Informe provisional - Informe núm. 383, Octubre 2017

1. 417. The Committee last examined this case at its October 2016 meeting, when it presented an interim report to the Governing Body [see 380th Report, paras 684–696, approved by the Governing Body at its 328th Session (October–November 2016)].
2. 418. The Government sent its observations in a communication dated 8 November 2016.
3. 419. Liberia 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. Previous examination of the case

1. 420. In its previous examination of the case in October 2016, the Committee made the following recommendations [see 380th Report, para. 696]:
   • (a) The Committee regrets that, despite the time that has elapsed since the complaint was last examined in October 2015, the Government has still not replied to the complainant’s allegations, despite having been invited on two occasions to do so, including by means of an urgent appeal [see 378th Report, para. 9]. The Committee urges the Government to provide its observations on the complainant’s allegations without further delay. It urges the Government to be more cooperative in the future.
   • (b) The Committee requests the Government to immediately conduct an independent inquiry into the complainant’s allegations with regard to the unilateral cancellation of the CBA, and the employer’s refusal to comply with the obligations established therein, and if these serious allegations were proved true, to take immediate measures to ensure that the employer abides by the commitments it has freely assumed, including deduction and payment of union dues in accordance with article 20 of the CBA and keep it informed of developments.
   • (c) Expressing its concern at the employer’s alleged statements with regard to the remittance of union dues that would appear to undermine a CBA freely entered into, and at the impact that such statements might have on the exercise of trade union rights at the RIA, the Committee requests the Government to reply in full to these allegations.
   • (d) The Committee requests the Government to conduct an immediate inquiry into the grounds for Mr Weh and Mr Garniah’s dismissal, and should it appear that they have been dismissed due to their trade union activities, including for actions in conformity with the CBA, which the employer is said to have unilaterally annulled, to ensure that they are reinstated in their positions without loss of pay, or, if this is not possible, to provide adequate compensation. It requests the Government to keep it informed of developments.
   • (e) The Committee requests the Government to solicit information from the employers’ organizations concerned, in order to have at its disposal their views as well as those of the enterprise concerned on the questions at issue.
   • (f) In more general terms, the Committee requests the Government to take the necessary measures as a matter of urgency to ensure full compliance with the freely concluded collective agreement and to ensure that the RIAWU can continue to fulfil its functions in representing the workers and defend their occupational interests without fear of intimidation or reprisal and to keep it informed of developments.
   • (g) Noting with concern that the complainant feels it is being targeted by the Ministry of Labour for its action before the ILO, the Committee emphasizes that workers’ and employers’ organizations should not be subject to retaliatory measures for having lodged a complaint with the Committee on Freedom of Association, and requests the Committee’s Chairperson to meet with a representative of the Government of Liberia in order to express its deep concern over this allegation and the absence of cooperation with the Committee’s procedures. It urges the Government to reply to each of the new allegations of the complainant without delay.
   • (h) With regard to the alleged wrongful dismissals of public sector workers’ leaders during the period 2007–14, noting that the complainant did not furnish further details in this regard albeit requested to do so, the Committee will not pursue the examination of this allegation unless the complainant provides additional information.
   • (i) The Committee encourages the Government to consider availing itself of the technical assistance of the Office with a view to addressing the Committee’s recommendations and strengthening the capacity of the Government and the social partners.

B. The Government’s reply

1. 421. In its communication dated 8 November 2016, the Government provided its observations. With respect to the alleged unilateral cancellation of the collective bargaining agreement (CBA), the Government states that the CBA was between Roberts International Airport (RIA) (hereinafter “the airport”) and the National Brotherhood of Teamsters Union of Liberia (NBT). However, the workers of the airport subsequently disassociated themselves from the NBT. The Government attaches in this regard a copy of a letter from the Roberts International Airport Workers Union (RIAWU) to the Assistant Minister for Trade Union Affairs and Social Dialogue dated 11 April 2013 and signed by the Secretary-General of the RIAWU, Mr Jaycee Garniah, and approved by the President of the RIAWU, Mr Mellish Weh. The letter states that the RIAWU has disassociated itself from its mother union, the NBT.
2. 422. The Government states in that respect that the workers informed the management that they no longer wanted the NBT to be their sole bargaining agent and that they were willing to negotiate for themselves. The Government states that under the Labour Practices Law (then in force) and Conventions Nos 87 and 98, the workers had the right to associate or to disassociate.
3. 423. The Government asserts that the disassociation nullified the CBA. In that regard, the Government indicates that the CBA stated that the NBT shall be the implementer of the agreement, and shall be the sole bargaining agent of the workers of the airport. Based on the disassociation, the management refused to implement the CBA without a bargaining agent. The Government refers to article 49 of the CBA which states that:
   • (a) both parties recognize that the Agreement imposes serious duties and responsibilities on the union as well as the employer; and
   • (b) the union and the employer jointly confirm that the agreement shall become operative from the date of signature and will remain in force for three years after which it shall be deemed automatically extended for further periods of one year unless either party gives notice to the other at least three months in advance of its expiry date or date of extension, that it does not wish renewal.
4. 424. With respect to the alleged unfair dismissal of trade union leaders, the Government states that the case is under probe within the Labour Standards Division of the Ministry of Labour. The Government indicates that the hearing of Mr Weh et al. has been delayed several times due to the absence of Mr Weh’s counsel, and that the defendant’s counsel (management of the airport) has requested a default judgment in its favour. The Government further states that it will not prejudice cases that are pending before a hearing officer and submits documents dated 27 October 2016 indicating that the request for a default judgement was denied.
5. 425. The Government states that it is currently enforcing the Decent Work Act 2015, and that it is not targeting a specific workers’ union by doing the following: regulating trade union activities; working in partnership with the national tripartite council; partnering with the Liberian Labour Congress on its reorganization and restructuring drive; and inspections. In addition, the Government recommends that in the future the ILO should liaise with the Government to ensure that all of the legal procedures and remedies were followed and adjudicated prior to the case being brought to the Committee for examination. The Government concludes by expressing its willingness to collaborate in ensuring compliance with the Decent Work Act, 2015, as well as Conventions Nos 87 and 98.

