Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Anguilla

CMNT_TITLE

Previous comment

Article 2 of the Convention. Right of workers and employers, without distinction whatsoever, to establish and join organizations. The Committee had previously requested the Government to review the General Orders to remove all obstacles to the enjoyment of the right to freedom of association by casual employees in the public sector. The Committee notes with regret that according to the Government, the General Orders are still under review. The Committee urges the Government to take the necessary steps to expedite the review of the General Orders in consultation with the social partners and requests the Government to provide a copy thereof once amended.

Article 3. Right of organizations to organize their activities and formulate their programmes. The Committee had previously requested the Government to clarify whether a strike can be declared, regardless of the dispute being referred to the Tribunal, and to indicate in which circumstances the Minister may refer the dispute to the Tribunal. The Committee notes the Government’s indication that under the Labour (Relations) Act 2018 (LRA), which is the first instalment of the Labour Code, the Minister has been removed from the alternative dispute resolution process. If a matter is not resolved at the Labour Commissioner level, it is then referred to the Tribunal for the case to be heard pursuant to subsection 146(a) of the LRA. According to the Government, at the point of mediation at the Labour Commissioner level, if no resolution occurs and a request is made to forward the matter to the Tribunal, then employees would be encouraged to give the Tribunal a chance to handle the matter. While noting the Government’s additional indication that no provision forbids employees from exercising their right to strike following a referral of the matter to the Tribunal by the Commissioner, the Committee considers that recourse to compulsory arbitration to bring an end to a collective labour dispute and a strike is only acceptable under certain circumstances, namely: (i) when the two parties to the dispute so agree; or (ii) when the strike in question may be restricted, or even prohibited, that is: (a) in the case of disputes concerning public servants exercising authority in the name of the State; (b) in conflicts in essential services in the strict sense of the term; or (c) in situations of acute national or local crisis, but only for a limited period of time and to the extent necessary to meet the requirements of the situation (see the 2012 General Survey on the fundamental Conventions, paragraph 153). The Committee requests the Government to review the legislation in consultation with the social partners, so as to ensure fully the right of workers’ organizations to organize their activities and formulate their programmes. The Committee requests the Government to provide information on all steps taken to this effect.

Article 4. No dissolution or suspension of organizations by administrative authority. The Committee had requested the Government to indicate whether the appeal in cases of suspension, withdrawal or cancelation of an organization would have the effect of a stay execution (pursuant to sections 198(3) and 201(3) of the Labour Code Bill, 2018). The Committee notes the Government’s indication that, while it is assumed that an appeal to the Court would have the effect of a stay of execution during the above-mentioned situations, the third instalment of the Labour Code pertaining to trade unions and collective bargaining will not enter into force until late 2023. The Committee trusts that the third instalment of the Labour Code will give full effect to the Convention in this respect and requests the Government to provide a copy thereof once it has been adopted.

CMNT_TITLE

Article 2 of the Convention. Right of workers and employers, without distinction whatsoever, to establish and join organizations. In its previous comment, the Committee had requested the Government to ensure that through the processes of the adoption of the new Labour Code and the review of the General Orders, all obstacles to the enjoyment of the right to freedom of association by casual employees in the public sector are removed. While taking due note of the Government’s indication that sections 187–192 of the Labour Code Bill, scheduled to enter into force by 2019, have dealt with this inadequacy, it observes that the General Orders, which govern public officers and grant them the right to be members of a trade union and to attend private meetings of their union and to speak and vote at such meetings, has not yet been amended; thus, casual employees in the public sector continue to be excluded from its scope of application. The Committee notes the Government’s acknowledgement that the review of the General Orders is required. The Committee trusts that the General Orders will be reviewed, in consultation with the social partners, to remove all obstacles to the enjoyment of the right to freedom of association by casual employees in the public sector, and requests the Government to provide a copy thereof once they have been amended.

Article 3. Right of organizations to organize their activities and formulate their programmes. In its previous comments, the Committee had noted that sections 28(1)(a) and 30(1) of the Labour Code 2003 provided for compulsory arbitration to end collective labour disputes and strikes. The Committee notes with interest that pursuant to the Labour Code Bill, employers and employees are encouraged to settle their disputes through negotiation and conciliation by the Commissioner (section 20(1) and (2)). The Committee notes, however, that where the parties have exhausted their efforts to resolve the dispute through negotiation and conciliation, the dispute is referred to the Minister who may facilitate its resolution by either attempting himself or herself to achieve a voluntary settlement (section 21 (a)), or referring the matter to mediation (section 21(c)) or to the Tribunal (section 21(b)), whose decisions are binding and can only be appealed in the High Court on a point of law (section 24(1)). The Committee further notes that pursuant to section 22(2)(a), a strike might take place if the parties have failed to resolve the dispute through negotiation and conciliation and the Minister has certified that the dispute is unresolved after conciliation. The Committee therefore requests the Government to clarify whether a strike can be declared regardless of the dispute being referred to the Tribunal (or an appeal to the Court), and to indicate in which circumstances the Minister may refer the dispute to the Tribunal pursuant to section 21(b) of the Labour Code Bill.

