, and for other matters concerning the relationship between the Government and the Civil Service ". After listing the six classes into which the Civil Service is divided, the Government states that an appropriate recognised association may represent any class or classes of civil servants, provided that such class or classes are not already represented by another appropriate recognised association. The purpose of this, the Government indicates, is to avoid duality of membership, which hinders associations from adequately performing their representative functions in collective bargaining. Nothing prevents civil servants from freely relinquishing membership of one association and joining another. The Government states in another part of its observations that when the regulations to govern the conditions and procedure for acquiring recognition are being drafted it will consult the recognised associations.
39. 152. A reading of section 24 of the Act appears to show that any existing association may continue to represent any class or classes of civil servants and that, subject to the provisions of the Act, it " shall be recognised by the Minister of Finance " as the appropriate association for the purpose of consultation and negotiation in respect of any of the matters specified in section 14 (classification of offices, grievances, remuneration and terms and conditions of employment). On the other hand, any association existing when the Act was promulgated or subsequently formed which wishes to represent any class or classes of civil servants already represented by a recognised association shall not be able to do so and shall not admit to membership civil servants who are members of any such recognised association.
40. 153. The Committee observes that, in accordance with these provisions, whenever a category of civil servants is already represented by an association for such purposes, it is still possible for such civil servants to form other associations or to join other associations. However, these new associations would not have any right to represent their members for the simple reason that there already exists an association recognised to represent all the civil servants in this category.
41. 154. The Committee considers that the legislation in this case has similar effects to legislation that it had to examine on another occasion, when it referred to an opinion of the Committee of Experts on the Application of Conventions and Recommendations in accordance with which a provision entitling the Registrar to refuse registration to a trade union when he was satisfied that a trade union already registered was sufficiently representative of the trade or occupation concerned meant that in certain cases wage earners might be denied the right to associate. The principle that workers shall have the right to establish and join organisations of their own choosing is incorporated in Article 2 of Convention No. 87.
42. 155. The Committee therefore considers that in order to bring the legislation into harmony with international standards, if the system of the representation of a whole class of civil servants by a single association for purposes of consultation and bargaining is maintained, it would be necessary to establish objective criteria by which to determine the most representative associations for carrying out these functions on the basis of what has been set out in paragraph 129 above. Furthermore, it would also be necessary to lay down clearly that civil servants should be able to establish and join associations of their own choosing, and that these associations, although they would not have the character of being the most representative, would be authorised to act in defence of the rights and interests of their own members.
43. 156. The Committee recommends the Governing Body to draw the attention of the Government to the conclusions contained in the previous paragraph.
    • (b) Prohibition of Associations of Civil Servants from Being Registered as Trade Unions
44. 157. The complainants allege that section 24 (5) of the Civil Service Act prohibits associations of civil servants from being registered as trade unions and that the Education Act, the Prison Service Act and the Fire Service Act contain similar provisions.
45. 158. The Government explains that only " new " associations lack the right, under the provision in question, to be registered as trade unions. The Civil Service Association and the Trinidad and Tobago Teachers' Union have been and continue to be registered as trade unions. In practice, the Government goes on, other associations that may be formed in accordance with the Act can nevertheless represent their members and defend their interests, even though they are not registered as trade unions.
46. 159. Since the effects of the distinction established by the legislation between the two types of civil servants' associations was not very clear, the Committee at its meeting in May 1969 requested the Government to be good enough to make clear what these effects were.
47. 160. In this connection the Government states in substance that " existing association " means the Public Servants' Association and any other union recognised as a bargaining agent for any category or categories of civil servants before the entry into force of the law in question (i.e. before 22 January 1966). The Government states that for the purposes of consultation and collective bargaining provided for in section 14 of the Act, no distinction is made between " existing associations ", which are registered as trade unions, and " new associations " which cannot be so registered.
