Observation (CEACR) - adoptée 2021, publiée 110ème session CIT (2022)

Convention (n° 87) sur la liberté syndicale et la protection du droit syndical, 1948 - Maldives (Ratification: 2013)

The Committee notes the observations of the Maldivian Trade Union Congress (MTUC), received on 26 September 2021, denouncing the absence of a legal framework to enforce the rights guaranteed by the Convention, resulting in the impossibility to freely join trade unions and exercise union activities. The MTUC also alleges threats and interference in union affairs by State authorities. The Committee requests the Government to provide its comments on the MTUC observations.

Legislative framework. In its previous comment, the Committee requested the Government to take the necessary measures to achieve the adoption of the draft Industrial Relations Act and ensure its full conformity with the Convention. The Committee notes the Government’s indication that the adoption of the Industrial Relations Bill has been included in the Government’s Strategic Action Plan 2019-2023 as a priority, that it continues to be reviewed for alignment with international obligations and that it is expected to be sent to the Parliament for final decision and adoption in the near future. The Government states that the Bill provides for registration of workers’ and employers’ organizations, effective mechanisms for resolving industrial disputes and the establishment of a Tripartite Labour Dialogue Forum to foster co-operation on labour issues. The Government further informs that the Associations Bill, which was drafted through a consultative process with the relevant stakeholders and which seeks to align the protection of the right to freedom of association with the principles of the Convention (right to participate in associations, registration, dissolution, etc.) was submitted to the Parliament in October 2019. The Committee notes however the concerns raised by the MTUC in relation to the legislative reform that: (i) despite ILO technical assistance since 2013, the Industrial Relations Bill has not yet been adopted and workers’ associations were not consulted in its elaboration; and (ii) the Associations Bill does not cover trade union formation and trade union rights should be protected in the Industrial Relations Bill. The Committee further notes that the Committee on Freedom of Association (CFA), when examining Case No. 3076 concerning the Maldives: (i) observed with deep concern allegations that the Government’s systematic failure to ensure effective protection of trade union rights both in law and in practice led to a denial of the right to freedom of association to workers in the country, including denial of freedom of assembly, enforced by the police; and (ii) requested the Government to take the necessary legislative and enforcement measures, in consultation with the social partners concerned, to address those allegations and to ensure that protection for trade union rights, in particular the right to freedom of assembly, is fully guaranteed both in law and in practice and referred the legislative aspects of the case to this Committee (see Case No. 3076, 391st Report, October 2019, paragraphs 410 and 412(h); 395th Report, June 2021, paragraphs 282 and 283). In view of the above and recalling that the Industrial Relations Bill and the Associations Bill have been pending adoption for several years, the Committee expects that they will be adopted without delay, following meaningful consultation with workers’ and employers’ organizations, and will address all of the Committee’s observations below so as to ensure their full conformity with the Convention and contribute to the promotion of freedom of association in the country. The Committee invites the Government to continue to avail itself of the technical assistance of the Office, should it so desire, and requests it to provide a copy of the amended laws once adopted.

Pending the adoption of the above Bills and emphasizing the desirability of establishing a comprehensive legislative framework regulating collective labour relations, the Committee has been examining the legislation currently in force, taking into account the legislative proposals indicated by the Government.

Associations Act, 2003

Article 2 of the Convention. Right of workers and employers, without distinction whatsoever, to establish organizations. The Committee previously requested the Government to take the necessary measures to amend section 6(b) of the Associations Act, so as to allow minors who have reached the minimum legal age for admission to employment (16 years) to be able to exercise their trade union rights. The Committee notes the Government’s indication that deliberations are ongoing at the Committee stage of the Parliament to allow minors who have attained the legal age of employment under the Child Rights Protection Act, 2019 to be able to exercise trade union rights under the new Associations Bill. The Committee expects the proposed legislative amendments to ensure that minors who have attained the legal age of employment will be able to exercise their trade union rights.

Right to establish organizations without previous authorization. In its previous comment, the Committee requested the Government to take the necessary measures to amend section 9(a) of the Associations Act to limit the discretionary power of the Registrar to refuse the establishment of an organization. The Committee notes the Government’s statement that section 34(a) of the new Associations Bill obliges the Registrar to accept any names that do not fall within the situations listed in the section and that administrative decisions are subject to judicial review. Observing that the Government does not provide any details as to the permitted grounds for rejecting a proposed name under section 34(a) of the Associations Bill, the Committee expects these to be sufficiently restrictive so as to limit the Registrar’s discretionary power, ensuring that registration is a mere formality and does not amount to a previous authorization contrary to Article 2 of the Convention.

The Committee further requested the Government to take the necessary measures to amend section 37(b) of the Associations Act to ensure that the exercise of legitimate trade union activities is not dependent upon registration and is not subject to penalties. The Committee welcomes the Government’s indication that section 37(b) will be repealed in the new Bill, which does not prohibit the operation of unregistered associations.

