Fundamental Conventions GAP ANALYSIS MATRIX TRINIDAD AND TOBAGO

Transcription

1 Fundamental Conventions GAP ANALYSIS MATRIX TRINIDAD AND TOBAGO

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3 FOREWORD In May 2015, the Caribbean Employers Confederation (CEC) and the Caribbean Congress of Labour (CCL) entered into a Memorandum of Understanding on joint efforts with respect to the legislative and regulatory framework within CARIFORUM countries. CEC and CCL also agreed that it was necessary to undertake joint efforts to support the understanding, application and implementation of regulatory requirements focusing on the EPA Social Chapter which is in keeping with their commitments under the Project 1 funded by the European Union. In this regard, they agreed to jointly uphold and advocate for the rights and principles enshrined in ILO Conventions addressing the issues of the elimination of child labour, forced labour, discrimination and the right to freedom of association and to bargain collectively. Most countries of CARIFORUM have ratified all eight of the ILO Fundamental Conventions covering this platform of human rights considered foundational for the realization of Decent Work. Against this backdrop, it was decided to undertake a review of national legislation in force in the region to understand to what extent current legislation was compliant with the obligations undertaken by member States by their ratification of these Conventions. The gap analyses have been completed on an individual country basis and carried out between March 2016 and March They will provide the affiliates of the CCL and the CEC with a resource to develop bipartite advocacy and action to reform national legislation where it has been found not to be in strict compliance with the provisions of the respective Conventions. In addition, the gap analyses will provide the CEC and the CCL with a baseline to monitor, assess and advocate for the evolution of legislation within CARICOM and the CARIFORUM countries. Caribbean Employers Confederation (CEC) September 2017 Caribbean Congress of Labour (CCL) September The full name of the Project is: Challenges to CARIFORUM Labour, Private Sector and Employers to fulfil their EPA Obligations: Caribbean Employers Confederation and the Caribbean Congress of Labour Component of the Support to Facilitate Participation of CAIFORUM Civil Society in Regional Development and Integration Process

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5 FUNDAMENTAL CONVENTIONS- GAP ANALYSIS MATRIX Name of the country analized: Trinidad and Tobago Disclaimer This gap analysis is based on the information publicly available at the time of preparation. The information therefore may not reflect the current situation, and may not have taken into consideration all relevant legislation and. In addition, this analysis covers only laws and regulations (mainly Acts), and does not cover decisions or judgments of court(s) or tribunal(s) which may impact the way in which the laws are interpreted or implemented. The results of analysis are not validated by the government. This analysis should therefore be considered a starting point for consultations and joint action. Main provisions of the - National s Part I. Freedom of association and the effective recognition of the right to collective bargaining Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) Article 2 Workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organisation concerned, to join organisations of their own choosing without previous authorisation. [For Articles 2-5 and 7] Q1. Which legilsation provides for the rights provided for under Articles 2, 3, 4, 5 and 7 of the Convention? Q. 1 The Constitution of Trinidad & Tobago Chap. 1:01 has the Right to freedom of association and assembly listed as one of its enshrined rights in section 4(j) Gap identified. Q2. How is this Article applied in? Are there any administrave or other practical elements that may make the application of this Article difficult? Re: the private sector- The Industrial Relations Act (IRA) Chap. 88:01 deals with all issues relating to Industrial Relations. Section 71 of the IRA provides for the rights of workers in respect of trade union membership and activities. 71 (a) clearly states The gap identified is that the IRA, the principal legislation on industrial relations, excludes a wide range of workers in the private sector. Persons who are responsible for policy formulation and who have effective control in an organisation are not included in the definition of worker, but it may not entirely a gap since these are the persons who would be law and/or Re: Private sector The IRA, particularly section 2, should be amended to cover wider range of workers. Re: Public sector The legislation should be amended so that no Association is given a privileged position merely because it was in existence at an earlier time. All 1

6 - National s every worker has the right to be a member of a trade Union or any number of trade unions of his choice Private sector companies usually have trade unions so the provisions relating to trade unions apply to them. Sections 33 & 34 deal with the requirements for certification of recognition as the bargaining body for that class of workers. involved in negotiations with the Unions and Associations and would in effect be the face and brains of the organisation. They are not precluded from pursuing any claims they mamy have against the organisation at the High Court should they choose to do so. They just cannot pursue it in the Industrial Court. law and/or decisions concerning the most representative organization should be made by virtue of objective and preestablished criteria, as recommended by the CEACR. The IRA, section 2(1) defines the term worker basically as any person who works under a contract to do skilled, unskilled, manual, technical, clerical, or other work whether the contract is expressed or implied, oral or in writing, is a contract of service or apprenticeship. Section 2(3) excludes persons who are public officers, members of the defence force, police, fire, prison and teaching services from the definition of worker. However, section 4(2C) provides that these persons fall under the Another gap is that while workers in the private serctor are free to join organisations of their own choosing to represent them, public sector workers cannot choose to join any organisation/trade union. They are required to join, if they choose to, the Association that represents that Service, and they are not allowed to join trade unions. In this respect, the ILO s Committee of Experts on the Application of Conventions and Recommendations 2

