Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Saint Kitts and Nevis (RATIFICATION: 2000)

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The Committee notes that in its report on Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) the Government indicates that the draft of the new Labour Code is in its second phase but has not yet been adopted, mainly due to the COVID-19 pandemic, and that it expects it to enter into force by the end of 2023.

Legislation. Articles 1, 2 and 4 of the Convention. The Committee recalls that in its previous comment it had requested the Government to take the necessary action to ensure that the legislation: (i) provides adequate protection against all acts of anti-union discrimination at the time of recruitment and throughout the course of employment with the application of dissuasive sanctions; (ii) contains specific provisions explicitly providing for rapid appeal procedures, coupled with effective and dissuasive sanctions against acts of interference; and (iii) explicitly recognizes and regulates the right to bargain collectively. The Committee notes the Government’s indication that it has issued a cabinet submission to the Competent authority to address the concerns raised by the Committee. Highlighting the importance of the current drafting of the new Labour Codethe Committee once again requests the Government to take the necessary measures to ensure the adoption of a labour legislation that is in full conformity with the Convention. The Committee requests the Government to provide information on any development in this respect and recalls that it may avail itself of the technical assistance of the Office.

Promotion of collective bargaining in practice. The Committee notes that the Government indicates that the most recent collective bargaining agreement between a major contributor to the manufacturing industry and the St. Kitts and Nevis Workers Union was concluded as of April 2022 and that between 100 and 150 workers will be concerned by the terms of this agreement. The Committee requests the Government to continue to provide information on the number of collective agreements concluded and in force, the sectors concerned, and the number of workers covered by these agreements. The Committee further requests the Government to provide information on the specific measures taken to promote collective bargaining throughout the different sectors of the economy.

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The Committee notes the information provided by the Government that while the previous draft Labour Code has been withdrawn, new measures have been adopted to prepare a new Labour Code through tripartite consultations and with the technical assistance from the Office.

Article 1 of the Convention. Adequate protection against acts of anti-union discrimination. In its previous comments, the Committee had requested the Government:

• – to take the necessary legislative measures to ensure that workers are granted adequate protection against all acts of anti-union discrimination at the time of recruitment and throughout the course of employment (section 11 of the Protection of Employment Act only refers to protection against termination of employment on the grounds of union membership or participation in union activities); and
• – to provide information on any development in relation to the Government’s efforts to ensure that the sanctions provided for in the Protection of Employment Act be reviewed so that they are sufficiently dissuasive against all acts of anti-union discrimination.

The Committee notes the Government’s indication that necessary changes will be reflected upon completion of the new Labour Code, taking into consideration the Committee’s observations, to guarantee adequate protection to workers against acts of anti-union discrimination at all stages of the employment relationship. The Committee further notes the Government’s indication that the Department of Labour continues to hold discussions to ensure that the existing sanctions outlined in the Act are increased according to the Committee’s recommendations and that this matter will be given full consideration during the consultation of the draft Labour Code, which is being carried out. The Committee observes, however, that the first draft of the new Labour Code, attached to the Government’s report, does not include provisions addressing the above-mentioned matters.

Article 2. Adequate protection against acts of interference. In its previous comments, the Committee had requested the Government to provide information on the measures taken towards the adoption of specific provisions that would explicitly provide for rapid appeal procedures, coupled with effective and dissuasive sanctions, against acts of interference. While the Committee notes the Government’s indication that its observations will be taken into consideration during the consultations on the Labour Code revision exercise and that specific measures will be adopted, it observes that the first draft of the new Labour Code does not include any provision prohibiting any acts of interference and, therefore, neither does it include provisions providing for rapid appeal procedures and sufficiently dissuasive sanctions against acts of interference.