The Committee also requested the Government to provide statistics on the number of workers’ and employers’ organizations registered, the sectors and the number of workers covered. The Committee notes that the Government provides a list of registered associations in the social, recreational and sports domains, without however specifying whether some of them are associations of workers and employers, and further indicates that an NGO portal is being developed to enhance data collection and extraction. The Committee observes that the MTUC contends that the Government does not have a mechanism to collect data on workers’ organizations and that the NGO portal will not solve this issue. The Committee encourages the Government to take the necessary measures to enable collection of data on the number of workers’ and employers’ organizations registered in the country, the sectors in which they are active and the number of workers covered, and requests it to provide statistics in this regard.

Right of workers and employers to establish organizations of their own choosing. In its previous comment, the Committee requested the Government to provide information on whether workers and employers, engaged in more than one occupation or sector, could join more than one organization. The Committee welcomes the Government’s clarification that they can and that there are no legislatives bars to such activities.

Article 3. Freedom to elect representatives. The Committee previously requested the Government to take the necessary measures to amend section 24 of the Associations Act so as to ensure that minors who are eligible for employment are also eligible for trade union office. The Committee notes the Government’s indication that deliberations are ongoing to allow minors eligible for employment to exercise trade union rights under the new Associations Bill. The Committee expects the proposed legislative amendments to ensure that minors who have attained the legal age of employment will be able to exercise their trade union rights, including the right to be eligible for trade union office.

The Committee further notes that the Government informs that under the new Associations Bill, a person cannot become a member of the executive committee of an association if they are already an executive committee member of another association. Recalling that such restrictions can unduly infringe the right of organizations to elect representatives in full freedom by preventing qualified persons from holding trade union office if they are already engaged in a similar position in another association, the Committee requests the Government to take the necessary measures to review the relevant provisions of the Associations Bill so as to allow persons to hold trade union office in more than one association, subject only to the statutes of the organizations concerned.

Right to organize administration and activities and to formulate programmes. In its previous comment, having noted that the Associations Act contained a number of provisions which regulate in detail the internal functioning of associations (sections 5(f), 10, 11, 14(b), 18, 23 and 31), the Committee requested the Government to take the necessary measures to amend these provisions. The Committee welcomes the Government’s indication on the proposed amendments to sections 10 and 11 (changes to the association’s name), 18 (changes to an association’s governing regulations) and 31 (voluntary winding-up of associations), which remove detailed regulation and limit the discretionary powers of the Registrar in relation to some aspects of the internal functioning of associations. Observing, however, the Government’s statement that sections 5(f) (stipulating that any money or property of the association after its dissolution will be given away to another non-profit association or to a government-approved charity) and 23 (providing detailed instructions on how to address debts of an association) have not been substantively changed, the Committee reiterates its request in this regard.

The Committee further requested the Government to indicate the necessary prerequisites for a workers’ or employers’ association to be able to receive foreign assistance in line with section 22 of the Associations Act. The Committee notes the Government’s clarification that it is section 34 of the Associations Regulation, 2015 that stipulates the prerequisites to receive foreign assistance by associations (approval from the Registrar before seeking and accepting assistance from foreign parties and submission of documents with details on the party seeking foreign assistance, the party providing assistance, as well as on the amount and purpose for which it is being sought). The Government adds that these prerequisites are being amended through the new Associations Bill but does not specify in what manner. Recalling that provisions requiring approval by the authorities of financial assistance from abroad can result in control over the financial management of organizations and restrictions on their right to organize their administration and activities, which control and restrictions are incompatible with Article 3 of the Convention, the Committee expects the Government to ensure that the amendments proposed by the Associations Bill will be fully in line with the Convention.

Article 4. Administrative and judicial dissolution. In its previous comment, having observed that under sections 32(a) and 33 of the Associations Act, an association could be dissolved by the Registrar or the courts for overly broad reasons, the Committee requested the Government to take the necessary measures to amend these provisions. The Committee notes the Government’s indication that under Chapter 10 of the Associations Bill the Registrar will be required to follow the procedure stipulated in the relevant sections and will have to apply to court to obtain an order to dissolve an association, but observes that the Government does not provide any details on the actual procedure or on the grounds on which such a dissolution may be requested. Recalling once again that dissolution of a workers’ or employers’ organization is an extreme measure with serious consequences upon the right to organize which should only be used in limited circumstances, the Committee requests the Government to ensure that the proposed amendments will only allow dissolution of an association following a judicial decision on the basis of precise and predetermined criteria.

Article 5. The right to form federations and confederations. The Committee previously requested the Government to take the necessary measures, including through the adoption of specific legislative provisions, to ensure that workers’ and employers’ organizations can form federations and confederations, and affiliate with international organizations. The Committee notes that according to the Government, while there are no specific legislative provisions governing the issue, there are no legal barriers to forming federations or confederations or to affiliate with international organizations. Observing, however, the MTUC concerns that neither the Government nor the judicial system recognize federations and confederations of unions or international affiliation and further observing the Government’s indication that the issue could be considered for inclusion in the draft Industrial Relations Bill, the Committee requests the Government to include in the ongoing reform process the consideration and adoption of any necessary legislative provisions and other measures to ensure that workers’ and employers’ organizations can, both in law and in practice, form federations and confederations, and affiliate with international organizations.