7 - National s purview of the Special Tribunal established under the Civil Service Act Section 21. The Special Tribunal is established under the Civil Service Act Chap. 21(1). It is chaired by the Chairman of the Essential Services Divison of the Industrial Court and also consist of two other members of that Division. It is also referred to in section 4(2c) of the IRA. It treats with all disputes emanating from the Civil,Police, Fire, Prison and Teaching Services and is referred to in all of the of legislation of those services. An award is binding. It is a superior court of record. The Special Tribunal is also mentioned in the following provisions of acts on the public sector, and therefore the workers covered by these acts have recourse to the tribunal. Education Act Chap. 39:01 sections 69, 70 & 71 (CEACR) commented on section 24(3) of the Civil Service Act, though in relation to Convention No. 98, indicating that where there exists a trade union which enjoys preferential or exclusive bargaining rights, as in the current system, decisions concerning the most representative organization should be made by virtue of objective and pre-established criteria instead of simply giving priority to the one which was registered earlier in time, so as to avoid any opportunities for partiality or abuse. It suggested the revision of the Act in this regard. (See the comment of the CEACR published in 2016 at ex/en/f?p=1000:13100:0::no: 13100:P13100_COMMENT_ID, P11110_COUNTRY_ID,P11110 _COUNTRY_NAME,P11110_C OMMENT_YEAR: ,103 law and/or 3

8 - National s Prison Service Act Chap. 13:02 sections 22, 23 Fire Service Act Chap. 35:50 sections 26, 27 Police Service Act Chap. 15:01 Sections 19, 20 Section 2(3)(e) also precludes persons who are responsible for the formulation of policy or who has effective control of the organisation from being deemed to be a worker under the Act. In accordance with this section, the Registration Recognition and Certification Board would make the determination if the person is a worker or not based on the actual duties carried out by the person. Section 2(3)(f) also precludes domestic workers. Re the public sector- 138,Trinidad%20and%20Toba go,2015 ) The point above is raised also in the Digest of decisions and principles of the Committee on Freedom of Association (CFA) of the ILO (See paragraph 222 of Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO available at: roups/public/---ed_norm/--- normes/documents/publicatio n/wcms_ pdf)). The Members of the Teaching Service are the only ones who have a Union representing them, which is registered under the Trade Union Act. It is Trinidad and Tobago Unified Teachers Association (TTUTA). law and/or See above for the provisions of the IRA concerning public sector workers. 4

9 - National s law and/or In addition: Education Act Chap. 39:01 section 74(1) Civil Service Act Chap. 23:01 section 24 Prison Service Act Chap. 13:02 section 26 Fire Service Act Chap. 35:50 section 30 Police Service Act Chap. 15:01 Sections 33, 34, 35 Q. 2 The IRA has provisions that can be utilised to preclude any attempts by an employer or any orgainsation to prevent a worker from joining a Union. The IRA has all of the processes required to enforce any of these provisions. The Industrial Court is very vibrant. The Annual Report of the Industrial Court for showed the total number of disputes filed were 2384 and total disposed were

10 Article 3 1. Workers' and employers' organisations shall have the right to draw up their constitutions and rules, to elect their representatives in full freedom, to organise their administration and activities and to formulate their programmes. 2. The public authorities shall refrain from any interference which would restrict this right or impede the lawful exercise thereof. - National s [See under Article 2] The Trade Union Act Chap. 88:02 section 18 sets out the documents/ information to be supplied for registration of a Trade union, including their rules. Section 19 requires Trade Unions to include specific information in the rules as set out in the Second Schedule. There is nothing precluding the Union including other rules. Civil Service Act Chap. 23:01 Part V sections provides for the Association of Civil Servants and section 27 provides for the Association to make rules for good governance and carrying out the objects of the association. The information that should be provided in the rules are set out in the Fourth Schedule. It should be noted that all of the services have basically the same Schedule. Prison Service Act Chap. 13:02 section 28, & Fourth Schedule Fire Service Act Chap. 35:50 section 32 & Sixth Schedule Gap identified. The gap is that there is no specific section in the IRA requiring the Unions to draw up their own constitutions whilethere are references to the Union s Constitution in the Industrial Relations Act (IRA) at Section 73 (1) (c). The CEACR suggested amendment or repeal of the following provisions of the IRA as these provisions were considered to limit the feedom of workers and employers organizations to organize their activities and to formulate their programmes: section 59(4)(a) concerning the majority required for calling a strike sections 61(d) and 65 concerning recourse to the courts by either party or by the Ministry of Labour to end a strike; and section 67 (in conjunction with the second schedule) law and/or For completeness, the IRA should make a reference to the rules set out in Second Schedule of the Trade Union Act Revision of the IRA in line with the recommendation of the CEACR should be considered. 6

