Direct Request (CEACR) - adopted 2011, published 101st ILC session (2012)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Papua New Guinea (Ratification: 2000)

The Committee notes the observations of the International Trade Union Confederation (ITUC) dated 31 August 2011 on issues already raised by the Committee.

In its previous comments, the Committee had noted that according to the Government, the fifth draft Industrial Relations Bill, which incorporates technical inputs provided by the ILO, had been placed before the National Tripartite Consultative Council for its endorsement and referral to the National Executive Council before submission to Parliament. The Committee notes the Government’s indication that the sixth draft Industrial Relations Bill has now been completed in 2010 and it is anticipated that the Industrial Relations Bill will go before the National Executive Committee and eventually Parliament by mid-2011.

The Committee had also noted that the several sections of the Industrial Organizations Act [sections 35(2)(b) (concerning qualifications for trade union membership); 22(1)(g) (concerning refusal of registration to an industrial organization); 55 (concerning cancellation of an industrial organization’s registration); 39(1)(b) and (d) (concerning qualifications for serving as an officer of an industrial organization); 39(4) (concerning the removal of trade union officers); and 5(1), 40, 58 and 60(1)(b) (all granting excessive powers to the registrar to investigate union accounts and demand information)], commented upon in its previous direct request would be repealed by the passage of the fifth draft bill. The Committee had noted that section 257 of the fifth draft Bill repeals the Industrial Organizations Act, the Industrial Relations Bill, the Industrial Relations (Amendment) Act of 1992, the Industrial Relations (Amendment) Act of 1998, the Public Service Conciliation and Arbitration Act, and the Teaching Service Conciliation and Arbitration Act. The Committee requested the Government to submit a copy of the fifth draft Industrial Relations Bill upon its adoption and trusted that, upon adoption, the fifth draft Bill would give full expression to the complete provisions of the Convention, including the comments of the Committee. The Committee understands that section 257 of the fifth draft bill has been incorporated in the sixth draft Bill. The Committee requests the Government to submit a copy of the sixth draft Industrial Relations Bill upon its adoption and once again trusts that, upon adoption, the sixth draft Bill will give full expression to the complete provisions of the Convention, including the comments of the Committee.

Article 2 of the Convention. Right of workers and employers without distinction whatsoever to establish and join organizations of their own choosing and without previous authorization. In its previous comments, the Committee noted that section 98(2)(b) of the third draft of the Industrial Relations Bill provides that a person who “has been convicted of a criminal offense justifying imprisonment by a court of law” may not become a union member. Recalling that denying union membership to persons convicted of a criminal offence is incompatible with Article 2 of the Convention, the Committee requested the Government to amend section 98(2)(b). The Committee notes with interest that the Government indicates in its report that section 98(2)(b) of the third draft of the Industrial Relations Bill has been modified and replaced by section 181 of the sixth draft Bill and that the abovementioned “conviction segment” has been deleted.

Trade union registration. The Committee previously noted that subsection (3) of section 118 of the third draft Industrial Relations Bill allows for the cancellation of an organization’s registration as a penalty for prohibited payments by individual officers. The Committee had noted the Government’s indication that section 199 of the fifth draft Bill no longer allows cancellation or deregistration as a penalty for prohibited payments (section 169 of the fifth draft Bill stipulates the reasons for cancellation of registration), but rather allows the Industrial Relations Commission to, on its own motion, hold trade union officers personally liable for payments by the organization that are applied to a court-ordered fine or penalty imposed on any individual. Recalling that trade unions should be free to decide whether to pay the fines assessed to their officers, the Committee requested the Government to take the necessary measures to abrogate section 199 of the fifth draft Industrial Relations Bill. The Committee notes the Government’s indication that section 201 of the sixth draft Bill now allows the National Court, instead of the Industrial Relations Commission, to, on its own motion, hold trade union officers personally liable for payments by the organization that are applied to a court-ordered fine or penalty imposed on any individual. Once again recalling that the trade unions should be free to decide whether to pay the fines assessed to their officers, not the courts, the Committee requests the Government to take the necessary measures to amend section 201 of the sixth draft Industrial Relations Bill.

