Informe provisional - Informe núm. 84, 1965

Caso núm. 415 (Reino Unido de Gran Bretaña e Irlanda del Norte) - Fecha de presentación de la queja:: 02-OCT-64 - Cerrado

1. 41. The International Federation of Commercial, Clerical and Technical Employees, on 2 October, 24 November and 15 December 1964, submitted various communications received from the Commercial, Technical and Allied Workers' Union of St. Vincent, which contain a series of allegations respecting the violation of freedom of association in St. Vincent. These communications were forwarded to the Government of the United Kingdom, which transmitted the observations of the Government of St. Vincent dated 20 January 1965.
2. 42. The Government of the United Kingdom has ratified the Right of Association (Agriculture) Convention, 1921 (No. 11), the Right of Association (Non-Metropolitan Territories) Convention, 1947 (No. 84), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and has declared that the provisions of those Conventions are applicable without modification to St. Vincent. The United Kingdom Government has also ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and has declared it applicable with modifications to St. Vincent. These modifications relate to the composition of the committee of management of a trade union, the taking of decisions by secret ballot in certain cases, and the uses to which trade union funds may be put.

A. A. The complainants' allegations

1. 43. In its first communication the Commercial, Technical and Allied Workers' Union claims that it represents the majority of employees in the Public Health Department in the City of Kingstown and at the Mental Hospital. According to the law these two government undertakings fall under the heading of essential services in which freedom to strike is somewhat curtailed. Nevertheless, provision is made in Ordinance No. 4 of 1952 for the Administrator appointed by Her Majesty's Government in London to set up tribunals for the settlement of disputes, on which " organisations representing the workers and employers concerned " are to be represented. The complainants go on to say that since 16 September 1963 they have been seeking to be recognised by the Government as the collective bargaining representative of the aforementioned workers. Despite the approaches made for this purpose to various Ministers, to the Administrator himself and to the Secretary of State for the Colonies in London, their efforts have so far been without success. Instead, both the Chief Minister for the Crown and the Minister of Social Services, who is responsible for public health, have attacked the union and have threatened the employees of the institutions mentioned above with victimisation. On the other hand, the Chief Minister stated at a political meeting that as long as his Government remained in office it would not recognise the union, and that any attempt by the workers to strike would result in their services being terminated. The same Chief Minister is the leader of a government-controlled union which he is seeking to force upon employees of government institutions in an effort to rival with the complainant union.
2. 44. In its communication of 24 November 1964 the International Federation of Commercial, Clerical and Technical Employees forwards new communications received from the complainant union of St. Vincent. According to these the Government, upon receipt of the application from the Commercial, Technical and Allied Workers' Union for recognition as representative of the workers in certain institutions, decided, on the contrary, to recognise its own union as the bargaining agent for the workers, without the approval of the workers concerned. According to the report in a local newspaper, a clipping of which is enclosed, at the meeting at which recognition was granted to the Federated Industrial and Agricultural Workers' Union (F.I.A.W.U.) this union was represented by its President-General, Mr. E. T. Joshua, who was accompanied by two other trade union officers, whereas the representatives of the Government were the same Mr. E. T. Joshua, in his capacity as Chief Minister, the Minister of Social Services and the Senior Medical Officer.
3. 45. In their communication of 15 December 1964 the complainants submit further information respecting their complaint. This information deals further with the approaches made to obtain representative status for the union. On 9 October 1963 the Administrator was requested to use his good offices to ensure that the complaint received proper attention. In reply he expressed his confidence that the Ministry of Labour would discharge its obligations under the law. Further requests were made in subsequent weeks, but the problem remained unsolved. The complainant union also had a meeting with the Minister of Labour and asked him to intervene. This Minister pointed out that in the case in question the employer was the Minister for Social Services and that the Ministry of Labour