11 - National s Police Service Act Chap. 15:01 Section 36, Fourth Schedule Education Act Chap. 39:01 Section 74A Second Schedule ( This only applies to Associations that are formed under the Education Act but does not include the Trinidad and Tobago Unified Teachers Association which is registered as a trade union and therefore falls under the rules of the Trade Union Act ) and section 69 concerning services in which industrial action may be prohibited. (See the comments published in 2017 available at: mlex/en/f?p=1000:13100:0: :NO:13100:P13100_COMME NT_ID: ) law and/or There is no interference by Public authorities re workers and employees rights to draw up constitutions save an except in relation to the registration of Trade Unions and Assoications. The following pieces of legislation and sections indicate that the Unions/ associations must fufill all of the requirements of the legislation to be registered and recognised as the bargaining body. Indusrial Relations Act Chap. 88:01 section 32 provides for the process of certification of 7

12 Article 4 Workers' and employers' organisations shall not be liable to be dissolved or suspended by administrative authority. - National s recognition of a trade union. Section 59(4)(a) regulates the majority required for calling a strike. Sections 61(d) and 65 provides for recourse to the courts by either party or by the Ministry of Labour to end a strike. Section 67 (in conjunction with the second schedule) and section 69 provides for services in which industrial action may be prohibited. Trade Union Act Chap. 88:02 section 18 Civil Service Act Chap. 23:01 section 24(3)& (4) Prison Service Act Chap. 13:02 section 27 Fire Service Act Chap. 35:50 section 31 Police Service Act Chap. 15:01 Section 35 Education Act Chap. 39:01 Section 74D (1) [See under Article 2] Trade Unions Act Chap. 88:02 The CEACR, in its comment published in 2017, indicated that the following provisions of the Act might not be in full Gap identified. See the CEACR s views expressed with respect to each of the provisions of the Trade Unions Act mentioned on the left. law and/or The provisions of the Trade Unions Act should be amended as recommended by the CEACR. 8

13 - National s conformity with Convention No. 87, and expressed its views: Section 10 requires unions to register, subjects the registration to the permission of the Registrar and provides that in the event of failure to register the officers or an unregistered trade union are liable to a fine of 40 TTD (approximately 5.9 USD) for every day for which the union remains unregistered o The Committee recalls that the right to establish organizations without previous authorization entails that the authorities should not have discretionary power to refuse the establishment of an organization and that the exercise of legitimate trade union activities should not be dependent upon registration. Section 16(4) allows the Registrar to order an inspection of the books, law and/or 9

14 - National s accounts, securities, funds and documents of the trade union o The Committee recalls that financial supervision of unions should be limited to the obligation of submitting annual financial reports and verifications should be carried out only when there are serious grounds for believing that the actions of a union are contrary to its rules or the law, or when a significant number of workers request such verification by raising a complaint or in relation to allegations of embezzlement. Section 18(1)(d) enables the Registrar to withdraw or cancel the certificate of registration on certain grounds o The Committee notes that under the Convention unions shall law and/or 10

15 - National s not liable to be dissolved or suspended by the administrative authority, and that the possibility under section 18(1)(e) to appeal such decisions by the Registrar should have the effect of a stay of execution. Section 33 limits the right of unions to administer their funds in relation to political activities o The Committee indicated that unduly restricting the possibilities of unions to legitimately engage on matters of economic or social policy affecting their members or workers in general. (See lex/en/f?p=1000:13100:0::no :13100:P13100_COMMENT_I D: ) law and/or The Trade Union Regulations Chap. 88:02 11

16 - National s Regs 12, 13, & 14 refer to the Forms that must be filed with the Registrar for cancelling or withdrawal of the certificate of registration. law and/or Article 5 Workers' and employers' organisations shall have the right to establish and join federations and confederations and any such organisation, federation or confederation shall have the right to affiliate with [See under Article 2] Civil Service Act Chap. 23:01 Section 24(4) Minister of Finance will withdraw recognition where the association does not comply with the requirements for recognition. The following services have similar sections. Prison Service Act Chap. 13:02 Section 29(1) & (3) Fire Service Act Section33(1) & (3) Police Service Act Section 37 (1) & (3) There is no legislation providing for confederations and affiliations with international orgainsations, but the National Trade Union Centre of Trinidad and Tobago(NATUC) was created in 1991 by the merger of the Trinidad and Tobago Labour Congress(TTLC) and the Council of Progressive Trade Unions No gaps identified There is no law that states that workers and employers organisations have the right establish or to join federations or confederations but there is no law precluding them from doing so and in they do form such confederations. 12

