CMNT_TITLE

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Kiribati (RATIFICATION: 2000)

Article 2 of the Convention. Right of public employees to establish and join organizations of their own choosing. The Committee had previously requested the Government to take measures to amend the National Conditions of Service (NCS) providing that all employees are free to join a “recognized” staff association or union, given that there is no legislative provision relating to union recognition. The Committee notes the Government’s indication that it was agreed to accommodate these concerns in the current process of NCS review, and that a change was proposed to remove the word “recognized” for the purposes of consistency with the law. The Committee trusts that the reference to “recognized” staff associations or unions will soon be removed from section L.7 of the NCS for the purposes of legal certainty.

Article 3. Right of organizations to organize their activities. The Committee had previously commented on the need to remove penal sanctions for participation in peaceful strikes. The Committee welcomes that the Employment and Industrial Relations Code (EIRC) does not contain penalties of imprisonment in cases of participation in strikes in essential services or in unlawful strikes; but observes that the following provisions of the EIRC could unduly restrict the right to take industrial action: approval of strike action by a majority of the employees (section 139); declaration of a strike as illegal by the administrative authority (sections 136–139); and penal sanctions in the form of fines for participation in unlawful strikes (sections 136–139 in conjunction with section 152). The Committee notes the Government’s indication that: (i) it was agreed to remove present penalties but to retain fine penalties for illegal strikes; (ii) the penalties are maximum sanctions and the court has the discretion to decide on the level of sanction applicable depending on the seriousness of the case; and (iii) the definition of proportionate penalties applicable to cases of unlawful strike should be clarified. The Committee recalls that: (i) if the strike is determined by a competent judicial authority to be unlawful on the basis of provisions that are in conformity with freedom of association principles, proportionate disciplinary sanctions may be imposed against strikers (such as reprimands, withdrawal of bonuses, etc.); (ii) the question of determining whether or not a strike is lawful is therefore essential, and responsibility for declaring a strike illegal should not lie with the government authorities, but with an independent body which has the confidence of the parties involved; (iii) no penal sanctions should be imposed against a worker for having carried out a peaceful strike and thus for merely exercising an essential right, and therefore measures of imprisonment or fines should not be imposed on any account; and (iv) penal sanctions in the form of imprisonment or fines could be envisaged only where, during a strike, violence against persons or property, or other serious infringements of penal law have been committed and can be imposed exclusively pursuant to legislation punishing such acts, such as the Penal Code (for example, in the case of failure to assist a person in danger, deliberate injury or damage deliberately caused to property). The Committee requests the Government to consider reviewing the above provisions of the EIRC with a view to ensuring that, in a strike ballot, account is only taken of the votes cast, that the declaration of a strike as unlawful emanates from an independent body, and that no penal sanctions in the form of fines are imposed in unlawful but peaceful strikes.

Dispute resolution procedure. The Committee had previously requested the Government to take measures to amend the legislation so as to limit the possibility of imposing compulsory arbitration to cases in line with the Convention. The Committee notes that, if conciliation has failed, the Registrar may, under section 128(2) of the EIRC, refer a dispute for arbitration: (i) if one or more of the parties request to refer the dispute for arbitration; (ii) if the dispute is in the public services involving public servants exercising authority in the name of the State; or (iii) if a dispute has been protracted or is tending to endanger or has endangered the personal health, safety or welfare of the community or part of it. The Committee notes the Government’s indication that: (i) arbitration in the EIRC is not a final decision in a particular dispute, as arbitration awards are appealable to the High Court; (ii) the arbitration process is the main entry point for formal legal redress for the parties to a dispute where conciliation fails; and (iii) the element of compulsion where a matter can be referred for arbitration without reference to the parties is only in section 128(2)(ii) and (iii) above. In order not to excessively restrict the right of organizations to formulate their programmes and organize their activities, the Committee recalls that recourse to compulsory arbitration to bring an end to a collective labour dispute and a strike is only acceptable when the strike in question may be restricted, or even prohibited, that is: (i) in the case of disputes concerning public servants exercising authority in the name of the State; (ii) in conflicts in essential services in the strict sense of the term (that is, services the interruption of which would endanger the life, personal safety or health of the whole or part of the population); or (iii) in situations of acute national or local crisis; and that, accordingly, the existence of protracted disputes and the failure of conciliation are not per se elements which justify the imposition of compulsory arbitration. In this regard, the Committee considers that, while section 128(2)(ii) is compatible with the Convention, the following provisions are likely to make it possible to prohibit virtually all strikes or to end them quickly: section 128(2)(i) (the element of compulsion being that one party alone is able to pursue the dispute by arbitration) and section 128(2)(iii) (first part) referring to protracted industrial action. The Committee requests the Government to consider reviewing section 128 of the EIRC, with a view to ensuring that compulsory arbitration is possible only in cases that are in line with the Convention.