Observation (CEACR) - adoptée 2004, publiée 93ème session CIT (2005)

The Committee notes that no report has been received from the Government. It must therefore repeat its previous observation on the following matters:

Article 1(c) and (d) of the Convention. In comments made for a number of years, the Committee has referred to section 35(2) of the Trade Unions Act, under which a penalty of imprisonment (involving, by virtue of section 66 of the Prison Rules, an obligation to work) may be imposed on any person employed by the Government, municipal authority or any employer in charge of supplying electricity, water, railway, health, sanitary or medical services or communications or any other service that may by proclamation be declared by the Governor to be a public service. The penalty of imprisonment may be imposed if such person wilfully and maliciously breaks a contract of service, knowing or having reasonable cause to believe that the probable consequences will be to cause injury or danger or grave inconvenience to the community. The Committee has also noted that section 2 of the Settlement of Disputes (Essential Services) Act, Statutory Instrument No. 92 of 1981, declared the National Fire Service, Postal Service, Monetary and Financial Services (banks, treasury, monetary authority), Airports (civil aviation and airport security services) and the Port Authority (pilots and security services) to be essential services; and Statutory Instrument No. 51 of 1988 declared the Social Security Scheme administered by the Social Security Branch an essential service.

The Committee notes from the Government’s report that section 35(2) of the Trade Unions Act has not been amended, but there have been no recorded penalties of imprisonment imposed under this section. It points out once again that, under Article 1(c) and (d) of the Convention, legislation providing for sanctions involving compulsory labour as a punishment for violations of labour discipline or for having participated in strikes must be repealed.

The Committee draws the Government’s attention to the explanations in paragraphs 110, 114-116 and 123 of its 1979 General Survey on the abolition of forced labour, where it considered that the Convention does not protect persons responsible for breaches of labour discipline that impair or are liable to endanger the operation of essential services in the strict sense of the term (that is, services whose interruption would endanger the life, personal safety or health of the whole or part of the population), or which are committed either to the exercise of functions that are essential to safety or in circumstances where life or health are in danger. However, to justify the non-application of Article 1(c) and (d) of the Convention in such cases, there must exist an effective danger to safety, life or health, not mere inconvenience. With regard to section 35(2) of the Trade Unions Act, the Committee previously noted that it refers not only to injury or danger but, alternatively, to grave inconvenience to the community, and applies not only to essential services in the strict sense of the term, but also to others whose interruption would not endanger the life, personal safety or health of the whole or part of the population, such as most employment under the Government or a municipal authority and most banking, postal and transport services.

Noting also the Government’s repeated indication that there are no recorded penalties of imprisonment imposed under section 35(2) of the Trade Unions Act, the Committee reiterates its hope that the necessary measure will at last be taken to bring section 35(2) of the Trade Unions Act into conformity with the Convention and the indicated practice. It asks the Government to provide, in its next report, information on the action taken to this end.

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