48. 161. The Committee assumes that such equality between associations only applies to those - existing or new-which have been " recognised " by the Minister of Finance (see paragraph 152 above) and that it relates to the capacity to negotiate or be consulted on matters affecting civil servants. Nonetheless, the Committee would like to know whether or not the distinction which the law makes between associations registered and not registered as unions implies that there is a difference between these two types of association as far as concerns the exercise of the rights and guarantees accorded to workers' organisations and, in particular, those set forth in Convention No. 87 (for example, the right to draw up their Constitutions and rules, to elect their representatives in full freedom, to organise their administration and activities and to formulate their programmes; the guarantee in virtue of which such organisations shall not be liable to be dissolved or suspended by administrative authority; the right to establish and join federations and Confederations; the guarantee whereby the acquisition of legal personality by such organisations shall not be subject to conditions of such a character as to restrict the application of the provisions of Articles 2 to 4 of the Convention). The Committee would like to point out that all the organisations of civil servants to which the complaint refers should enjoy the said rights and guarantees in common with the other organisations.
49. 162. In these circumstances the Committee recommends the Governing Body to request the Government to be good enough to clarify the points raised in the preceding paragraph.
    • (c) Trade Disputes Procedure
50. 163. The complainants explain that under section 37 (1) of the Industrial Stabilisation Act civil servants are prohibited from striking. Referring to the Public Service Commission Regulations, 1966, they assert that, despite the prohibition against striking, adequate provision is not made for the settlement of disputes arising out of dismissal, that the Review Board is appointed by the Commission and that the Commission reserves the right to accept or reject its findings.
51. 164. In another part of their allegations the complainants state that under section 17 of the Civil Service Act a matter may become the subject of dispute (and therefore may ultimately come before the Special Tribunal) only where the Personnel Department consults and negotiates with representatives of the recognised association. The Government may therefore effectively prevent a matter from being settled by the Tribunal merely by refusing to discuss it with the recognised association. According to the complainants, neither the refusal of the Government to consult or negotiate nor an unreasonable delay in consulting or negotiating constitutes a dispute under the Act. The Government is stated to have resorted already to this measure in respect of at least four major questions of difference with the recognised association, the Civil Service Association.
52. 165. The Government points out in one part of its observations that the terms and conditions of employment of public officers are laid down by statute (the Constitution, the Civil Service Act, the Public Service Commission Regulations and the Civil Service Regulations). The principle has been recognised, says the Government, that " it is normal to withhold the right to strike from civil servants enjoying statutory terms and conditions of employment." The Constitution vests in the Public Service Commission the authority to appoint civil servants and exercise disciplinary control and empowers it to make regulations for the review of its findings in disciplinary cases.
53. 166. The Government states that no provision of Convention No. 98 appears to require consultation with representative workers' organisations on appointments such as those made by the Commission in respect of the Boards of Review. Moreover, the Government continues, it is to be observed that this Convention does not apply to civil servants engaged in the administration of the State.
54. 167. With regard to consultations and negotiations with the recognised associations, the Government reproduces the text of sections 16 to 18 of the Civil Service Act. Section 16 provides that the Personnel Department shall from time to time consult with representatives of such associations with respect to the matters specified in section 14, at the request of such representatives or whenever in the opinion of the Minister of Finance such consultation is necessary or desirable. Under section 17, if the Department and the association are unable to reach agreement on any matter within twenty-one days, either one of the parties shall report the disagreement to the Minister and on the basis of the communication a dispute shall be deemed to exist. Section 18 refers to cases where the Department does not consult with the association before making proposals and provides that the proposals made shall be submitted to the association for consideration and agreement. Where agreement has not been reached the report to the Minister is governed by provisions similar to those of section 17.
55. 168. The Government states that it is unaware that four disputes in which the Civil Service Association has been involved have not been referred to the Tribunal because the Government has refused to discuss them with the Association and adds that all the matters raised by the Association have been fully dealt with, those not settled having been referred to the Special Tribunal. With regard to the impartiality of the members of this Tribunal, the Government states that its President and members are accorded the same independent status as that enjoyed by the judiciary of the High Court under the Constitution of Trinidad and Tobago.