could act only at the request of both parties (employer and workers). The same position was taken by the Commissioner of Labour, who was informed of the situation. On 17 January the union received a letter from the Ministry of Social Services stating that the Ministry of Labour had been requested to take the necessary action and that in future the matter should be pursued with that Ministry. Despite this and despite the various requests made to the Ministry of Labour for its intervention, the only reply received by the complainants was a verbal one, to the effect that the labour authorities had not been requested to act. On 27 January 1964 a fresh application was made for the recognition of the union as representative of the employees of the Mental Hospital, but no reply was received. Instead, the competent Minister visited the institution, threatened the workers and forbade them to join the complainant union. The final attempt to obtain recognition was made in September 1964, but the union received no satisfaction whatever.
4. 46. In its reply of 20 January 1965 the Government of the United Kingdom transmits the observations of the Government of St. Vincent and points out that the latter territory enjoys internal autonomy and that the questions to which the allegations relate are entirely the concern of the Government of St. Vincent. The latter Government cites two separate points with reference to the allegations concerning the right to organise and the recognition by the authorities of the complainant union.
5. 47. On the one hand, the Government claims that the Commercial, Technical and Allied Workers' Union of St. Vincent was granted provisional registration on 22 June 1963, with a direction by the Court that its records and accounts be kept in the proper and orthodox form. On 11 December 1963 the union applied for final registration, which was refused by the Registrar, since the records and accounts were not kept so as to ascertain whether the union had attained " a reasonable degree of efficiency and organisation in the management of its affairs ", as Ordinance No. 30 of 1954 requires. On 23 March 1964 an application was submitted for the extension of provisional registration and this was granted. After repeated requests, the Registrar succeeded in persuading the union to submit a statement of accounts on 17 September 1964 for the year ending 31 May 1964. As a result, an independent auditor was appointed to examine the union's books. The auditor reported that the union's records were not kept in a manner which enabled him to audit them. As a result, there is no proper proof of the union's financial standing and no documentary verification of its membership.
6. 48. The Government goes on to say that on 16 September 1963 the complainant union did in fact apply to be recognised as the collective bargaining agent for the workers concerned; there is, however, no evidence that anything was produced to determine this issue. In October and December 1963 the Administrator requested the Minister of Labour to deal with the matter as early as possible. In January 1964 the Minister of Labour had talks with the representative of the complainant union, and on 14 January the latter submitted a written request to the Labour Commissioner to intervene and " by a poll or any other free and equitable method " to certify that the union represented the majority of the workers in the government establishments already mentioned. In reply to this request the Labour Commissioner stated that he could intervene to take a poll only when requested to do so by the employer and by the union. Subsequently, since the Commercial, Technical and Allied Workers' Union had failed to put its affairs in order, as the law requires, it was not granted an extension of its provisional registration, which expired on 15 November 1964. Consequently, the union is not now registered.
7. 49. With regard to the recognition of F.I.A.W.U, the Minister of Social Services established that it represented a majority of the workers in the Lewis Punnett Home, the Colonial Hospital and its extension, and the Leper Asylum. As this union applied for recognition as the bargaining agent for the workers at these institutions, this was granted by the Government. Nevertheless, this union neither claimed nor was granted recognition as the bargaining agent for workers at the Public Health Department in Kingstown and/or workers at the Mental Hospital.
8. 50. The Committee notes the statement made by the United Kingdom Government to the effect that, owing to the internal autonomy enjoyed by St. Vincent, the questions relating to the allegations submitted fall within the competence of the Government of the said territory. At the same time the Committee finds it necessary to point out that the United Kingdom is still responsible for St. Vincent's international relations.
