Informe provisional - Informe núm. 362, Noviembre 2011

Caso núm. 2794 (Kiribati) - Fecha de presentación de la queja:: 17-JUN-10 - Cerrado

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

1. 1123. The complaint is contained in a communication of the Kiribati Trade Union Congress (KTUC) dated 17 June 2010.
2. 1124. The Government indicated in a communication dated 22 July 2010, that it was currently reviewing the complaint and would soon forward its position and observations as required.
3. 1125. Since there has been no further reply from the Government, the Committee has been obliged to postpone its examination of the case on three occasions. At its May–June 2011 meeting [see 360th Report, para. 5], the Committee made an urgent appeal to the Government indicating that, in accordance with the procedural rules set out in paragraph 17 of its 127th Report, approved by the Governing Body (1972), it could present a report on the substance of the case at its next meeting, even if the requested information or observations had not been received in time. To date, the Government has not sent any information.
4. 1126. 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. The complainant’s allegations

1. 1127. In its communication dated 17 June 2010, the KTUC alleges that the Government violated the right to strike of the Kiribati Union of Teachers (KUT) by declaring its four-day peaceful strike, involving more than 200 teachers from 4 to 7 December 2009, unlawful and, consequently, unfairly dismissed and sanctioned its members following this strike.
2. 1128. The KTUC alleges that the trade dispute, between the Ministry of Education (MOE), the Public Service Office (PSO) and the KUT, that led to the strike, concerned the urgent need of the union to introduce a new separate Collective Bargaining Agreement (CBA) aimed at achieving and enhancing both the effective quality of the terms and conditions of employment for teachers and the effective quality and standard of the teaching profession.
3. 1129. According to the KTUC, the strike of the KUT was lawful since it followed all the legal requirements of the Industrial Relations Code (IRC): (i) the trade dispute was officially submitted to the Minister of Labour by letter on 24 September 2009 (section 7(1) IRC); (ii) on 2 October 2009, the Secretary, on behalf of the Minister, decided, under section 9(1)(a) IRC, to refer the dispute back to the parties for further negotiation; (iii) the KUT immediately, on 9 October 2009, informed the Minister that the current avenue did not work and requested the Minister if it would take further action under section 9(1), as provided by article 10 IRC; (iv) the Minister did not inform the KUT within the seven days’ delay that he intended to take a further step under section 9(1) (section 10(2) IRC); (v) according to section 10(2) IRC, the procedures prescribed by the IRC for the settlement of trade disputes were therefore deemed to be exhausted and the KUT was therefore entitled to go on strike, as permitted by sections 27(1) and (2) IRC.
4. 1130. In an effort to come to an agreement, and while the procedures prescribed by the IRC for the settlement of trade disputes were already deemed to be exhausted, the KUT agreed to meet with the MOE and the PSO on 10 and 17 November 2009. No agreement was reached and the KUT reminded the parties during these meetings that the procedure for settlement of the trade dispute has already been exhausted. In a final effort to settle, and while it was not a prerequisite under the IRC, the KUT sent a letter on 25 November 2009 to President Anote Tong requesting him to confirm in writing by 27 November 2009 his final decision and that failing to respond by that time meant that the KUT would be forced to take lawful strike action to promote further settlement by virtue of the IRC.
5. 1131. The KTUC further indicates that the Minister of Labour declared the strike unlawful and that following that decision, immediate sanctions were taken by the Minister of Education (employing ministry) and the PSO against the strikers: (i) deductions of wages during the four-day strike, without awaiting court prosecution by the Minister and final outcome of such court decision; (ii) dismissal and refusal to re-employ some of them; and (iii) disciplinary actions in the form of penalties because of their absence from work during the strike; the whole in contravention to the Trade Unions and Employer Organisations Act and the National Conditions of Service applicable to these workers. The KTUC also indicates that during the strike, the Minister of Education threatened and intimated the striking members of the KUT that failure to return to work would lead to their dismissal.
6. 1132. According to the KTUC, the Minister has unfairly and arbitrarily declared the strike unlawful without an independent body which had the confidence of the union involved and with no indication on what specific legal provisions they established their decision. The KTUC indicates that the KUT recalled its members to work on 7 December 2009 after what it thought to be an immediate successful discussion with President Anote Tong who had finally agreed to the urgent need to settle the trade union dispute with the KUT.

