Definitive Report - Report No 375, June 2015

Case No 2794 (Kiribati) - Complaint date: 17-JUN-10 - Closed

Allegation: The complainant organization alleges the infringement of the right to strike in the education sector

1. 372. The Committee last examined this case at its October 2013 meeting, when it presented an interim report to the Governing Body [370th Report, paras 456–464 approved by the Governing Body at its 3l9th Session (October 2013)].
2. 373. The Government sent its observations in a communication dated 31 March 2015.
3. 374. Kiribati has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

1. 375. In its previous examination of the case, the Committee made the following recommendations [see 370th Report, para. 464]:
   • (a) The Committee deeply regrets that, despite the time that has elapsed since the presentation of the complaint, the Government has once again not replied to the complainant’s allegations, even though it has been requested several times, including through an urgent appeal. The Committee urges the Government to be more cooperative in this case and strongly encourages the Government to seek technical assistance from the Office.
   • (b) The Committee urges the Government to provide detailed information in reply to the allegations that the Minister of Labour declared the strike even though the KUT complied with all the prerequisites to declare a strike under the applicable laws.
   • (c) The Committee further urges the Government to provide detailed information without delay in relation to the allegations of threats and intimidation by the Ministry of Education during the strike, to the effect that failure to return to work would lead to the dismissal of the strikers, as well as the allegations concerning sanctions and the dismissal of members of the KUT for the strike action. It urges the Government to take the necessary measures to ensure that any worker who has been dismissed for the exercise of legitimate strike action is immediately reinstated in his or her post, with payment for lost wages and that any sanctions taken against them are lifted.
   • (d) The Committee requests the Government and the complainant to indicate the status of the negotiations between the Ministry of Education, the Public Service Office and the KUT and to indicate whether a new collective bargaining agreement has since been signed.

B. The Government’s reply

1. 376. In its communication dated 31 March 2015, the Government indicates that in respect of the issue of legality of the strike initiated by the Kiribati Union of Teachers (KUT), the Minister of Labour sent the advice that the procedure to consider their dispute had not yet been exhausted given that the Ministry of Education and Public Service Office (PSO) were still progressively reviewing all the items proposed in the Collective Bargaining Agreement (CBA). Despite this, the KUT continued to believe that the time limit had lapsed and that the procedure to resolve their dispute under the provisions of the Industrial Relations Code (IRC) had been exhausted. While the KUT had appealed the matter of the legality of the strike action to the High Court (heard on 22 November 2011) and later to the Court of Appeal (heard on 10 August 2012), the decisions in both these cases (copies of the courts decisions annexed the Government’s reply) confirmed that the teachers’ strike was illegal.
2. 377. As regards the allegations of threats and intimidation by the Ministry of Education during the strike, the Government indicates that: (1) there was no evidence of such allegations and as the teachers strike took place during the exam week, retired teachers were engaged to fill the gap; (2) after the strike most teachers were permitted to return to work and the Ministry of Education resumed payment of their wages; (3) the strike leaders that were dismissed on grounds of illegal strike were all reinstated after appealing to the Public Service Commission; and (4) there were no sanctions imposed against teachers who engaged in the strike.
3. 378. With respect to negotiations between the Ministry of Education, the PSO and the KUT, the Government indicates that a collective bargaining agreement is yet to be reached and signed, however the Ministry of Education and the PSO are still considering proposals for a CBA by the KUT. The Government also indicates that, while being aware of KUT’s right to bargain collectively under section 41 of the IRC, including for public servants engaged under national conditions of service (such as teachers), its obligations under the IRC do not extend to concluding a collective bargaining agreement but rather just to engaging in bargaining for one, and points out that there is no history or practice of collective bargaining in Kiribati as the terms and conditions of employment for all public servants have instead been prescribed by way of a system of National Conditions of Service or occasional promulgations by the Government. Therefore in the Government’s view, entering into a collective bargaining agreement with KUT may have significant implications for the regulation of terms and conditions of employment for all other public servants and consequently careful consideration needs to be given to this matter. Moreover, it is likely that technical assistance may be required to support all parties to engage in collective bargaining and preliminary discussions have been undertaken with the ILO Suva office in this regard.
4. 379. Lastly, the Government indicates that it is currently engaged in a process of labour law reform to improve the application of Conventions Nos 87 and 98 and hopes that a legislative structure more supportive of and conducive to collective bargaining will soon be adopted.