Article 3. Right of workers’ and employers’ organizations to draw up their constitutions and rules, to elect their representatives in full freedom and to organize their administration and activities. In its previous comments, the Committee requested the Government to amend: (i) sections 103, 121 and 123 of the third draft Industrial Relations Bill to ensure that the supervision of an organization’s finances is limited to the obligation to submit periodic financial reports or on the basis of a complaint from a certain percentage of the workers; and (ii) sections 22 and 23(1) of the Industrial Relations Act granting excessive powers to the registrar to investigate union accounts and demand information. The Committee had noted the Government’s statement that in the fifth draft Bill, it had removed its legal authority to investigate the accounts of industrial organizations and that sections 103, 121 and 123 had been amended and were now governed by Division 4 – Funds and Accounts of the fifth draft Bill. The Committee expressed the hope that Division 4 of the fifth draft Bill ensured that the supervision of an organization’s finances was limited to the obligation to submit periodic financial reports or on the basis of a complaint from a certain percentage of the workers. The Committee notes with interest the Government’s indication that provisions relating to the powers of the Industrial Registrar in investigating union accounts and supervision as highlighted in the fifth draft Bill, section 202 (Division 4), have been removed completely from the sixth draft Bill as requested and in compliance with the views of the Committee.

The right of organizations freely to organize their activities and to formulate their programmes. The Committee previously noted that sections 150, 151 and 152 of the third draft Industrial Relations Bill, when read in concert, allow for instances of compulsory arbitration. The Committee requested the Government to take the necessary measures to amend sections 150, 151 and 152 to ensure that compulsory arbitration is at the request of both parties involved in a dispute, or if the strike in question may be restricted, even banned, i.e. 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. The Committee notes the Government’s indication that changes have been made to sections 150, 151 and 152 of the third draft Bill, now sections 73, 75 and 76 of the sixth draft Bill. The Committee observes however that although sections 73 and 76 provide that the parties to a conciliation proceeding can decide that conciliation proceedings are exhausted and inform the Commission that there is no likelihood of agreement for settlement; under sections 75(1) and 76, the decision to commence to arbitrate the matters in dispute between the parties does not lay with the parties, but it is the Commissioner’s obligation under the law. The Committee therefore once again recalls that compulsory arbitration to end a collective labour dispute and a strike is acceptable if it is at the request of both parties involved in a dispute, or if the strike in question may be restricted, even banned, i.e. 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. In these circumstances, the Committee requests the Government to take the necessary measures to amend sections 73, 75 and 76 of the sixth draft Bill in accordance with this principle.

The Committee also previously requested the Government to amend section 150 of the third draft Bill in order to ensure that conciliation proceedings are concluded within a reasonable period of time. The Committee had noted the Government’s indication that it has amended the draft Bill to provide several steps of mediation prior to the referral of the case to arbitration before the newly created Industrial Relations Commission. The Committee requested the Government to indicate the established period of time for mediation provided for in the fifth draft Bill. The Committee notes that no additional information was provided in this regard by the Government and that no change has been done in corresponding section 73 of the sixth draft Bill. The Committee therefore once again requests the Government to indicate the established period of time for mediation provided for in the sixth draft Bill.

The Committee observes that section 75(2) of the sixth draft Bill provides that “the Attorney General may seek leave of the Commission to intervene in any industrial dispute before the Commission on behalf of the State on the ground of public interest and public welfare”. The Committee considers that in order to gain and retain the parties’ confidence, any arbitration system should be truly independent. The Committee recalls that Article 3(2) provides that public authorities shall refrain from any interference which would restrict the right of organizations freely to organize their activities and to formulate their programmes under Article 3(1). The Committee therefore requests the Government to amend section 75(2) of the sixth draft Bill and provide any information regarding the measures taken in this regard.