17 international organisations of workers and employers. - National s (CPTU). It has a membership of 80,000.NATUC has 16 Unions in its fold.following the 2000 Convention, divisions took place in NATUC which resulted in the formation of the Federation of Independent Trade Unions and Non-Governmental Organisations(FITUN) as a separate trade union centre. The Joint Trade Union Movement (JTUM)was created during a negotiation on working conditions of civil servants and public emploees that started since June The government was considered to have capped a wage increase of those workers at 5%. All trade unions came together to form JTUM. It is registered as a trade union federation recently in It seems unnecessary to pass a law to allow them to do what they are already doing without any restrictions. law and/or With respect to international affiliation, the NATUC is affiliated to the International Trade Union Confederation and the Caribbean Congress of Labour.. 13

18 Article 7 The acquisition of legal personality by workers' and employers' organisations, federations and confederations shall not be made subject to conditions of such a character as to restrict the application of the provisions of Articles 2, 3 and 4 hereof. - National s In the public sector, the Public Service Association is a member of Public Service International which is a global trade union federation and works with the United Nations system. [See under Article 2] Trade Union Act Chap. 88:01 Section3 Union can use its funds for any lawful objects authorised under it s Constitution. Sections 11, 12 & 14 deal with Trade unions owning property or leasing same as well as treating with Law suits. There seems to be no restrictions on their right to do these things once they are registered as a trade union and their rules provide for it. The Unions can hold property, conduct business and be sued or sue by using trustees who are appointed in accordance with the rules of the Unions. No gaps identified. Acquisition of legal personality is not required for registration or operation as a trade union. law and/or It should be noted that all of the Associations of the Public Service also have a provision in the rules about appointing trustees. 14

19 Article 9 1. The extent to which the guarantees provided for in this Convention shall apply to the armed forces and the police shall be determined by national laws or regulations. Q. How does the national legislation regulate freedom of association with respect to the armed forces and the police? - National s However, there was no equivalent provision found that allowed for Associations to own property or to sue or be sued in their own name. However, in the Associations do own or rent property and are sued and sue in their own name. It appears that this right is based on the rules that by law they are required to make to carry out the objects of the Association.In,the Public Service Association owns the building at the head office and they also own other lands. The Industrial Relations Act Chap. 88:01 section 2(3) (b) states specifically that a member of the Defence Force is not regarded as a worker and therefore members of the Defence Force cannot pursue any matter in the Industrial Court or be represented by a trade union or association. Moreover, the Defence Act 14:01 makes it clear that persons falling under this act are governed by military law. There is no provision in the Defence Act for persons The national legislation does not distinguish civilian and non-civilian workers in the Defence Force and make separate provisions on freedom of association for civilian staff. (See Paragraphs of Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO available at: 5/groups/public/---ed_norm/- -- law and/or Though the Convention does not require, consideration may be given to the possibility of legisiating the right to freedom of association to cilivan members of the armed forces, with a view to limiting the exemption. (See Paragraphs of the Digest) 15

20 - National s falling under this Act to form associations/ unions normes/documents/publicatio n/wcms_ pdf) law and/or Police Service Act Chap. 15:01 section 34 members of the Police Service can be represented by an Association but under section 33 can not be a member of a trade union (already cited). Article 11 Each Member of the International Labour Organisation for which this Convention is in force undertakes to take all necessary and appropriate measures to ensure that workers and employers may exercise freely the right to organise. Q. Does the national legislation guarantee the right to organize without any distinction, including managerial and executive staff and employers? Industrial Relations Act Chap. 88:01 Section 2(3) of the IRA basically states that a person who is responsible for the formulation of policy for the organisation or has effective control of the whole or any department of the organisation or has an effective voice in the formulation of policy in any organisation is not a worker under the IRA and therefore cannot bring a matter before the Industrial Court. Gap identified. The IRA is silent on freedom of association for category of persons excluded from the definition of the term worker under section 2(3) of the Act. See under Article 2 concerning the IRA. The case law has clearly defined what would exclude the person from being seen as a worker specifically The Association of 16

21 - National s Technical, Administrative and Supervisory Staff v. Caroni (1975) Ltd TD 541 of 1997 and App. #6 of However, this case law does not preclude persons from pursuing the determination of whether they are a worker under the Act with the Recognition Board. In relation to the formulation of policy stated in section 2(3) of the IRA, the Court was of the view that this would entail decisions that would have to be made and actions that would have to be pursued for the organisation to be a success. These persons determine the strategic direction of the organisation and actually determine how the business is to be run. In dealing with an effective voice (also menteiond in section 2(3) of the IRA) in policy formulation, the Court was of the view that this would be the voice that would not lightly be disregarded, that is, the voice that the owners or heads of organisations would pay close law and/or 17