Article 4. Recognition of organizations for the purposes of collective bargaining. In its previous comments, the Committee had requested the Government to provide information on the measures taken towards the adoption of specific provisions to explicitly recognize and regulate in the legislation the right to bargain collectively, in conformity with the Convention. The Committee notes the Government’s indication that this matter will be addressed during the consultative phase of the new draft Labour Code, taking into account the Committees’ observations. It also notes that the new draft Labour Code is silent in this regard.

In these circumstances, the Committee requests the Government to take all the necessary measures to include provisions in the new draft Labour Code so as to ensure full conformity with the Convention. The Committee trusts that the Government will take full advantage of the technical assistance of the Office and will soon be able to report progress in this regard.

Promotion of collective bargaining in practice. The Committee requests the Government to provide information on the number of collective agreements concluded and in force, the sectors concerned and the number of workers covered by these agreements.

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The Committee welcomes the information provided by the Government on the preparation of the draft Labour Code through tripartite consultations and with technical assistance from the ILO.

Article 1 of the Convention. Adequate protection against acts of anti-union discrimination. In its previous comments, the Committee had requested the Government:

• -to take the necessary legislative measures to ensure that workers are granted adequate protection against all acts of anti-union discrimination at the time of recruitment and throughout the course of employment (section 11 of the Protection of Employment Act only refers to protection against termination of employment on the grounds of union membership or participation in union activities); and
• -to provide information on any development in relation to the Government’s efforts to ensure that the sanctions provided for in the Protection of Employment Act be reviewed so that they are sufficiently dissuasive against all acts of anti-union discrimination.

The Committee notes with interest that the Government indicates in its report that: (i) all the necessary legislative measures have been taken into consideration to ensure that workers are granted adequate protection against acts of anti-union discrimination at the time of recruitment, throughout the course and up to the termination of employment and that these measures form part of the draft Labour Code; and (ii) the existing sanctions outlined in the Act are being reviewed with a view to ensuring that they are increased according to the Committee’s recommendations.

Article 2. Adequate protection against acts of interference. In its previous comments, the Committee had requested the Government to provide information on the measures taken towards the adoption of specific provisions that would explicitly provide for rapid appeal procedures, coupled with effective and dissuasive sanctions, against acts of interference. The Committee notes with interest that the draft Labour Code includes a provision explicitly prohibiting any acts of interference (section 203). The Committee notes the Government’s statement that sanctions will be reviewed in accordance with the Committee’s comments. In this regard, the Committee recalls, in its 2012 General Survey on the fundamental Conventions, paragraph 197, that “adequate protection” against acts of interference requires the establishment of rapid appeal procedures and sufficiently dissuasive sanctions against such acts.

Article 4. Recognition of organizations for the purposes of collective bargaining. In its previous comments, the Committee had requested the Government to provide information on the measures taken towards the adoption of specific provisions to explicitly recognize and regulate in the legislation the right to bargain collectively, in conformity with the Convention. The Committee notes that the Government states in its report that all the Committee’s recommendations have been taken into consideration, and that this issue has been addressed in the draft Labour Code.

The Committee observes that: (i) sections 235 and 236 of the draft Labour Code appear to require the support of more than 50 per cent of the bargaining unit to be recognized as bargaining agents; and (ii) sections 233 and 240 of the draft Labour Code confer discretion on the Labour Commissioner to determine the “appropriate” bargaining unit. In this regard, the Committee recalls that: (i) legislation that unilaterally imposes a level of bargaining or makes it compulsory for bargaining to take place at a specific level may also raise problems of compatibility with the Convention; and (ii) requiring the support of 50 per cent of the members of a bargaining unit to be recognized as a bargaining agent raises problems of compatibility with the Convention, as it means that a representative union which fails to secure the absolute majority may thus be denied the possibility of bargaining. The Committee recalls in its 2012 General Survey on the fundamental Conventions, paragraphs 222 and 234, that under a system of the designation of an exclusive bargaining agent, if no union represents the required percentage of workers to be declared the exclusive bargaining agent, collective bargaining rights should be granted to all the unions in the unit, at least on behalf of their own members.