Article 4. No dissolution or suspension of organizations by administrative authority. The Committee notes that pursuant to sections 198(3) and 201(3) of the labour code bill, any trade union or employers’ organization subject to a suspension, withdrawal or declared to be defunct by the Registrar has the right to apply for judicial review or to appeal, as the case may be. The Committee recalls that the suspension, withdrawal or cancellation of trade union registration constitute extreme forms of interference by the authorities in the activities of organizations and should, therefore, be accompanied by all the necessary guarantees, including the right to appeal to the Court which should have the effect of a stay of execution until a judicial ruling is handed down on the matter. The Committee requests the Government to indicate whether the appeal in the abovementioned situations would have the effect of a stay of execution.

The Committee requests the Government to provide a copy of the Labour code bill once it has been adopted.

CMNT_TITLE

Article 2 of the Convention. Right of workers and employers, without distinction whatsoever, to establish and join organizations. In its previous comments, the Committee had requested the Government to indicate whether casual employees, excluded from the scope of the General Orders, enjoy the right to freedom of association and, in the event that they do not enjoy this right, to indicate any measures envisaged to recognize to this category of workers the rights enshrined in the Convention. The Committee takes due note of the Government’s indication that the review of the General Orders is under way and that the draft Labour Code that should come into force later in 2017 has dealt with the inadequacy of the General Orders with regard to casual employees in the public sector. The Committee requests the Government to ensure that through the current processes of the adoption of the Labour Code and the review of the General Orders, all obstacles to the enjoyment of the right to freedom of association by casual employees in the public sector are removed and to provide a copy of the reviewed General Orders.

Article 3. Right of organizations to organize their activities and formulate their programmes. In its previous comments, the Committee had noted that sections 28(1)(a) and 30(1) of the 2003 Labour Code provided for compulsory arbitration to end collective labour disputes and strikes and had recalled that compulsory arbitration is only acceptable at the request of both parties involved in the dispute or if the strike in question may be restricted, even banned – that is in the case of disputes in the public service involving public servants exercising authority in the name of the State or in essential services in the strict sense of the term, namely those services whose interruption would endanger the life, personal safety or health of the whole or part of the population. Noting the Government’s previous indication that the new Labour Code would address the Committee’s comments on sections 28(1)(a) and 30(1), the Committee continues to express the hope that these modifications will be made and the new Code adopted in the near future. The Committee notes the Government’s indication that the draft Labour Code is scheduled to go to the House of Assembly in September 2017. The Committee requests the Government to provide information on the outcome of the legislative process and to provide a copy of the new Labour Code once it is adopted.

CMNT_TITLE

The Committee notes the observations of the International Organisation of Employers (IOE) received on 1 September 2016.

The Committee notes that a draft Labour Code was prepared in 2015.

The Committee notes with regret that the Government’s report has not been received. It hopes that the next report will contain full information on the matters raised in its previous comments.

Article 2 of the Convention. Right of workers and employers, without distinction whatsoever, to establish and join organizations. In its previous comments, the Committee requested the Government to indicate whether all employees of the public sector – other than the armed forces and the police – enjoyed the rights of freedom of association, and to provide a copy of the relevant legislation. The Committee notes that sections 3.25 et seq. of the General Orders 2010, transmitted by the Government in its report, establishes that public officers may be members of a trade union and to attend private meetings of their union and to speak and vote at such meetings.

The Committee notes however that, according to section 1.5 of the General Orders, these are not applicable to casual employees. The Committee recalls that the right to establish and join occupational organizations should be guaranteed for all public servants and officials and that no distinction may be made based on whether public sector employees are engaged on a permanent or temporary basis (see General Survey on the fundamental Conventions concerning rights at work in light of the ILO Declaration on Social Justice for a Fair Globalization, 2008). The Committee requests the Government to indicate in its next report whether casual employees, excluded from the scope of the General Orders, enjoy the rights of freedom of association and, in the event that they do not enjoy these rights, to indicate any measures envisaged to recognize to this category of workers the rights enshrined in the Convention.