22 - National s attention to and would effectively guide the development of the policy. law and/or It should be noted that most organisations have several categories of workers and the Unions negotiate separately for each class/ category of workers and there are different collective agreements within the same orgainsation for the different classes. Civil Service Act Chap. 23:01 Section 23(1) makes a discintion in relation to the class of officers that could be represented by the Association for the purposes of consultation and negotiations in relation to terms and conditions of employment. That is all positions listed under the Second Schedule to the Act. Thus it is evident that the decision makers ie the executive management is not expected to be part of the association or union. 18

23 - National s That being said, while the Public Service Association (PSA) does not negotiate the terms and conditions of employment for Permanent Secretaries/ Head of Department, if any action is brought against them, they can use the PSA to pursue their claims at the High Court or to represent them in relation to the disciplinary matter before the Public Service Commission. law and/or The Police Service is divided into 2 Divisions, the First Division is the management / executive level of the police service set out in the First Schedule of Chap. 15:01 and they are allowed to be part of an Association. The Fire Service also has two Divisions The First Division is the executive level set out in the Second Schedule Chap. 35:50 and there is no restriction on them being part of an association. A similar situation occurs in the Prison Service chap. 13:02. 19

24 - National s Right to Organise and Collective Bargaining Convention, 1949 (No. 98) Article 1 1. Workers shall enjoy adequate protection against acts of anti-union discrimination in respect of their employment. 2. Such protection shall apply more particularly in respect of acts calculated to-- (a) make the employment of a worker subject to the condition that he shall not join a union or shall relinquish trade union membership; (b) cause the dismissal of or otherwise prejudice a worker by reason of union membership or because of participation in union activities outside working hours or, with the consent of the employer, within working hours. Q1. Are there any provisions in the national legislation that would prohibit denial or cancellation of employment due to trade union membership of a worker? Q2. Does the national legislation provide for protection from any other types of antiunion s? Q3. How is this Article of the Convention applied in?are there any administrave or other practical elements that may make the application of this Article difficult? Q1. Industrial Relations Act (IRA) Chap. 88:01 Section 42 makes it clear that a worker can not be victimised for trade union activities or being part of a Trade Union. The Employer would be open to summary conviction if he/she attempted to stop a worker from joining a Union or forced a worker to give up his membership in the Union. Q2. Section 40 of the IRA Refusal by an employer or a recognised union to enter into negotiations with each other for collective bargaining is an offence and liable to a fine of four thousand dollars(approximately 600 USD). Section 63 (1) of the IRA Where an employer takes industrial action ie lock out action and it is not done in conformity with the IRA the employer is guilty of an offence and has to pay a fine 20 No gaps identified law and/or As mentiond in relation to section 40 of the IRA, the fines set out in the IRA for breaches and offences should be reviewed, and, where needed, increased.

25 - National s of twenty thousand dollars as well as remain liable for the unpaid wages and other remuneration. law and/or Q3. The IRA has provisions that can be utilised to preclude any attempts by an employer or any organisation to prevent a worker from joining a Union Article 2 1. Workers' and employers' organisations shall enjoy adequate protection against any acts of interference by each other or each other's agents or members in their establishment, functioning or administration. 2. In particular, acts which are designed to promote the establishment of workers' organisations under the domination of employers or employers' organisations, or to support workers' organisations by financial or other means, with the object Q1. How does the national legislation ensure that workers and employers organization do not interfere each other, by, among others, prohibiting any measures that would limit independence in finance or operation? Q2. How is this Article of the Convention applied in? Are there any administrave or other practical elements that may Q1. There is no specific legislation to protect workers Associations/ unions from Employers associations. The only pieces of legislation that seem to be along those lines are Industrial Relations Act Chap. 88:01 section 43(5) and Trade Union Act Chap. 88:02 section 4. Industrial Relations Act Chap. 88:01 section 43(5) which sets out the provisions that would be void in a collective agreement ie, benefits of agreement only apply to members of the Union, any clause excluding the application of this Act, any clause specifying that an employer must only Gap identified There is no law that specify that workers and employer s associations shall be protected from acts of intereference from each other or their agents or members in their establishing, functioning or administration. It is recommended that the Industrial Relations Act be amended to include a provision that will protect employers and workers organisations from interference from each other in their establishing functioning or administration. 21

26 of placing such organisations under the control of employers or employers' organisations, shall be deemed to constitute acts of interference within the meaning of this Article. make the application of this Article difficult? - National s employ members of a particular union. The Trade Union Act Chap. 88:02 section 4 sets out the exemptions to this act, that is it does not affect partners to a business and agreements between employers and their employees re their employment. law and/or Q 2 If there is any form of interference the parties will usually try to find a provision under the IRA that they could bring an action if not they would apply to the High Court with a specific civil type matter based on the circumstance. There are been no documented situations of this type that could be located. However there is a provision in the Trade Union Act Chap. 88:02 section 6 which sets out the types of trade union contracts which would not be enforceable in Court. This can be seen as a protection from interference with the 22