The Committee requests the Government to make any necessary amendments to the draft Labour Code to ensure conformity with the abovementioned principles. The Committee hopes that the new Labour Code will soon be adopted and requests the Government to provide a copy.

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Article 1 of the Convention. Adequate protection against acts of anti-union discrimination in respect of employment. In its previous comments, the Committee had requested the Government:

• – to take the necessary legislative measures so as to ensure that workers are granted adequate protection against acts of anti-union discrimination at the time of recruitment, and throughout the course of employment (section 11 of the Protection of Employment Act only refers to protection against termination of employment on the grounds of union membership or participation in union activities); and
• – to provide information on any development in relation to the Government’s efforts to ensure that the sanctions provided for in the Protection of Employment Act (which only consist of a fine not exceeding 2,000 East Caribbean dollars (XCD) – equivalent to US$745) be reviewed so that they constitute a sufficient deterrent against all acts of anti-union discrimination.

Article 2. Adequate protection against acts of interference. In its previous comments, the Committee had requested the Government to provide information on the measures taken towards the adoption of specific provisions that would expressly provide for rapid appeal procedures, coupled with effective and dissuasive sanctions, against acts of interference.

Article 4. Promotion of collective bargaining. In its previous comments, the Committee had requested the Government to provide information on the measures taken towards the adoption of specific provisions to explicitly recognize in legislation, and to regulate the right to bargain collectively, in conformity with the principles of the Convention.

The Committee notes that the Government indicates in its report that it is in the process of formulating a Labour Code and that it received technical assistance in this process. The Government adds that the next steps will include multipartite consultations, the amalgamation of all existing labour legislation and the upgrading of all legislation that will include all recommendations made by the Committee. In these circumstances, the Committee requests the Government to provide in its next report information on any developments in this regard and hopes that its comments on all the abovementioned matters will be taken into account. Moreover, the Committee requests the Government to provide a copy of the Labour Code, once adopted.

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Article 1 of the Convention. Adequate protection against acts of anti-union discrimination in respect of employment. In its previous comments, the Committee had noted that section 11 of the Protection of Employment Act refers to protection against termination of employment on the grounds of union membership or participation in union activities. The Committee had recalled that, under the Convention, workers should enjoy adequate protection against any measures of anti-union discrimination both at the time of employment and throughout the course of employment, including up to the time of work termination (see General Survey of 1994 on freedom of association and collective bargaining, paragraphs 203 and 210). Noting the Government’s indication that the Committee’s recommendation will be submitted to the competent authority, the Committee once again requests the Government to take the necessary legislative measures so as to ensure that workers are granted adequate protection against acts of anti-union discrimination at the time of employment, and throughout the course of employment up to termination and to provide information on any development in this regard.

Sufficiently dissuasive sanctions. In its previous comments, the Committee had noted that, according to section 44(2) of the Protection of Employment Act, any employer who fails to comply with any of the provisions of this Act (including section 11 which prohibits anti-union dismissals) shall be guilty of an offence and on summary conviction shall be liable to a fine not exceeding 2,000 East Caribbean dollars (equivalent to US$745). The Committee had requested the Government to take the necessary measures to increase the amount of the existing sanctions so that they constitute a sufficient deterrent against all acts of anti-union discrimination. Noting the Government’s indication that the Department of Labour held discussions with the Minister of Labour and a legal consultant to provide assistance on labour matters in an effort to ensure that the existing sanctions outlined in the Act be increased according to the Committee’s recommendation, the Committee requests the Government to provide information on any development in this regard.

Article 2. Adequate protection against acts of interference. In its previous comments, the Committee had recalled that legislation should make express provision for rapid appeal procedures, coupled with effective and dissuasive sanctions against acts of interference in order to ensure the application in practice of Article 2 of the Convention; moreover, to ensure that these measures receive the necessary publicity and are effective in practice, the relevant legislation should explicitly lay down these substantive provisions, as well as appeals and sanctions in order to guarantee their application (see General Survey, op. cit., paragraph 232). The Committee had requested the Government to adopt specific measures, coupled with effective and sufficiently dissuasive sanctions, against acts of interference. Noting that consideration will be given by the Government to adopt specific measures according to its recommendation, the Committee requests the Government to provide information on any development in this regard.