Article 3. The right of organizations freely to organize their activities and formulate their programmes. In its previous comments, the Committee noted that section 28(1)(a) of the Labour Code of 2003 allows the minister responsible for the administration of the Labour Code to refer any dispute of his/her choice to arbitration so long as he/she provides the party with notice in writing of that intent. Under section 30(1) of that Code, arbitration will be binding upon both parties and may only be appealed on the basis of a legal error. The Committee recalled that compulsory arbitration to end a collective labour dispute and strike is only acceptable at the request of both parties involved in the dispute, or if the strike in question may be restricted, even banned – that is the case of disputes in the public service involving public servants exercising authority in the name of the State or in essential services in the strict sense of the term, namely those services whose interruption would endanger the life, personal safety or health of the whole or part of the population. The Committee notes the information provided by the Government indicating that a draft Labour Code 2005 has been formulated, that the Government hopes it will be enacted by December 2013, and that observations regarding sections 28(1)(a) and 30(1) will be inserted in this Code. The Committee hopes that the new Labour Code will be adopted in the near future and requests the Government to provide information on any progress in this regard in its next report.

CMNT_TITLE

The Committee notes the observations of the International Organisation of Employers (IOE) received on 1 September 2015.

The Committee also notes that the Government’s report has not been received. It hopes that the next report will contain full information on the matters raised in its previous comments.

Article 2 of the Convention. Right of workers and employers, without distinction whatsoever, to establish and join organizations. In its previous comments, the Committee requested the Government to indicate whether all employees of the public sector – other than the armed forces and the police – enjoyed the rights of freedom of association, and to provide a copy of the relevant legislation. The Committee notes that sections 3.25 et seq. of the General Orders 2010, transmitted by the Government in its report, establishes that public officers may be members of a trade union and to attend private meetings of their union and to speak and vote at such meetings.

The Committee notes however that, according to section 1.5 of the General Orders, these are not applicable to casual employees. The Committee recalls that the right to establish and join occupational organizations should be guaranteed for all public servants and officials and that no distinction may be made based on whether public sector employees are engaged on a permanent or temporary basis (see General Survey on the fundamental Conventions concerning rights at work in light of the ILO Declaration on Social Justice for a Fair Globalization, 2008). The Committee requests the Government to indicate in its next report whether casual employees, excluded from the scope of the General Orders, enjoy the rights of freedom of association and, in the event that they do not enjoy these rights, to indicate any measures envisaged to recognize to this category of workers the rights enshrined in the Convention.

Article 3. The right of organizations freely to organize their activities and formulate their programmes. In its previous comments, the Committee noted that section 28(1)(a) of the Labour Code of 2003 allows the minister responsible for the administration of the Labour Code to refer any dispute of his/her choice to arbitration so long as he/she provides the party with notice in writing of that intent. Under section 30(1) of that Code, arbitration will be binding upon both parties and may only be appealed on the basis of a legal error. The Committee recalled that compulsory arbitration to end a collective labour dispute and strike is only acceptable at the request of both parties involved in the dispute, or if the strike in question may be restricted, even banned – that is the case of disputes in the public service involving public servants exercising authority in the name of the State or in essential services in the strict sense of the term, namely those services whose interruption would endanger the life, personal safety or health of the whole or part of the population. The Committee notes the information provided by the Government indicating that a draft Labour Code 2005 has been formulated, that the Government hopes it will be enacted by December 2013, and that observations regarding sections 28(1)(a) and 30(1) will be inserted in this Code. The Committee hopes that the new Labour Code will be adopted in the near future and requests the Government to provide information on any progress in this regard in its next report.

CMNT_TITLE

Article 2 of the Convention. Right of workers and employers, without distinction whatsoever, to establish and join organizations. In its previous comments, the Committee requested the Government to indicate whether all employees of the public sector – other than the armed forces and the police – enjoyed the rights of freedom of association, and to provide a copy of the relevant legislation. The Committee notes that sections 3.25 et seq. of the General Orders 2010, transmitted by the Government in its report, establishes that public officers may be members of a trade union and to attend private meetings of their union and to speak and vote at such meetings.

The Committee notes however that, according to section 1.5 of the General Orders, these are not applicable to casual employees. The Committee recalls that the right to establish and join occupational organizations should be guaranteed for all public servants and officials and that no distinction may be made based on whether public sector employees are engaged on a permanent or temporary basis (see General Survey on the fundamental Conventions concerning rights at work in light of the ILO Declaration on Social Justice for a Fair Globalization, 2008). The Committee requests the Government to indicate in its next report whether casual employees, excluded from the scope of the General Orders, enjoy the rights of freedom of association and, in the event that they do not enjoy these rights, to indicate any measures envisaged to recognize to this category of workers the rights enshrined in the Convention.