B. The Committee’s conclusions

1. 1133. The Committee regrets that, despite the time that has elapsed since the presentation of the complaint, the Government has not replied to the complainant’s allegations, even though it has been requested several times by the Committee, including through an urgent appeal, to present its comments and observations on this case. The Committee urges the Government to be more cooperative in this case and invites the Government to seek technical assistance from the Office.
2. 1134. Hence, in accordance with the applicable procedural rules [see 127th Report, para. 17, approved by the Governing Body at its 184th Session (1972)], the Committee is obliged to present a report on the substance of the case without being able to take account of the information which it had hoped to receive from the Government. The Committee reminds the Government that the purpose of the whole procedure established by the International Labour Organization for the examination of allegations of violations of freedom of association is to ensure respect for trade union rights in law and in practice. The Committee is confident that, while this procedure protects governments against unreasonable accusations, they must recognize the importance of formulating, for objective examination, detailed replies concerning allegations brought against them [see First Report of the Committee, para. 31].
3. 1135. The Committee notes that this complaint concerns allegations of infringement of the right to strike of the KUT by the Government and acts of anti-union discrimination in connection with this strike which took place from 4 to 7 December 2009.
4. 1136. The Committee notes that according to the complainant, while the KUT complied with all the prerequisites to declare a strike under the applicable laws, the Ministry of Labour declared it unlawful and the Ministry of Education and the PSO immediately imposed sanctions (including the deduction of wages during the period of the strike), dismissed several employees who participated in the strike and refused to re-employ them. The Committee further notes that according to the complainant, the strike was declared unlawful by the Government, a party to the trade dispute, and that no written decision was ever handed to the KUT indicating the reasons for considering it illegal. The Committee finally notes that during the strike, the Minister of Education allegedly threatened and intimated the striking members of the KUT that failure to return to work would lead to their dismissal.
5. 1137. The Committee recalls that the responsibility for declaring a strike illegal should not lie with the Government, but with an independent body which has the confidence of the parties involved. Final decisions concerning the illegality of strikes should not be made by the Government, especially in those cases in which the Government is a party to the dispute [See Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, paras 628 and 629]. The Committee urges the Government to provide detailed information without delay in reply to these allegations.
6. 1138. As concerns the alleged threats and intimidation made by the Minister of Education during the strike, to the effect that failure to return to work would lead to the dismissal of the strikers, and the sanctions subsequently imposed, and the dismissal of members of the KUT for the strike action, the Committee recalls that imposing sanctions on unions for leading a legitimate strike is a grave violation of the principles of freedom of association. No one should be penalized for carrying out or attempting to carry out a legitimate strike. The use of extremely serious measures, such as dismissal of workers for having participated in a strike and refusal to re-employ them, implies a serious risk of abuse and constitutes a violation of freedom of association. However, salary deductions for days of strike give rise to no objection from the point of view of freedom of association principles. In addition, complaints against acts of anti-union discrimination should normally be examined by national machinery which, in addition to being speedy, should not only be impartial but also be seen to be such by the parties concerned, who should participate in the procedure in an appropriate and constructive manner [see Digest, paras 654, 658, 660, 666 and 828]. The Committee urges the Government to provide detailed information without delay in relation to these allegations and requests the Government to take the necessary measures to ensure that any worker who has been dismissed for the exercise of legitimate strike action is reinstated in his or her post with payment for lost wages and that the sanctions taken against them are lifted.
7. 1139. With regard to the conclusion of the new CBA, the Committee notes that according to the KTUC, the KUT recalled its members to work on 7 December 2009 after what it thought to be an immediate successful discussion with President Anote Tong who had agreed to the urgent need to settle the trade union dispute with the KUT. The Committee requests the Government and the complainant to indicate the status of the negotiations between the MOE, the PSO and the KUT and to indicate whether a new CBA has since been signed.

The Committee's recommendations

1. 1140. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee regrets that, despite the time that has elapsed since the presentation of the complaint, the Government has not replied to the complainant’s allegations, even though it has been requested several times, including through an urgent appeal, to present its comments and observations on this case. The Committee urges the Government to be more cooperative in this case and invites the Government to seek technical assistance from the Office.
   • (b) The Committee requests the Government to provide detailed information in reply to the allegations that the Minister of Labour declared the strike illegal 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 made by the Minister 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, and requests the Government to take the necessary measures to ensure that any worker who has been dismissed for the exercise of legitimate strike action is reinstated in his or her post, with payment for lost wages and that the sanctions taken against them are lifted.
   • (d) The Committee requests the Government and the complainant to indicate the status of the negotiations between the MOE, the PSO and the KUT and to indicate whether a new CBA has since been signed.