Observation (CEACR) - adoptée 2008, publiée 98ème session CIT (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.