C. The Committee’s conclusions

1. 426. The Committee recalls that this case concerns allegations of the unilateral cancellation by the employer of a CBA signed between the management of the airport and the workers’ union; the anti-union dismissal of the President and the Secretary-General of the RIAWU; and interference in trade union affairs.
2. 427. With regard to the Government’s statement that the ILO should liaise with the Government to ensure that all of the legal procedures and remedies were followed and adjudicated prior to the case being brought to the Committee for examination, the Committee recalls that it had, on two occasions (June 2015 and May–June 2016), issued an urgent appeal to the Government requesting it to transmit its observations as a matter of urgency [see 375th Report para. 8 and 378th Report para. 9] and finally requested its Chairperson in, November 2016, to meet with a Government representative to express its concern and obtain the Government’s views. In addition, the Committee wishes to recall that, although the use of internal legal procedures, whatever the outcome, is undoubtedly a factor to be taken into consideration, it has always considered that, in view of its responsibilities, its competence to examine allegations is not subject to the exhaustion of national procedures [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, Annex I, para. 30].
3. 428. With respect to the alleged unilateral cancellations of the CBA, the Committee notes the Government’s indication that the CBA was between the airport and the NBT, and that the workers of the airport disassociated themselves from the NBT. It notes in this respect the Government’s statement that the workers informed the management that they no longer wanted the NBT union to be their sole bargaining agent and that they were willing to negotiate for themselves.
4. 429. The Committee takes note of the copy of the letter submitted with the Government’s response, from the RIAWU to the Assistant Minister for Trade Union Affairs and Social Dialogue, dated 11 April 2013 and signed by the Secretary-General of the RIAWU, Mr Jaycee Garniah and approved by the President of the RIAWU, Mr Mellish Weh. The letter states that the RIAWU has disassociated itself from its mother union, the NBT. The Committee observes that the letter does not refer to the CBA, the bargaining agent for the RIAWU or new negotiations.
5. 430. The Committee notes the Government’s assertion that the RIAWU’s disassociation nullified the CBA, and it refers in this respect to article 49 of the CBA. The Committee notes, however, based on the complainant’s submission, and the documents attached thereto, that the complainant considered the CBA to have remained in force in 2013 and 2014. The Committee notes that the CBA submitted with the complaint was signed on 6 December 2012 by seven persons. Three persons “on behalf of management” (the Acting General Manager of the airport and the Human Resource Manager of the airport, as well as the Managing Director of the Liberia Airports Authority), and four persons “on behalf of the union”: “the president of the mother union”, “the Secretary-General of the mother union”, as well as Mr Weh as “President of the RIA Plant Union” and Mr Garniah as “Secretary-General of the RIA Plant Union”. It notes that the preamble to the CBA states that the agreement between the management of the airport and the NBT shall cover all employees of the airport for whom the mother union (NBT) has been certified to negotiate. Article 2 of the CBA states that: (a) the duration of the Agreement shall be three years, commencing 2 January 2013 and ending 31 December 2015. Either party may give a 30 days written notice of its intention to terminate the Agreement at its expiration, and the notice must be issued at least two months prior to the expiration date of the Agreement; but until a new Agreement is signed between the two parties, this Agreement shall continue to be in effect as required under the Labour Laws of Liberia; (b) both parties to this Agreement will ensure compliance with the following standards set out in the current framework of national and international Convention laws. Article 49(a) provides that “both parties recognize that the Agreement imposes serious duties and responsibilities on the Union as well as the Employer” and article 49(b) states that “the union and the employer jointly confirm that the agreement shall become operative from the date of signature and will remain in force for three years after which it shall be deemed to be automatically extended for further periods of one year unless either party gives notice to the other at least three months in advance of its expiry date or date of extensions, that it does not wish renewal”. The Committee also notes that the CBA also outlines certain obligations of the “plant union”. It refers to “plant union activities” in article 32 on “plant union activities to be carried out during working hours” and article 33 of the CBA on “RIAWU responsibility” states that “two Executive Officers of the Union, namely the President and Secretary-General shall feasibly perform Union duties during working hours in order to reinforce and promote management policy, and protect workers’ rights at the workplace …”. The Committee observes that the CBA does not appear to contain provisions relating to disputes arising from its interpretation, or provisions relating to its cancellation, besides termination at its expiration.