Article 3. The right of organizations freely to organize their activities and formulate their programmes. In its previous comments, the Committee noted that section 28(1)(a) of the Labour Code of 2003 allows the minister responsible for the administration of the Labour Code to refer any dispute of his/her choice to arbitration so long as he/she provides the party with notice in writing of that intent. Under section 30(1) of that Code, arbitration will be binding upon both parties and may only be appealed on the basis of a legal error. The Committee recalled that compulsory arbitration to end a collective labour dispute and strike is only acceptable at the request of both parties involved in the dispute, or if the strike in question may be restricted, even banned – that is the case of disputes in the public service involving public servants exercising authority in the name of the State or in essential services in the strict sense of the term, namely those services whose interruption would endanger the life, personal safety or health of the whole or part of the population. The Committee notes the information provided by the Government indicating that a draft Labour Code 2005 has been formulated, that the Government hopes it will be enacted by December 2013, and that observations regarding sections 28(1)(a) and 30(1) will be inserted in this Code. The Committee hopes that the new Labour Code will be adopted in the near future and requests the Government to provide information on any progress in this regard in its next report.

CMNT_TITLE

Article 2 of the Convention. Right of workers and employers, without distinction whatsoever, to establish and join organizations. In its previous comments, the Committee noted that section 4(2)(a) of the Labour Code of 2003 indicates that the provisions of the Code shall not apply to “established employees” – that is those public officers or persons employed by the Government whose salary is paid from or out of the personal emoluments included in the official estimates of Anguilla – and requested the Government to indicate whether established employees are covered by any other legislation and enjoy the rights of freedom of association. The Committee notes that while the Government indicates in its report that police forces have the right to establish associations, it does not provide information on whether other categories of established employees enjoy the rights set forth in the Convention. The Committee recalls that public employees, like all other workers – with the exception of the armed forces and the police – without distinction whatsoever, have the right to establish and join organizations of their own choosing, without previous authorization, for the promotion and defence of their occupational interests. The Committee requests the Government to indicate in its next report whether all employees of the public sector – other than the armed forces and the police – enjoy the rights of freedom of association, and to provide a copy of the relevant legislation.

Article 3. The right of organizations freely to organize their activities and formulate their programmes. In its previous comments, the Committee noted that section 28(1)(a) of the Labour Code of 2003 allows the minister responsible for the administration of the Labour Code to refer any dispute of his choice to arbitration so long as he provides the party with notice in writing of that intent. Under section 30(1) of that Code, arbitration will be binding upon both parties and may only be appealed on the basis of a legal error. The Committee notes that the Government does not provide information in this respect in its report. The Committee recalls that compulsory arbitration to end a collective labour dispute and strike is only acceptable at the request of both parties involved in the dispute, or if the strike in question may be restricted, even banned – that is the case of disputes in the public service involving public servants exercising authority in the name of the State or in essential services in the strict sense of the term, namely those services whose interruption would endanger the life, personal safety or health of the whole or part of the population. In these circumstances, the Committee once again requests the Government to take the necessary measures to amend the Labour Code, in order to ensure that compulsory arbitration only occurs in the abovementioned instances. The Committee requests the Government to include in its next report any information concerning measures taken or contemplated in this respect.

CMNT_TITLE

Article 2 of the Convention. Right of workers and employers, without distinction whatsoever, to establish and join organizations. The Committee notes that section 4(2)(a) of the Labour Code 2003 indicates that the provisions of the Code shall not apply to established employees (i.e. those public officers or persons employed by the Government whose salary is paid from or out of the personal emoluments included in the official estimates of Anguilla). The Committee recalls that public employees, like all other workers (with the exception of the armed forces and the police) without distinction whatsoever, have the right to establish and join organizations of their own choosing, without previous authorization, for the promotion and defence of their occupational interests. The Committee requests the Government to indicate whether established employees are covered by any other legislation and enjoy the rights of freedom of association.

Article 3 of the Convention. The right of organizations freely to organize their activities and formulate their programmes. The Committee notes that section 28(1)(a) of the Labour Code of 2003 allows the Minister responsible for the administration of the Labour Code to refer any dispute of his choice to arbitration so long as he provides the party with notice in writing of that intent. Under section 30(1) of that Code, arbitration will be binding upon both parties and may only be appealed on the basis of a legal error. The Committee recalls that compulsory arbitration to end a collective labour dispute and strike is only acceptable at the request of both parties involved in the dispute, or if the strike in question may be restricted, even banned, i.e. the case of disputes in the public service involving public servants exercising authority in the name of the State or in essential services in the strict sense of the term, namely those services whose interruption would endanger the life, personal safety or health of the whole or part of the population. In these circumstances, the Committee requests the Government to take the necessary measures to amend the Labour Code, in order to ensure that compulsory arbitration only occurs in the abovementioned instances. The Committee requests the Government to include in its next report any information concerning measures taken or contemplated in this respect.