C. The Committee’s conclusions

1. 380. The Committee recalls that this case concerns allegations of infringement of the right to strike of the KUT by the Government and acts of anti-union discrimination in connection with a strike that took place from 4 to 7 December 2009.
2. 381. With respect to the legality of the strike, the Committee notes the Government’s indication that the Minister of Labour had advised the KUT that the procedure to consider their dispute had not yet been exhausted given the fact that the Ministry of Education and the PSO were still reviewing all the proposed items in the CBA. It also notes that the Government refers to the decisions rendered by the High Court and the Court of Appeal wherein they both determined that the strike was illegal.
3. 382. Furthermore, as concerns the alleged threats and intimidations made by the Minister of Education during the strike, the Committee takes note of the Government’s statement that: (1) there was no evidence of such allegations and as the teachers strike took place during the exam week, retired teachers were engaged to fill the gap; (2) after the strike most teachers were permitted to return to work and the Ministry of Education resumed payment of their wages; (3) the strike leaders that were dismissed on grounds of illegal strike were all reinstated after appealing to the Public Service Commission; and (4) there were no sanctions imposed against teachers who engaged in the strike. Lastly, the Committee notes the Government’s indication that no CBA has been signed due in part to the fact that collective bargaining has no history and is not practiced in Kiribati. Entering into a collective bargaining agreement with KUT requires careful consideration as it may have significant implications for the regulation of terms and conditions of employment for all other public servants. Preliminary discussions have taken place with the ILO Suva Office for the provision of technical assistance to support the capacity of the parties to engage in collective bargaining.
4. 383. In respect of the legality of the strike, the Committee observes that the Court rulings found that the strike declaration by the KUT was procedurally flawed, failing to be in conformity with the relevant provisions of the IRC. Section 10(1) of the IRC provides that where the Minister has taken a step under section 9(1) and is informed by any party to the dispute that settlement of the dispute has not been effected and is satisfied that the dispute has not in fact been settled, he or she may within 7 days of being so informed inform the parties or their representatives that he or she intends to take a further step under section 9(1). Section 9(1) states that the Minister shall consider every trade dispute of which a report has been made to him in accordance with section 7 and may take any one or more of the following steps as seem to him most expedient for promoting a settlement of the dispute: (a) where he is of the opinion that any appropriate machinery for the settlement of trade disputes which may exist otherwise than by virtue of this Code has not been made use of or sufficient use of by the parties to the dispute, refer the dispute back to the parties for negotiation or further negotiation and settlement through that machinery; (b) refer the dispute to the Registrar under section 7; (c) in any event refer the dispute back to the parties and if he thinks fit make proposals to the parties or to any of them upon which a settlement of the dispute may be negotiated by them; (d) refer the dispute to a board of inquiry under section 18; and (e) refer the dispute to the Income Commission under section 19.
5. 384. According to the Courts, the letter of 9 October 2009 which KUT argued was the notification of the failure to settle the dispute to the Minister of Labour cannot be considered to be in compliance with section 10(1) in light of the fact that on 6 October 2009 KUT had written to the Minister of Education proposing a negotiation date – 21 October 2009. Therefore, for KUT to claim on 9 October that the negotiation was ineffective would have been premature as another round of negotiations had yet to take place between the parties; it should have waited for the result of the negotiation of 21 October 2009. The Courts therefore determined that the procedures for settlement were not exhausted, thus rendering the strike unlawful.
6. 385. For its part, the Committee notes that pursuant to section 27 of the IRC a strike shall not be unlawful if: (a) 21 days have elapsed since the date on which the report of the trade dispute in furtherance of which the strike has taken place was made to the Minister or Registrar in accordance with section 7; and (b) the Minister has taken no step under section 9(1) or if he has taken such a step his decision has not been communicated to the parties to the dispute or to their representatives in accordance with section 9(2); or (c) the Registrar has taken no step under section 8(1) or if he has taken such a step his decision has not been communicated to the parties to the dispute or to their representatives in accordance with section 8(2). The Committee notes that on 15 September 