9. 51. Summing up the allegations of the complainants and the arguments of the Government respecting the right to organise and collective bargaining, the Committee observes that the former claim to have requested recognition as the bargaining agent for the workers at the Public Health Department in Kingstown and at the Mental Hospital. Despite the approaches made to various authorities, particularly to the Ministry of Social Services, who is the direct employer in the present case, the Government representative of the Crown, the Chief Minister and the Minister of Labour, this recognition was not obtained. Both the Minister of Labour and the Labour Commissioner pointed out that they could intervene only if both parties (employer and workers) so requested. At the same time the Chief Minister is also president of a trade union (F.I.A.W.U.) and is alleged to have participated in this double capacity in an agreement concluded between the authorities and the trade union in question respecting the recognition of the latter as the bargaining agent for the hospital workers. In addition, both the Chief Minister and the Minister of Social Services and other officials are alleged to have exerted pressure on the workers to join F.I.A.W.U and to leave the complainant union. The Government maintains that this latter union obtained only provisional registration which, after being extended, finally expired on 15 November 1964, the Registrar having refused final registration because the union had failed to comply with the statutory requirements in this behalf. With regard to the recognition of the complainant union as bargaining agent, the Labour Commissioner can only intervene to take a poll in order to certify that the union represents a majority of the workers when requested by both parties to do so. F.I.A.W.U neither claimed nor was granted recognition as the bargaining agent for the workers at the Public Health Department in Kingstown and at the Mental Hospital.
10. 52. Regarding the recognition of the Commercial, Technical and Allied Workers' Union of St. Vincent by the Government, in its capacity as employer, as a bargaining agent, the Committee notes that from September 1963 to September 1964, during which period the union made repeated applications for such recognition, it was provisionally registered and consequently enjoyed the right to bargain collectively in accordance with the provisions of Ordinance No. 30 of 1954. The Government also points out that on 14 January 1964 the union requested the Labour Commissioner to certify " by a poll or any other free and equitable method " that it represented a majority of workers at the government establishments concerned. This request was refused by the Labour Commissioner due to the fact that the employer, i.e. the Government itself, had not been party thereto.
11. 53. It was only on 15 November 1964 that provisional registration expired, final registration having been refused because the Registrar considered that the union had not attained a " reasonable degree of efficiency and organisation in the management of its affairs ", as Ordinance No. 30 of 1954 prescribes. Even though the Government, in reply to the complaint respecting the non-recognition of the union as bargaining agent, submits various items of information respecting the situation in which the union found itself with respect to registration, whether provisional or final, the Committee feels that this is irrelevant to the right to bargain, which the union enjoyed in virtue of provisional registration.
12. 54. In this connection the Committee must point out that Article 3 of the Right of Association (Non-Metropolitan Territories) Convention, 1947 (No. 84), provides that all practicable measures shall be taken to assure to trade unions which are representative of the workers concerned the right to conclude collective agreements with employers or employers' organisations. Moreover, Article 4 of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), provides that measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilisation of machinery for voluntary negotiation between employers or employers' organisations and workers' organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements. In a previous case the Committee itself stressed the importance it attaches to the principle that employers, including government authorities in their capacity as employers, should recognise for the purposes of collective bargaining the organisations representative of the workers.
13. 55. In the present case the Government has not denied that the Commercial, Technical and Allied Workers' Union of St. Vincent represented a majority of the workers at the Public Health Department in the City of Kingstown and at the Mental Hospital. Nor has there been any rivalry between trade union organisations with respect to the representation of one and the same category of workers for the purposes of collective bargaining, since F.I.A.W.U has not requested this representative capacity in relation to the aforementioned workers, as the Government itself states.