Article 4. Promotion of collective bargaining. In its previous comments, the Committee had noted that the laws referred to by the Government did not contain any provision concerning the right to bargain collectively. The Committee had requested the Government to take the necessary measures to explicitly recognize in legislation and to regulate the right of collective bargaining in conformity with the principles of the Convention. Noting that consideration will be given by the Government to adopt specific measures according to its recommendation, the Committee requests the Government to provide information on any development in this regard.

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The Committee takes note of the Government’s first report.

Article 1 of the Convention. Adequate protection against acts of anti-union discrimination in respect of employment. The Committee notes the Government’s indication according to which adequate protection against acts of anti-union discrimination in respect of employment is ensured to workers by sections 3 and 13 of the Constitutional Order of 1983 and section 11 of the Protection of Employment Act. In this respect, the Committee notes that section 11 of the Protection of Employment Act refers to protection against termination of employment on the grounds of union membership or participation in union activities. The Committee recalls that, under the Convention, workers should enjoy adequate protection against any measures of anti-union discrimination both at the time of employment and throughout the course of employment, including up to the time of work termination (see General Survey of 1994 on freedom of association and collective bargaining, paragraphs 203 and 210). The Committee requests the Government to take the necessary legislative measures so as to ensure that workers are granted adequate protection against acts of anti-union discrimination at the time of employment, and throughout the course of employment up to termination. The Committee requests the Government to inform it of any developments in this regard.

Sufficiently dissuasive sanctions. The Committee notes that, according to section 44(2) of the Employment Protection Act, any employer who fails to comply with any of the provisions of this Act (including section 11 which prohibits anti-union dismissals) shall be guilty of an offence and on summary conviction shall be liable to a fine not exceeding 2,000 dollars (equivalent to US$745). The Committee considers that these fines might, on some occasions, not be sufficiently dissuasive. The Committee requests the Government to take the necessary measures to increase the amount of the existing sanctions so that they constitute a sufficient deterrent against all acts of anti-union discrimination.

Article 2. Adequate protection against acts of interference. The Committee notes that the Government indicates that the principle of protection is ensured to workers’ and employers’ organizations against any acts of interference by each other, by way of custom and practice, and that there are no known cases where these organizations have performed acts of interference in each others’ affairs. The Committee is of the view that legislation should make express provision for rapid appeal procedures, coupled with effective and dissuasive sanctions against acts of interference in order to ensure the application in practice of Article 2 of the Convention; moreover, to ensure that these measures receive the necessary publicity and are effective in practice, the relevant legislation should explicitly lay down these substantive provisions, as well as appeals and sanctions in order to guarantee their application (see General Survey, op. cit., paragraph 232). The Committee therefore requests the Government to adopt specific measures, coupled with effective and sufficiently dissuasive sanctions against acts of interference. The Committee requests the Government to inform it of any developments in this regard.

Article 4 of the Convention. Promotion of collective bargaining. The Committee notes that the laws referred to by the Government do not contain any provision concerning the right to bargain collectively. The Committee notes the Government’s indication according to which the National Tripartite Committee on International Labour Standards has functioned as a mechanism for ensuring respect for the right to organize. The Committee recalls that, according to Article 4 of the Convention, the Government should take measures appropriate to national conditions to encourage and promote the full development and utilization of machinery for voluntary bipartite negotiation between employers or employers’ organizations and workers’ organizations, with a view to the regulation of terms and conditions of employment by means of collective agreements. In these circumstances, the Committee requests the Government to take the necessary measures to explicitly recognize in legislation and to regulate the right of collective bargaining in conformity with the principles of the Convention.