Observation (CEACR) - adoptée 2009, publiée 99ème session CIT (2010)

Article 1(c) and (d) of the Convention. Penalties involving compulsory labour as a punishment for breaches of labour discipline or for having participated in strikes. In comments it has been making 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 an obligation to perform labour, by virtue of section 66 of the Prison Rules) 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, 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 pointed out that the imposition of sanctions involving compulsory labour as a punishment for breaches of labour discipline or for having participated in strikes is incompatible with the Convention. It noted that section 35(2) of the Trade Unions Act 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 (that is, services whose interruption would endanger the life, personal safety or health of the whole or part of the population), but also to other services, such as most employment under the Government or a municipal authority and most banking, postal and transport services.

The Committee notes from the Government’s report that section 35(2) of the Trade Unions Act has not been amended. It also notes the Government’s repeated indication that there have been no recorded penalties of imprisonment imposed under this section. The Government states that the comments made by the Committee will be submitted to the Labour Advisory Board, which was reactivated in March 2009, and that one of its main duties is to review national legislation. According to the report, the Ministry is currently in the process of identifying a consultant that will work along with the Labour Advisory Board to conduct the revision of the labour legislation.

While having noted these indications, the Committee trusts that the necessary measures will soon be taken to bring section 35(2) of the Trade Unions Act into conformity with the Convention and the indicated practice, and that the Government will report the progress made in this regard.

The Committee is raising other points in a request addressed directly to the Government.