B. B. The Committee's conclusions

1. 56. On the basis of the information at its disposal the Committee feels that the attitude adopted by the Government of St. Vincent in the present case, by its failure to take the necessary measures to recognise the majority union representing the workers at the Public Health Department and at the Mental Hospital, does not seem to have been consistent with the principles contained in Conventions Nos. 84 and 98, which advocate the collective bargaining procedure as a means of fixing conditions of employment.
2. 57. With regard to the registration of the Commercial, Technical and Allied Workers' Union of St. Vincent, the Committee observes that Ordinance No. 30 of 1954, which amends the Trade Unions and Trade Disputes Ordinance of 1950, provides that the union seeking registration (which is a necessary condition for the right to operate lawfully as an industrial association) will be provisionally registered for a period which the Registrar may extend at his discretion, and will during this period enjoy all trade union rights, including the right to negotiate. The Registrar will register the union finally if, among other things, he is satisfied that it has attained a reasonable degree of efficiency and organisation in the management of its affairs. The Ordinance of 1950 provides that an appeal shall lie to the Supreme Court from a refusal of the Registrar to grant a trade union provisional or final registration.
3. 58. In the present case the Committee notes that final registration was refused because the Registrar considered that this requirement had not been satisfied by the complainant union. The Committee considers that the provision contained in Ordinance No. 30 of 1954, which allows the Registrar to refuse final registration of a trade union if he considers that the union has not yet attained a reasonable degree of efficiency and organisation in the management of its affairs, gives excessive scope to this official in determining whether registration should or should not be granted to an industrial association. Even though the law permits an appeal to the Supreme Court from the Registrar's decision, the Committee recalls that in such cases the Committee of Experts on the Application of Conventions and Recommendations has pointed out that " the existence of a procedure of appeal to the courts does not appear to be a sufficient guarantee; in effect this does not alter the nature of the powers conferred on the authorities responsible for effecting registration, and the judges hearing such an appeal would only be able to ensure that the legislation had been correctly applied ".
4. 59. The Committee accordingly considers, as it did in a previous case, that the law should contain a clear definition of the specific conditions to be satisfied by trade unions in order to qualify for registration and that specific statutory criteria should be prescribed for the purposes of deciding whether these conditions have been satisfied.
5. 60. The Government has not furnished any observations respecting the coercive measures alleged to have been taken against the workers and the threats made against them owing to their trade union membership. The Committee therefore does not have sufficient data on which to base a judgment and to reach a final conclusion as to these allegations, although it feels bound to recall the importance it has always attached to the provision contained in Convention No. 98 that workers shall enjoy adequate protection against acts of anti-union discrimination in respect of their employment. The consequences of this provision are that the Government must take measures, whenever necessary, to ensure that this protection is effective, which of course implies that the authorities must refrain from any act likely to provoke or have as its object anti-union discrimination against workers in respect of their employment.
6. 61. With regard to interference in trade union organisations the Committee notes that the Chief Minister is at the same time President of the Federated Industrial and Agricultural Workers' Union. According to the complainant union he participated in this double capacity in negotiations which led to the recognition by the Government for the purpose of collective bargaining of the trade union of which he is President. The Government has not denied this in its reply, merely explaining that the Minister of Social Services and another high official were satisfied that the union in question represented the majority of the workers in the institutions concerned. It would therefore seem that the Chief Minister, who is one of the chief authorities of the Government, which in the present case is acting in the capacity of employer, is at the same time the leader of a trade union which represents certain workers in the service of this employer, which thus creates the possibility of interference by the latter in the trade union organisation. A situation of this kind might involve a violation of Article 2 of Convention No. 98, which provides that workers' organisations shall enjoy adequate protection against any acts which are designed to promote the establishment of workers' organisations under the domination of an employer.

The Committee's recommendations

1. 62. In all the circumstances the Committee recommends the Governing Body:
   • (a) with respect to the non-recognition of the Commercial, Technical and Allied Workers' Union of St. Vincent for the purposes of collective bargaining:
   • (i) to draw the Government's attention to the provision contained in Article 3 of the Right of Association (Non-Metropolitan Territories) Convention, 1947 (No. 84), that all practicable measures shall be taken to assure to trade unions which are representative of the workers concerned the right to conclude collective agreements with employers or employers' organisations; and also the provision contained in Article 4 of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), that measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilisation of machinery for voluntary negotiation between employers or employers' organisations and workers' organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements;
   • (ii) to stress the importance it attaches to the principle that government authorities, in their capacity as employers, should recognise for the purposes of collective bargaining the representative workers' organisations; and
   • (iii) to draw the attention of the Government to its view that the attitude adopted by the authorities in the present case in not taking steps to recognise the majority union representing the workers at the Public Health Department and at the Mental Hospital does not appear to have been consistent with the principles contained in Conventions Nos. 84 and 98, which enumerate the procedure of collective bargaining as a means of determining conditions of employment;
   • (b) with respect to the final registration of trade unions:
   • (i) to draw the Government's attention to the desirability of defining clearly in its legislation the specific conditions that trade unions must satisfy in order to qualify for registration and to prescribe specific legal criteria for the purpose of deciding whether they have satisfied such conditions;
   • (ii) to suggest to the Government the possibility of examining in detail the provisions of Ordinance No. 30 of 1954 with a view to deciding what amendments might be introduced in the light of the foregoing conclusions;
   • (c) with respect to the alleged acts of interference, to draw the attention of the Government to its view that the fact that one of the members of the Government is at the same time president of a trade union which represents categories of workers employed by the Government creates a possibility of interference in violation of Article 2 of Convention No. 98, which provides that workers' organisations shall enjoy adequate protection against any acts which are designed to promote the establishment of workers' organisations under the domination of the employer;
   • (d) with respect to the coercive measures alleged to have been applied against workers in connection with their trade union membership, to request the Government to furnish its observations on this aspect of the case; and
   • (e) to take note of the present interim report, it being understood that the Committee will submit a further report when it has received the observations requested from the Government.