27 - National s internal management of the Unions. law and/or Further,the workers associations/ unions do not receive their funding from any employers association. They are separate entities and receive their funding from their membership. It is unlikely that there would be any interference with their independence. The labour movement is very vibrant in T&T and any attempt to curtail their rights or preclude them from properly representing their membership is usually followed by legal action. Article 3 Machinery appropriate to national conditions shall be established, where necessary, for the purpose of ensuring respect for the right to organise as defined in the preceding Articles. Q1. Are there any bodies that would discuss and promote the right to organize? Are they tripartite? Q2. What are the measures envisaged under the national legislation that would Q1 Industrial Relations Act Chap. 88:01 Section 80- Establishment of an Industrial Relations Advisory Committee comprising Worker s organisation Employers organisations Public officers and such other persons as the President considers fit. No gap identified 23

28 - National s be taken if the right to organize is violated? Q 2. Under section 7 of the Act, the Industrial Court s purpose is to enforce compliance with national legislation and arbitrate disputes. law and/or The Industrial Court and its legislation would protect the rights of any entity to organise. Under the Industrial Stabilisation Act 1965 there were several cases where the right of the Union to organise was compromised by the employer s refusal to recognise the Union as the bargaining body for the workers. The passage of the Industrial Relations Act and the establishment of the Registration Recognition and Certification Board changed this and recognition of Unions was left in the hands of an impartial body. The issues that arise now are breach of section 40which is an Industrial relations Offence. that is failure to engage in consultation with the reognided Union in relation to matters that 24

29 Article 4 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. Q. How, through legal or other means, voluntary negotiation between employers and workers is encouraged and promoted? - National s affect the terms and condtions of their members. Industrial Relations Act (IRA) Chap. 88:01 Section 12 Allows for conciliation between the parties. Section 34 Provides for requirements for certification of recognition as the bargaining body for that class of workers. Section 40 Refusal by an employer or a recognised union to enter into negotiations with each other for collective bargaining is an offence and liable to a fine of four thousand dollars. Section 55 Sets out the conciliatary procedure to be applied where there is a trade dispute. Gap identified. The CEACR has commented on section 34 of the IRA in relation to this Article of the Convention, suggesting the revision of the Act to allow minority unions in the unit to bargain collectively, at least on behalf of their own members when there is no union that represents the majority of workers. (See the comment of the CEACR published in 2017 available at ex/en/f?p=1000:13100:0::no: 13100:P13100_COMMENT_ID: ) law and/or Revision of the IRA in line with the recommendation of the CEACR should be considered. Article 5 1. The extent to which the guarantees provided for in this Convention shall apply to the armed forces and the police Q. How does the national legislation regulate the issues of the right to organize and to collective bargaining with respect The Industrial Relations Act Chap. 88:01 section 2(3) (b) states specifically that a member of the Defence Force is not regarded as a worker and therefore members of the Defence Force cannot No gap identified. 25

30 shall be determined by national laws or regulations. to the armed forces and the police? - National s pursue any matter in the Industrial Court or be represented by a trade union or association and is not allowed to be a participant in collective bargaining. Moreover, the Defence Act 14:01 makes it clear that persons falling under this act are governed by military law. There is no provision in the Defence Act for persons falling under this Act to form associations/ unions or for collective bargaining. In however, the representatives of the Defence Force usually meet with the Chief Personnel Officer and set out the terms and conditions they would like. The Government determines the salaries and terms and conditions of employment based on their requests and what is being offered to the other services. law and/or Police Service Act Chap. 15:01 section 34 members of the Police Service can be represented by an 26

31 - National s Association but under section 33 can not be a member of a trade union (already cited). law and/or Article 6 This Convention does not deal with the position of public servants engaged in the Q1. How does the national legislation regulate the issues of the right to organize Sections 24 (1) (3) (4),25, 26, 28, 30 & 31 Members of the Police Service engage in a version of collective bargaining, in that, the Personnel Department ( Office of the CPO) engages in consultation and negotiation with regard to the terms and conditions of employment of Police Officers with the respective Associations representing the First and Second Divisions of the Police Service. An Agreement is usally signed called a Memorandum of Agreement. It is not usually as complete as a collective agreement since it merely picks up the changes to the terms and conditions or any other changes agreed upon. The whole course of negotiation is directed by the legislation. Q1. The officers in the Civil, Prison, Fire and Police are represented by Associations and not Trade Unions. These officers do not fall No gaps identified. 27