6. 431. The Committee wishes to recall that mutual respect for the commitment undertaken in collective agreements is an important element of the right to bargain collectively and should be upheld in order to establish labour relations on stable and firm ground [see Digest, op. cit., para. 940]. Taking note of the apparent difference in interpretation concerning the CBA’s application following disassociation of the RIAWU from the NBT, the Committee considers that disputes arising out of the interpretation of a collective agreement should be submitted to an appropriate procedure for settlement established either by agreement between the parties or by laws or regulations as may be appropriate under national conditions. As no procedure for settlement is established in the CBA, the Committee considers that this difference in interpretation on the impact of disaffiliation from the mother union on the application of the CBA should be resolved by an impartial mechanism, such as an independent judicial body.
7. 432. Noting that based on the complainant’s submission and the documents attached thereto the complainant considered the CBA to have remained in force in 2013 and 2014, the Committee invites the complainant to provide its observations on the information provided in the Government’s communication relating to the disassociation of the RIAWU from the NBT and its understood effect on the CBA and to indicate whether it has had judicial recourse in this regard. The Committee again requests the Government to indicate the measures taken to ensure that RIAWU can continue to fulfil its functions in representing the workers and defending their occupational interests without fear of intimidation or reprisal.
8. 433. The Committee recalls that it previously expressed its concern at the employer’s alleged statements with regard to the remittance of union dues and advising members of the union to hold trade union officials accountable for the dues already remitted, and at the impact that such statements might have on the exercise of trade union rights at the airport [see 376th Report, para. 724]. The Committee once again requests the Government to reply in full to these allegations.
9. 434. With respect to the dismissals of Mr Weh and Mr Garniah, the Committee notes the Government’s indication that the case of the dismissal of Mr Weh et al. is under probe within the Labour Standards Division of the Ministry of Labour. The Committee requests the Government to keep it informed of the outcome of the investigation by the Labour Standards Division of the Ministry of Labour into Mr Weh’s dismissal. It further requests the Government to indicate whether Mr Garniah’s dismissal is covered by the same investigation, and if not, to conduct an immediate inquiry into the grounds for his dismissal and keep it informed of developments. If it is found that Mr Weh and Mr Garniah were dismissed for the exercise of legitimate trade union activities, the Committee requests the Government to take the necessary steps to ensure that they are fully reinstated, without loss of pay. In the event that reinstatement is not possible, for objective and compelling reasons, the Committee requests the Government to take the necessary measures to ensure that they are paid adequate compensation which would represent a sufficiently dissuasive sanction for anti-union dismissals.
10. 435. Concerning the allegation of the ongoing denial of the right of workers to join POCEGSUL and the complainant’s statement that it feels it is being targeted by the Ministry of Labour for its action before the ILO, the Committee notes the Government’s statement that it is currently enforcing the newly enacted Decent Work Act 2015, and that it is not targeting a specific workers’ union by regulating trade union activities; working in partnership with the national tripartite council; partnering with the Liberian Labour Congress on its reorganization and restructuring drive; and undertaking inspections. Emphasizing that workers’ and employers’ organizations should not be subject to retaliatory measures for having lodged a complaint with the Committee on Freedom of Association, the Committee requests the Government to provide further information in response to the allegations that the Ministry of Labour has denied workers the right to join the union and has refused to process documents in relation to organizing submitted by the complainant. The Committee also invites the complainant to provide additional detailed information with respect to this allegation.
11. 436. With regard to the alleged wrongful dismissals of public sector workers’ leaders during the period 2007–14, as the complainant has not furnished further details in this regard despite being requested to do so, the Committee will not pursue its examination of this allegation.
12. 437. Lastly, the Committee encourages the Government to consider availing itself of the technical assistance of the Office with a view to addressing the Committee’s recommendations and strengthening the capacity of the Government and the social partners.