2009 a log of claims was submitted to the Minister and was subsequently followed by another letter dated 24 September 2009 from the union formally reporting a trade dispute to the Minister under section 7(1) of the IRC. On 2 October 2009, the Minister of Labour wrote to the union referring the matter back to the parties and calling for further dialogue between them before addressing the issue as a trade dispute to which the union responded through a letter dated 9 October 2009 that this avenue of negotiation did not work and that it had complied with the provisions of section 7 on reporting trade disputes. On 3 November 2009, the union informed the Minister that in accordance with section 10(2) the procedures prescribed by the IRC for the settlement of trade disputes were deemed exhausted as the settlement of the dispute had not been effected and the Minister had failed to inform the Union of his intention to take a further step under section 9(1) or failed to take that step within 7 days. In communications dated 5 and 6 November 2009 addressed to the union, the Minister recalled that he had already referred the matter back to the parties on 2 October 2009 for further negotiations in line with section 9(1)(a) of the IRC and reiterated the need for the parties concerned to sit together to discuss the matter before he could take any further step.
7. 386. As regards the dispute resolution procedure set out in sections 8(1) and 9(1) of the IRC, the Committee recalls that the Committee of Experts on the Application of Conventions and Recommendations had previously observed that there are no specific time limits for the exhaustion of conciliation proceedings and that sections 8(1)(a), (b), (c) and 9(1)(a) give the Registrar and the Minister the power to prolong the negotiation, conciliation and settlement procedure at their discretion, without any fixed time limits (or even refer to compulsory arbitration (sections 7,8,9,12 and 14)), while according to section 27(1), a strike which takes place before the exhaustion of procedures prescribed for the settlement of trade disputes, shall be unlawful.
8. 387. Recalling that the conciliation and mediation machinery should have the sole purpose of facilitating bargaining and should not be so complex or slow that a lawful strike becomes impossible in practice or loses its effectiveness, the Committee notes the recent Government indication to the Committee of Experts that a shortened time frame for the Registrar’s response to an employment dispute report is proposed in the framework of the new Draft Employment and Industrial Relations Code 2013 (draft 2013 Code). The Committee requests the Government, in light of its ratification of Conventions Nos 87 and 98, to provide a copy of the draft 2013 Code to the Committee of Experts.
9. 388. Noting the Government indication that most teachers were permitted to return to work after the strike, the dismissed strike leaders were all reinstated and no sanctions were imposed on teachers that had engaged in the strike, the Committee observes that the only remaining outstanding matter is the question of the need to promote collective bargaining in the sector. In this regard, the Committee regrets that no CBA has been signed in the education sector nearly six years after the strike occurred. It observes that the Government has indicated that there is no collective bargaining history in Kiribati and that all parties involved need assistance in building their capacity in this regard. Indeed the specific case before it would appear to confirm a need for capacity building in relation to collective bargaining for all parties. Noting further that a labour law reform has been undertaken by the Government to improve the application of Conventions Nos 87 and 98, and welcoming its engagement in discussion with the ILO to promote collective bargaining, the Committee invites the Government to avail itself of ILO technical assistance with a view to developing, in consultation with the social partners, a collective bargaining framework appropriate to the national context, combined with capacity building for all parties, which would give full effect in law and in practice to Article 4 of Convention No. 98 ratified by Kiribati.

The Committee’s recommendations

1. 389. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) With respect to the dispute resolution procedure, the Committee notes that a shortened time frame for responding to an employment dispute report is proposed in the framework of the new Draft Employment and Industrial Relations Code 2013. The Committee requests the Government, in light of its ratification of Conventions Nos 87 and 98, to provide a copy of the draft to the Committee of Experts on the Application of Conventions and Recommendations.
   • (b) As regards collective bargaining, the Committee invites the Government to avail itself of ILO technical assistance with a view to developing, in consultation with the social partners, a collective bargaining framework appropriate to the national context, combined with capacity building for all parties, which would give full effect in law and in practice to Article 4 of Convention No. 98 ratified by Kiribati.