Direct Request (CEACR) - adopted 2022, published 111st ILC session (2023)

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

Article 1 of the Convention. Protection against acts of anti-union discrimination.The Committee notes that section 6(1) of the Trade Union Bill stipulates that a person shall not discriminate against an employee or any person seeking employment for exercising any right conferred by the Bill, and that section 6(2) prohibits anti-union dismissals. The Committee observes however that while sections 130, 140 and 141 of the Labour Bill (which reproduce the provisions of sections 83, 91 and 92 of the Labour Act) provide for procedures and sanctions in case of anti-union dismissals, neither the Trade Union Bill nor the Labour Bill explicitly refer to specific procedures or penalties in case of acts of anti-union discrimination affecting workers during recruitment or in their careers, and the only sanction expressly prescribed concerns dismissal. The Committee recalls that the existence of legal provisions prohibiting acts of anti-union discrimination is not enough if they are not accompanied by effective and rapid procedures to ensure their application in practice, and that the effectiveness of such provisions also depends on the sanctions provided, which should be effective and sufficiently dissuasive (see 2012 General Survey on the fundamental Conventions, paragraphs 190 and 193). The Committee therefore requests the Government to indicate if other laws or regulations provide for procedures and sanctions applicable to acts of anti-union discrimination other than dismissal and trusts that the Government will ensure that the legislation provides adequate protection against all acts of anti-union discrimination.

Article 4. Promotion of free and voluntary collective bargaining. The Committee notes that section 53 of the Trade Union Bill provides that if a trade dispute is not resolved after conciliation, a party to the dispute may, under certain conditions and in certain circumstances, refer it to the Industrial Tribunal. Recalling that, under Article 4 of the Convention, provisions allowing a party to interrupt negotiations in order to unilaterally submit the resolution of the dispute to a third party are generally contrary to the principle of free and voluntary collective bargaining, the Committee requests the Government to clarify the situations in which, according to Article 53 of the Trade Union Bill, a party to a collective bargaining dispute would be able to apply to the Labour Court and whether the Court would then be able to substitute itself for the parties in order to unilaterally determine the terms and conditions of work and employment which are the subject of the negotiations.

Articles 4 and 6. Right to collective bargaining of public servants not engaged in the administration of the State.The Committee notes that section 41(1) of the Trade Union Bill provides that the Minister may, after consultations with the Labour Advisory Board, make regulations establishing machinery for determining terms and conditions of employment for any category of employees in the public sector. It further notes that section 41(3) stipulates that the Minister may determine different terms and conditions for certain categories of public employees. The Committee recalls that under Article 6 of the Convention, persons who are employed in the public sector but by their functions are not directly engaged in the administration of the State should benefit from the guarantees provided for in the Convention (see 2012 General Survey, paragraph 172). The Committee requests the Government to amend section 41 of the Trade Union Bill to ensure that all public servants not engaged in the administration of the State are able to negotiate collectively their conditions of work.

The Committee requests the Government to provide information on any steps taken to revise the Trade Union Bill in light of the foregoing, in consultation with the social partners.