56. 169. The Committee notes the information and observations of the Government concerning the procedure for consultation and negotiation between the Government and the recognised association in connection with the matters specified in section 14 of the Act (namely the classification of offices, grievances, remuneration and terms and conditions of employment).
57. 170. In the same connection section 20 of the Act shows that where a dispute is deemed to exist under section 17 or 18, the Minister shall refer it to the Special Tribunal within twenty-one days and that, if he fails to do so, the recognised association which is a party to the dispute may do so.
58. 171. The legislative provisions mentioned by the Government and the information which it supplies on their practical application thus appear to contradict the allegations so far as they refer to the matters specified in section 14 of the Act. The complainants refer to four cases in which the association concerned was prevented from taking action before the Tribunal, but they do not supply details and the Government denies having any knowledge of these cases.
59. 172. The complainants state that adequate provision is not made for the settlement of disputes arising out of dismissals. On the other hand, Regulation No. 132 of 1966 respecting the Public Service Commission includes provisions concerning dismissal and other disciplinary measures and the procedure for their revision. The subject of the complaint is thus a general regulation applying to all civil servants. In the past the Committee has considered that allegations having some similarity to that being examined at present appear to fall outside its competence; in one case the Committee stated that the question of breaking contracts of employment by dismissal was not one on which it was called upon to pronounce, except in cases in which the circumstances of dismissal implied anti-union discrimination.
60. 173. For the reasons stated in paragraphs 171 and 172, the Committee considers that there would be no point in continuing the examination of the allegations summarised in paragraphs 163 and 164 above and recommends the Governing Body so to decide.
    • (d) Interference by the Registrar in the Affairs of the Association of Prison Officers
61. 174. It is alleged that section 29 of the Prison Service Act of 1965 infringes the provisions of Convention No. 87 by giving the Registrar the power to interfere unduly in the affairs of an association and allows the efforts of the majority to be frustrated by a disgruntled minority. The complainants consider that if the Registrar is to have powers to interfere in such affairs, these powers should be limited to questions of procedure so far as the rules of the association are concerned.
62. 175. The Government states that under the section referred to the Registrar can take action only when a complaint has been made by not fewer than fifty members. The number of prison officers is at present 379. and in the opinion of the Government a group of fifty does not comprise so small a minority as it has been sought to convey. The matters on which complaints may be made to the Registrar must relate specifically to the rules or business of the association and " the provision is a safeguard for well-being of the association and its members ".
63. 176. The Government adds that the Registrar-General is the Chief Executive Officer of the High Court and functions independently of the administrative authorities. Although the Act does not say so, appeals can be made against his decisions to the High Court.
64. 177. A reading of section 29 of the Prison Service Act shows that the Registrar can receive written complaints " signed by not less than fifty financial members of an appropriate recognised association " respecting the rules or business of the association. The Registrar must investigate the complaint and if, after hearing the authors of the complaint and the association, he considers that the complaint is justified, he may specify the measures which must be taken by the association to remove the causes of the complaint. The recognition granted to the association by the Minister of Finance may be withdrawn if it does not comply.
65. 178. The Committee considers that, so far as provisions of this nature represent outside control, they should be applied only in exceptional cases, when there are serious circumstances justifying this course, since otherwise there would be a risk of limiting the right that workers' organisations have, by virtue of Article 3 of Convention No. 87, to organise their administration and activities without interference by the public authorities which would restrict this right or impede its lawful exercise.
66. 179. Nevertheless, since the Act confers the power to intervene on a judicial official against whose decisions appeal may be made to the Supreme Court, and since a request for intervention must be supported by a considerable part of the occupational category in question, the Committee, subject to what has been said in the preceding paragraph, recommends the Governing Body to decide that this aspect of the case does not call for further examination.