Associations Regulation, 2015

The Committee notes that the Government provides a copy of the Associations Regulation, which currently implements the Associations Act, and observes that it contains a number of provisions which are not in line with the Convention and need amending: sections 4(a) (obligatory registration), 4(c) and 24(ii) (founding members and members of the executive committee must be 18 years old); 4(d) (prohibition to have any criminal record for the person registering the association); 13(a) (detailed regulation of the name of the association); 15(d) (penalty for use of a seal, flag, colour or motto without registration); 17(b)(vi) (detailed regulation of the financial assets); 19(a) (restrictions as to the objectives of the association); 23(a) (only nationals can be elected as President, Secretary and Treasurer); 24(i) (members of the executive committee must be members of the association); 30(a) (detailed regulation of annual reports and accounts); 36(a) (audit by government-accredited audit firm for certain associations); 38 (police inspection with court order if activities undermine societal harmony); 40(ii), 42 and 43 (dissolution of an association by the Registrar or the courts for overly broad reasons); 41 (requirement of a special resolution for voluntary dissolution); 44(a)(iii) and 45(a) (detailed regulation on the use of assets after dissolution), as well as sections 12(a)-(b), 14(a), 16(b), 20, 26(c), 29, 34(a), 35(b), 37(a) and 39(a) providing for excessive discretionary power of the Registrar in relation to associations’ establishment, administration, activities and suspension. In line with the Committee’s requests and expectations above, and considering that the Associations Act is being amended, the Committee fully expects the Government to ensure that, in the framework of the current legislative reform, the Associations Regulation will also be amended to ensure its full conformity with the Convention.

Freedom of Peaceful Public Assembly Act, 2013, and Regulation governing dispute resolution between the employer and the employee, 2011

In its previous comment, the Committee requested the Government to repeal section 24(b)(7) of the Freedom of Peaceful Public Assembly Act and amend sections 5, 7, 8 and 11 of the Regulation on dispute resolution, so as to remove undue restrictions on the right to strike and ensure that all workers covered by the Convention, including those in island resorts, can in practice exercise their right to strike. The Committee notes that, according to the Government, restrictions to assemble in tourist resorts, imposed by section 24(b)(7) are in place considering the “one island one resort” situation and the strategic importance of the tourism industry to the Maldives. The Government asserts that the provision does not completely prohibit the right to assemble in island resorts, as it allows for the right to be exercised with permission from the police. The Committee observes in this regard the concerns raised by the MTUC that since workers in tourist resorts live in remote islands, the restriction to assemble imposed by section 24(b)(7) completely denies any form of assembly or gathering without approval of the resort’s owners and that the police have never allowed workers to perform any such activities. In view of the above and observing that the Government does not provide any information on the measures taken to address the restrictions placed on strikes by sections 5, 7, 8 and 11 of the Regulation on dispute resolution, the Committee recalls once again that these restrictions on the right to assemble and strike, together with the limitation in section 24(b)(7) of the Freedom of Peaceful Assembly Act, are so broad that they could seriously impede the right of workers’ organizations to organize their activities, including through strike action, especially considering that any stoppage of work could be considered to harm the employer or the workplace or obstruct customer services, in particular in tourist resorts. As to the geographical particularities of island resorts, the Committee also recalls that in situations in which a substantial restriction or prohibition of strike action would not appear to be justified but where, without calling into question the right to strike of the large majority of workers, there is a need to ensure that users’ basic needs are met or that facilities operate safely or without interruption, such as in public services of fundamental importance, consideration might be given to introducing negotiated minimum service (defined through participation of workers’ organizations concerned along with the employer). The Committee therefore requests the Government once again to take the necessary measures to repeal section 24(b)(7) of the Freedom of Peaceful Public Assembly Act and amend sections 5, 7, 8 and 11 of the Regulation on dispute resolution, so as to remove undue restrictions on the right of workers’ organizations to organize their activities and ensure that all workers covered by the Convention not performing essential services in the strict sense of the term, including those in island resorts, can in practice exercise their right to strike.

Finally, having observed that section 6 of the Regulation on dispute resolution did not set any time limit for the exhaustion of the obligatory grievance redress mechanism at the employer level before a strike could take place, the Committee requested the Government to provide information on the application in practice of section 6 of the Regulation. The Committee notes that the Government informs that the Industrial Relations Bill intends to amend the procedures stipulated in the Regulation without however indicating what concrete amendments will be made to section 6 of the Regulation. Recalling once again that obligatory grievance redress mechanisms at the employer level should not be so complex, or without time limits, or so slow in implementation, that a lawful strike becomes impossible in practice or loses its effectiveness, the Committee expects that the grievance redress mechanism, as amended by the Industrial Relations Bill, will be in full conformity with the above.