Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Gambia (Ratification: 2000)

The Committee notes that the Government’s report has not been received. It is therefore bound to repeat its previous comments.

Repetition

The Committee takes note of the supplementary information provided by the Government in light of the decision adopted by the Governing Body at its 338th Session (June 2020). The Committee proceeded with the examination of the application of the Convention on the basis of the supplementary information received from the Government this year, as well as on the basis of the information at its disposal in 2019.

Scope of the Convention. Civil servants not engaged in the administration of the State, prison officers and domestic workers. For a number of years, the Committee has been requesting the Government to indicate if the excluded employees under section 3(2) of the Labour Act (prison officers, domestic workers and civil servants not engaged in the administration of the State) were afforded the right to collective bargaining as well as adequate protection against acts of anti-union discrimination and interference. The Committee recalls that the Government had previously indicated that while the excluded employees under section 3(2) of the Labour Act 2007 are not afforded the right to collective bargaining, they are accorded equal rights under the General Order (GO), Public Service Commission Regulations and the Terms and Conditions of Service for Men and Officers in the Military. The Government had also indicated that it aimed to adopt a new Trade Union Bill 2019 in which the exclusion of these categories of workers may be reviewed to take into consideration Articles 1 and 2 of the Convention. The Committee notes that the Government has not provided information on any developments regarding the adoption of the Trade Union Bill. Recalling that, according to Articles 5 and 6, only members of the armed forces and the police, as well as public servants engaged in the administration of the State may be excluded from the guarantees set out in the Convention, the Committee requests the Government to provide information regarding the adoption of the Trade Union Bill and firmly expects that the rights afforded by the Convention will be ensured for prison officers, domestic workers and civil servants not engaged in the administration of the State.

Article 4. Measures to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers or their organizations and workers’ organizations. In its previous comments, the Committee had noted that according to section 130 of the Labour Act, in order to be recognized as a sole bargaining agent, a trade union should represent a certain percentage of employees under a contract of service (30 per cent in the case of a single union and at least 45 per cent if the establishment in question employs at least 100 people; in this case, the bargaining agent could be composed of two or more trade unions). The Committee recalled that if no union in a specific negotiating unit meets the required threshold of representativeness to be able to negotiate on behalf of all workers, minority trade unions should be able to negotiate, jointly or separately, at least on behalf of their own members. Having noted that section 131 of the Act provides that an employer may, if he or she wishes, organize a secret ballot to establish a sole bargaining agent, the Committee recalled that the determination of the representative status of organizations for the purposes of bargaining should be carried out in accordance with a procedure that offers every guarantee of impartiality, by an independent body that enjoys the confidence of the parties (see the 2012 General Survey on the fundamental Conventions, paragraph 228). On this basis, in its previous comments, the Committee underlined that the organization of a ballot for determining representativeness should be carried out by the authorities or an independent party upon a request presented by a union. The Committee therefore requested the Government to provide information on any developments in bringing the legislation into conformity with the Convention. The Committee takes note of the Government’s indication that the review of the Labour Act is still ongoing and that this matter would be put before the stakeholders for consideration to be incorporated in the new Bill. Welcoming the Government’s indication, the Committee requests the Government to provide information on the progress achieved in this respect.

Promotion of collective bargaining in practice. While taking note of the information provided by the Government on two company-level collective agreements concluded in the private sector in 2014 and 2017, the Committee requests the Government to inform on the measures taken to promote collective bargaining in all sectors covered by the Convention and to provide information on the number of collective agreements concluded and in force in the country, the sectors concerned and the number of workers covered by these agreements.

The Committee hopes that the Government will make every effort to take the necessary action in the near future.