The Committee's recommendations

1. 180. In these circumstances, with respect to the case as a whole, the Committee recommends the Governing Body:
2. (1) in respect of the allegations concerning the Industrial Stabilisation Act of 1965 (as amended in 1967):
   • (a) in connection with the requirement that collective agreements shall be approved:
   • (i) to draw the attention of the Government to the importance that the Governing Body has always attached to recognising the right of trade unions to bargain freely with employers about conditions of work, which is an essential element in freedom of association, and to the principle of voluntary negotiation incorporated in Article 4 of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), which has been ratified by Trinidad and Tobago;
   • (ii) with a view to continuing the examination of this aspect of the case, to request the Government to be good enough to supply information on the number and relative importance of collective agreements whose registration has been refused under the Act and on the precise grounds adduced by the Court for refusal;
   • (b) in connection with the recognition of a trade union for purposes of collective bargaining:
   • (i) to draw the attention of the Government to the principle that, when legislation makes a distinction between the most representative organisations and other organisations for such purposes as collective bargaining, this distinction should not have the effect of depriving trade unions which have not been recognised as the most representative of the essential means for defending the occupational interests of their members;
   • (ii) to request the Government to be good enough to keep it informed of any developments concerning the consideration of the draft legislation granting certain powers to minority unions;
   • (iii) to suggest to the Government the desirability of reconsidering the provision respecting the established period during which the status of the union recognised as exclusive bargaining agent cannot be challenged, with a view to reducing it;
   • c) in connection with the procedure for the settlement of collective disputes and the provisions concerning strikes:
   • (i) to decide that the allegation concerning the method of appointing the members of the Industrial Court does not call for further examination;
   • (ii) since allegations concerning the right to strike are not outside the competence of the Committee in so far as they affect the exercise of trade union rights, to emphasise the importance which the Governing Body has always attached to the principle that the right to strike is normally recognised in respect of workers and their organisations as a legitimate means of defending their occupational interests;
   • (iii) to emphasise the importance which it has always attached to the principle that, when strikes are subjected to temporary restrictions, or when they are prohibited in the essential services, the restrictions should be accompanied by conciliation and arbitration procedures which are adequate, impartial and speedy;
   • (iv) to note, on the basis of the information supplied by the Government, that in practice all disputes not settled by the parties or by conciliation, whether in the essential services or in other sectors, are submitted after a period of fifty-six days to the Labour Court for decision in accordance with the procedure provided for under the Industrial Stabilisation Act;
   • (v) taking into account the fact that under such conditions workers not employed in essential services appear to be deprived of the possibility of resorting to strike action, to bring to the Government's attention the fact that, where legislation directly or indirectly places an absolute prohibition on strikes, such prohibition might constitute an important limitation on the courses of action open to trade union organisations-a situation which would be incompatible with generally recognised principles on freedom of association;
   • (vi) to draw the Government's attention to the desirability of examining the measures necessary to bring the national legislation and practice into full conformity with the aforesaid principles and to request it to be good enough to keep the Governing Body informed of any steps taken in this direction;
3. (2) in respect of the Civil Service Act, 1965, and similar Acts:
   • (a) to decide, for the reasons stated in paragraphs 171 and 172, that there would be no point in continuing the examination of the allegations concerning the procedure for the settlement of disputes;
   • (b) to draw the attention of the Government to the conclusions stated in paragraph 155 on the conditions which must be observed for the recognition of the association authorised to represent a whole class of civil servants and on the right of civil servants to establish and join organisations of their own choosing;
   • (c) as regards the prohibition against the registration of civil servants' associations in the registry of trade unions, to request the Government to be good enough to specify the effects of the distinction between registered associations and associations not registered as trade unions in so far as the rights and guarantees referred to in paragraph 161 are concerned;
   • (d) to draw the attention of the Government to the fact that the provisions concerning the intervention of the Registrar in an association should be applied only in exceptional cases and, subject to this reservation, to decide that the allegations respecting this aspect of the complaint do not call for further examination;
4. (3) to bring the foregoing conclusions to the attention of the Committee of Experts on the Application of Conventions and Recommendations;
5. (4) to take note of this interim report, on the understanding that the Committee will submit a new report when it has received the additional information requested from the Government.