Observation (CEACR) - adoptée 2023, publiée 112ème session CIT (2024)

Repetition

The Committee had noted the comments made by the International Trade Union Confederation (ITUC) in a communication received on 31 August 2014. The Committee requests once again the Government to provide its comments in this respect.

Articles 1 and 3 of the Convention. Protection against acts of anti-union discrimination. The Committee had previously noted that the new Employment Rights Act (ERA) only covered cases of anti-union dismissals (section 27) and limited this protection to employees continuously employed for a period of over one year. The Committee had recalled that the Government had adequate protection against acts of anti-union discrimination which should not be confined to penalizing dismissal on anti-union grounds, but should cover all acts of anti-union discrimination (demotions, transfers and other prejudicial acts) at all stages of the employment relationship, regardless of the employment period, including at the recruitment stage, and had therefore requested the Government to amend the new Act so as to bring it into conformity with the Convention. The Committee notes that the Government reiterates that section 40A of the Trade Union Act provides protection against acts of anti-union discrimination stating that an employer who dismisses a worker or adversely affects the employment or alters the positions of a worker to his prejudice because that worker takes part in trade union activities is guilty of an offence. The Committee welcomes the Government’s indication that under the proposed Employment (Prevention and Discrimination) Act, which is currently in an advanced stage of preparation, a person discriminates against another when that person on a ground specified (subsection (2)) creates an exclusion or shows a preference, the intent or effect of which is to subject the other person to any disadvantage, restrictions or other detriment, and that the Government will take immediate steps to include “trade union membership or trade union status” as a ground established in subsection (2). The Government further indicates that under the proposed Act, the Employment Rights Tribunal will have the power to make a range of orders, including paying to the complainant a compensation in an amount that may include exemplary damages. The Committee trusts that the new legislation will soon be adopted and will ensure adequate protection against all acts of anti-union discrimination. It requests the Government to provide information on any progress made in this respect.

In its previous comment, the Committee had further noted that while sections 33–37 of the new ERA provided for the possibility of reinstatement, re engagement and compensation, the maximum amount of compensation awarded to workers who have been employed for less than two years is five-weeks wages, which, depending on the number of years of continuous employment, is increased by between two-and-a-half and three-and-a-half weeks wages for each year of that period (Fifth Schedule). The Committee had considered that the prescribed amounts do not represent sufficiently dissuasive sanctions for anti-union dismissal, and had therefore requested the Government to take the necessary measures to amend the Fifth Schedule of the new ERA so as to bring the compensation amount to an adequate level. The Committee notes the Government’s indication that it is proposing an amendment to the ERA that: (i) would allow the Chief Labour Officer to lodge cases before the Employment Rights Tribunal which may include persons employed for less than one year and where anti-union discrimination is being alleged; and (ii) gives power to the Tribunal to order an amount not exceeding 52 weeks’ wages. The Committee recalls that the compensation envisaged for anti-union dismissal should: (i) be higher than that prescribed for other kinds of dismissal, with a view to the effective dissuasion of this type of dismissal; and (ii) be adapted in accordance with the size of the enterprises concerned (it has considered, for example, that while compensation of up to six months’ wages may be a deterrent for small and medium-sized enterprises, that is not necessarily the case for highly productive and large enterprises). The Committee trusts that the Government will take all the necessary measures to amend the ERA in line with the principles set out above, and requests the Government to provide information on any development in relation to the envisaged legislative amendment and its application in practice.