32 administration of the State, nor shall it be construed as prejudicing their rights or status in any way. and to collective bargaining with respect to civil servants employed in government ministries and other comparable bodies? Q2. How is this provision of the Convention applied in?are there any administrave or other practical elements that may make the application of this Article difficult? - National s within the definition of worker in the IRA. They are not allowed to pursue industrial action. However, this does not preclude them from bringing matters before the Special Tribunal. The Members of the Teaching Service are the only ones who have a Union representing them. Initially, all the Services were treated as part of the Civil Service, however, over time the Services separated into Civil, Prison, Fire, Police and Teaching. At the time of the passage of the legislation for the particular service, the Association in existence at that time for the service was specified. Just like the certification of Unions, if an Association does not have the required majority of officers in the particular class of officers, the Association will not be recognised as the certified bargaining body for that class of officers. law and/or The following pieces of legislation and section which havealready 28

33 - National s been cited indicate the right of officers in those services to form Associations. Education Act Chap. 39:01 section 74(1) Civil Service Act Chap. 23:01 section 24 Prison Service Act Chap. 13:02 section 26 Fire Service Act Chap. 35:50 section 30 law and/or Civil Service Act Chap. 23:01 Section 14 (1) ( C) requires that the Personnel Department establish procedures for consultation and negotiation with the recognised association. Section 16 also requires the Personnel Department to consult with the association at their request or at the request of the Minister. The head of the Personnel Department is the Chief Personnel Officer who is the bargaining agent for Government and is deemed to be the employer of all public officers. 29

34 - National s law and/or The other services have identical provisions to those in the Civil Service Act Prison Service Act Chap. 13:02 Sections 15 and 17 Fire Service Act Chap. 35:50 Sections 19 & 21 Education Act Chap. 39:01 Section 63 (1) (c) & 65 Part II. Elimination of all forms of forced or compulsory labour Forced Labour Convention, 1930 (No. 29) Article 1 Q. Are there any 1. Each Member of the national legislation, International Labour policy and/or Organisation which ratifies programme to suppress this Convention undertakes to the use of forced or suppress the use of forced or compulsory labour? compulsory labour in all its forms within the shortest possible period. One reference to compulsory labour is in the Constitution Chap. 1:01 in the preamble in paragraph (b) that labour should not be exploited or forced by economic necessity to operate in inhumane conditions... Trafficking in Persons Act Chap 12:10 Section 3 This Act has reference to forced labour, slavery, debt bondage, servitude and exploitation. The definition of exploitation encompasses forced labour and slavery and exploitation falls No gap identified. 30

35 - National s within the parameters of trafficking. The penalities for trafficking in persons is set out in section 16 and 17 of the Act. A person who engages in trafficking for the purpose of exploitation which includes forced labour is liable on conviction on indictment, to a fine of not less than 500,000 TTD (approximately 73,700 USD) and imprisonment of not less than fifteen years. law and/or Article 2 1. For the purposes of this Convention the term forced or compulsory labour shall mean all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily. Q1. If a national legislation, policy and/or programme to suppress the use of forced or compulsory labour exist, how do they define the term forced or compulsory labour? Section 19(2) of the Defence Act, Chap. 14:01, under which persons below the age of 18 years may be enlisted with the consent of their parents or of the person in whose care they may be. Q1 Trafficking in Persons Act Chap 12:10 Section 3 forced labour means labour or services obtained or maintained through force, threat of force, or other means of coercion or physical restraint; Gap identified- While there is a law that contains detailed and pertinent definition of forced labour, the law is specifically on trafficking. There should be a comprehensive labour law that covers this matter. There should be a comprehensive labour law that defines forced labour and contain relevant provisions. 31

36 2. Nevertheless, for the purposes of this Convention, the term forced or compulsory labour shall not include-- (a) any work or service exacted in virtue of compulsory military service laws for work of a purely military character; (b) any work or service which forms part of the normal civic obligations of the citizens of a fully selfgoverning country; (c) any work or service exacted from any person as a consequence of a conviction in a court of law, provided that the said work or service is carried out under the supervision and control of a public authority and that the said person is not hired to or placed at the disposal of private individuals, companies or associations; (d) any work or service exacted in cases of emergency, that is to say, in Q2. Does the national legislation contain any exemption in this regard? - National s The legislation also defines abuse of a position of vulnerability Debt bondage, exploitation, servitude and slavery. Abuse of a position of vulnerability includes (a) Such abuse that a person would reasonably believe that he has no alternative but to submit to the labour or service demanded of him. debt bondage means the status or condition of a person arising from his pledge to provide his personal services or those of a person under his control as security for a debt, where (a)the value of those services as reasonably assessed is not applied toward the liquidation of the debt; (b) the period during which those services are to be provided is not limited; or(c) the nature of those services is not defined; exploitation includes (a)keeping a person in a state of slavery; law and/or 32

