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Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - South Sudan (RATIFICATION: 2012)

In its previous comment, the Committee took note of the adoption of the Workers Trade Unions Act 2013 (WTUA) and of the elaboration of the Labour Bill 2012 (LB). The Committee requested the Government to provide further details on certain aspects of the WTUA and to provide information on the status of the LB and on the participation of the social partners in its elaboration.

In its report, the Government indicates that the LB was enacted into law on 12 December 2017 and that all social partners were involved in its elaboration. The Committee further notes the Government’s indication that the Labour Act, a copy of which has been provided by the Government, contains specific provisions to protect workers against acts of anti-union discrimination.

Article 1 of the Convention. Adequate protection against acts of anti-union discrimination. The Committee had previously noted that: (i) section 28(1) of the WTUA prohibits dismissal, downgrading, compulsory retirement and any other action prejudicial to the worker for reasons related to activity in a union or federation; (ii) section 27(1) prohibits transfer of any employee who stands for election to a union committee; and (iii) section 27(2) prohibits imposition of sanctions on members of a union’s or a federation’s committee for reasons related to committee membership. The Committee notes that section 6 of the Labour Act prohibits direct or indirect discrimination against a worker or job applicant on the basis of trade union membership or participation in trade union activities, and that section 73(2) explicitly prohibits anti-union dismissals. The Committee also takes note of the Government’s indication that in the few incidents of anti-union discrimination that have occurred, the Government has mediated between workers and employers to mitigate the disputes. While taking note of this information, the Committee requests the Government to provide information on the number of complaints filed with the competent authorities in this field, the outcome of the investigations and court proceedings as well as their average duration, in both the public and private sectors.

Article 2. Protection against acts of interference. The Committee had previously observed that, while section 28(2)(b) of the WTUA restricts employers’ intervention in trade union affairs, it does not proscribe intervention of trade unions in employers’ organizations. The Committee also noted the Government’s indication that employers’ and workers’ organizations enjoy the right to freely organize themselves without the Government’s interference in line with article 25(1) of the Transitional Constitution, and that this protection was going to be spelled out in the Labour Act and its regulations. The Committee observes, however, that while the Transitional Constitution (article 25(1)) and the Labour Act (article 9) provide for the right to establish and join trade unions or employers’ organizations, neither of them contain provisions affording adequate protection against acts of interference by each other or each other’s agents or members in the establishment, functioning or administration. The Committee therefore requests the Government to take the necessary measures to ensure that the legislation explicitly prohibits intervention by workers’ and employers’ organizations against each other. It also requests the Government to provide information on the number of complaints filed with the competent authorities in this field, the outcome of investigations and court proceedings and their average duration, in both the public and private sectors.

Article 3. Machinery to ensure effective protection. The Committee had previously noted that the WTUA does not provide for an appeal procedure and sanctions against acts of anti-union discrimination and interference. The Committee notes that the Labour Act provides for the establishment of a labour inspectorate, labour commissioner, labour advisory council, commission for conciliation, mediation and arbitration and a labour court (sections 16–34). The Labour Act further specifies that anti-union discrimination and anti-union dismissals constitute an offence (sections 6(6) and 73(2)) and that reinstatement and compensation can be ordered for unfair dismissal (section 85(1)). The Committee also notes that section 127 of the Labour Act provides for the issuance of regulations establishing penalties that may be imposed by the Labour Court upon finding of an offence under the Labour Act (these include, among others, imprisonment of up to five years and fines commensurate with the offence). The Committee requests the Government to indicate whether the said regulations have been issued and, if so, to provide a copy. Recalling that, under the Convention, all acts of anti-union discrimination and interference should be adequately prevented through the imposition of dissuasive sanctions and adequate compensation, the Committee requests the Government to provide detailed information as to the sanctions and compensations effectively imposed to acts of anti-union discrimination and interference.

Article 4. Promotion of collective bargaining. The Committee had previously noted that the LB contained provisions on collective bargaining. The Committee notes that the Labour Act provides for rules on the initiation of collective bargaining, obligation to negotiate in good faith, content of collective agreements, their registration and legal effect, as well as disputes in this regard (sections 88–95). It further notes that section 87 establishes a system under which a trade union that represents the majority of the workers in a bargaining unit is entitled to recognition as the exclusive bargaining agent, which is to be determined by the employer or, under certain circumstances, by the Commission for Conciliation, Mediation and Arbitration. With a view to effectively promoting the exercise of collective bargaining, the Committee emphasizes the importance of ensuring that: (i) the determination of representativeness is carried out in accordance with a procedure that offers every guarantee of impartiality, by an independent body that enjoys the confidence of the parties; and (ii) the right to collective bargaining can still be exercised by the existing workers’ organizations in the absence of a majority union.  The Committee therefore requests the Government to provide further details on: (i) the criteria and procedure to determine the exclusive bargaining agent; (ii) the right of other organizations to demand a new election after a reasonable period; (iii) the possibility of creating groups of trade unions for bargaining purposes; and (iv) collective bargaining rights of minority unions where no union meets the requirements to become the exclusive bargaining agent.

Article 6. Civil servants not engaged in the administration of the State. The Committee had previously noted that section 6 of the WTUA exempts from its scope of application the following categories of workers: any disciplined force including the army, police, prison service, fire service and wildlife forces; national security forces; constitutional post holders; judges and justices; public attorney and legal advisers and senior members of the diplomatic service. The Committee notes that section 4(2) of the Labour Act also exempts from its scope of application the army; organized forces; national security service; judges; government legal counsels; diplomatic service and constitutional post holders. The Committee recalls that while members of the armed forces, the police and civil servants engaged in the administration of the State can be excluded from the application of the Convention, all other categories of workers, including prison, fire and wildlife services, as well as civilian personnel in the armed forces, should benefit from the rights granted by it.  The Committee requests the Government to take the necessary measures to ensure that national legislation guarantees the rights provided in the Convention to the civil servants not engaged in the administration of the State.

Application of the Convention in practice. The Committee once again invites the Government to provide information on the measures taken to promote collective bargaining and on the number of collective agreements concluded, specifying the sectors and the number of workers covered.