37 the event of war or of a calamity or threatened calamity, such as fire, flood, famine, earthquake, violent epidemic or epizootic diseases, invasion by animal, insect or vegetable pests, and in general any circumstance that would endanger the existence or the well-being of the whole or part of the population; (e) minor communal services of a kind which, being performed by the members of the community in the direct interest of the said community, can therefore be considered as normal civic obligations incumbent upon the members of the community, provided that the members of the community or their direct representatives shall have the right to be consulted in regard to the need for such services. - National s (b)subjecting a person to s similar to slavery; (c)compelling or causing a person to provide forced labour or services; slavery means the status or condition of a person over whom any or all the powers attaching to the right of ownership are exercised; servitude means a condition of dependency in which the labour or the services of a person are provided or obtained by threats of serious harm to that person or another person, or through any scheme, plan or pattern intended to cause the person to believe that, if the person does not perform such labour or services, that person or another person will suffer serious harm; There are no exemptions set out in the legislation. Protocol of 2014 to the Forced Labour Convention, 1930 Q2 33 law and/or

38 Article 1 1. In giving effect to its obligations under the Convention to suppress forced or compulsory labour, each Member shall take effective measures to prevent and eliminate its use, to provide to victims protection and access to appropriate and effective remedies, such as compensation, and to sanction the perpetrators of forced or compulsory labour. 2. Each Member shall develop a national policy and plan of action for the effective and sustained suppression of forced or compulsory labour in consultation with employers and workers organizations, which shall involve systematic action by the competent authorities and, as appropriate, in coordination with employers and workers organizations, as well as with other groups concerned. [For Articles 1-3] Q1. If a national legislation, policy and/or programme to suppress the use of forced or compulsory labour exist, do they contain measures to: (i) prevent and eliminate its use; (ii) provide to victims protection and access to remedies (e.g. compensation-also relevant to Article 4 of the Convention); and (iii) sanction the perpetrators (iv) educate and inform people who may become victims of forced or compulsory labour; (v) educate and inform employers about forced - National s Q1 (i) As stated previously the Constitution Chap. 1:01 that refers to compulsory labour ie the preamble ( b) that there should be adequate means of livelihood for all and, that labour should not be exploited or forced by economic necessity to operate in inhumane conditions Also the fundamental human rights that is enshrined in the Constitution at section 4. The Trafficking in Persons Act Chap. 12:10 treats with suppressing the use of forced or compulsory labour. That is forced labour, slavery servitude and debt bondage all fall within the definition of exploitation and trafficking in persons for the purpose of exploiataion is a crime. Q1( ii) The Trafficking in Persons Act Chap. 12:10 section 29 provides for access to remedies and compensation of Gap identified. There is a gap in that Forced labour, Servitude and slavery in the interpretation section of the Act but these issues are not specifically dealt with in the body of the Act. They are all dealt with under rubric of trafficking in persons for the purose of exploitation and fall within th definition of exploitation law and/or Forced labour should be specifically treated within the current legislation. There should be a comprehensive progamme of action against forced labour. 34

39 or compulsory labour s; (vi) ensuring that legislation relevant to the prevention of forced or compulsory labour is applied to all workers and all economic sectors, and that its application is enforced through labour inspection; (vii) protecting persons particularly vulnerable to forced or compulsory labour, particularly migrant workers; (viii) establishing and enforcing procedures and mechanisms necessary to prevent and respond to forced or compulsory labour; and (ix) studyng the root causes of forced or - National s the victims. The compensation could come out of the property forfeited from the convicted trafficker. The compensation would also be for costs of medical and psychological treatment; costs of physical and occupational therapy and rehabilitation; costs of necessary transportation, temporary housing and child care; lost income; attorney s fees and other legal costs; compensation for emotional distress, pain and suffering; and any other losses suffered by the victim which the Court considers applicable; Section 32 provides for the guidelines for protection to the victims. Keep the victim and the family safe. Provides access to a lawyer for the victim. Q1(iii)The Trafficking in Persons Act Chap. 12:10 The penalities for trafficking in persons is set out in section 16 and 17 of the Act. A person who engages in trafficking for the law and/or 35

40 compulsory labour and relecting the results to legislation, national policies or programmes. Q2. What are the progress and results achieved by these measures? Q3. Are employers and workers organization involved in implementing measures mentioned under Q1 above? If so, how are they involved? - National s purpose of exploitation which includes forced labour is liable on conviction on indictment, to a fine of not less than five hundred thousand dollars and imprisonment of not less than fifteen years. Section 24(1) -The property of the trafficker that was gained as a result of trafficking will also be confiscated. Section 25- A person who receives or obtains a financial or other benefit, knowing that it results from the offence of trafficking is liable on conviction on indictment to a fine of four hundred thousand dollars and to imprisonment for fifteen years. law and/or Q1(iv) The Trafficking in Persons Act Chap. 12:10 Section 12 sets out the the role of the Counter Trafficking Unit and section 12(q) and (r) has public awareness programmes as one of its responsibilities, specifically educating citizens about trafficking, warning citizens and 36