Fundamental Conventions GAP ANALYSIS MATRIX SAINT KITTS AND NEVIS

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1 Fundamental Conventions GAP ANALYSIS MATRIX SAINT KITTS AND NEVIS

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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 analysed: St Kitts and Nevis 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 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 [For Articles 2-5 and 7] Workers and employers, Q1. Which legislation without distinction provides for the rights whatsoever, shall have the provided for under right to establish and, subject Articles 2, 3, 4, 5 and 7 only to the rules of the of the Convention? organisation concerned, to join organisations of their own choosing without previous authorisation. Q2. How is this Article applied in? Are there any administrative or other practical elements that may make the application of this Article difficult? Saint Christopher and Nevis Constitution Order 1983 Section 13 (1) - Except with his own consent, a person shall not be hindered in the enjoyment of his freedom of assembly and association, that is to say, his right to assembly freely and associate with other persons and in particular to form or belong to trade unions or other associations for the protection of his interests or to form or belong to political parties or other political associations. Gap identified While it is evident from the legislation- There should be a clear statement in the legislation that it is the right of any worker to join a Union of their choice. Further there is no provisions about the rules applying to strikes and lock outs etc and the penalities for breaches of the same. law and/or There should be a clear provision in the legislation that it is the right of any workers to join a Union of their choice. Further, there should be provisions regulating the rules applying to strikes and lock outs etc and the penalities for breaches of the same. 1

6 Private Sector Trade Union Act Chap. 353 There seems to be no real restriction in relation to establishing or registering a trade union. Section 13(1) provides that once a trade union has been established,the committee of management or trustees appointed by the trade union or or in default of any such appointment, the directing authority by whatever name it may be called is required to make application for registration within thirty days after the date of the establishment of such union. Section 14 states that all that is required to register a trade union is for an application to register the trade union and four printed copies of the rules, together with a list of the titles and names of the officers, to be sent to the Registrar. Once the Reigstrar is satisfied that the trade union has complied with the regulations It should be noted that according to Country Reports on Human Rights Practices for Bureau of Democracy, Human Rights and Labor, United States Department of State ( ments/organization/ p df) section 7 on worker rights provides : The law provides for the right to form and join independent unions, or staff associations, which can negotiate better wages and benefits for union members, and the right to strike. Employers are not legally bound to recognize a union. The law permits the police, civil service, and organizations such as hotels, construction workers, and small businesses to organize staff associations. Some staff associations have bargaining powers and dispute settlement rights; associations do not have collective law and/or 2

7 respecting registration in force under this Act, he will register such trade union. 14(d)The Registrar will not register any combination as a trade union unless in his opinion, having regard to the constitution of the combination, the principal objects of the combination are statutory objects. Once the statutory objects are altered the Trade Union registration can be cancelled. Section 14 (e) any person aggrieved by any refusal of the Registrar to register a combination as a trade union, or by the withdrawal or cancellation of a certificate of registration, may appeal to the Supreme Court within the time and in the manner and on the conditions directed by Rules of Court. Moreover, the Act does not seem to create any distinction between the Private sector and the Public Sector. That is, there is no provision in the Act that limits its application in relation to the bargaining rights but can negotiate or represent members. Restrictions on strikes by workers who provide essential services, such as the police and civil servants, were enforced by established and custom but not by law. A union that obtains membership of more than 50 percent of employees at a company may apply for the employer to recognize it for collective bargaining. The law prohibits antiunion discrimination but does not require employers found guilty of such action to rehire employees fired for union activities. In case ofunemployment or termination, the government pays lost wages and severance pay to workers employed at least one year, based upon their length of service. Civil servants do not receive severance pay, but auxiliary law and/or 3

8 Public Sector. The Act is therefore considered to apply to both private and public sectors. With respect to the, in the Direct Request (CEACR)- published in 2011 on the Freedom of association,it stated The Committee notes that the Government indicates in its report that there are currently two trade unions in the country, St Kitts and Nevis Trades and Labour Union and St Kitts and Nevis Teachers Union with respectively 500 and 450 affiliated members; and three employers organizations, St Kitts and Nevis Chamber of Industry and Commerce and Manufacturing Division, St Kitts and Nevis Hotel and Tourism Association and St Kitts and Nevis Contractors Association. (See en/f?p=1000:13100:0::no:13100: P13100_COMMENT_ID: ) workers, such as public works employees, do. The law does not prescribe remedies for labor law violations, and the Ministry of Labor did not provide information on the adequacy of resources, inspections, and penalties for violations. Based on anecdotal evidence, cases were not generally subject to lengthy delays and appeals. Freedom of association and the right to bargain collectively generally were respected in. Employers generally recognized a union if a majority of workers voted to organize, although they are not legally obliged to recognize a union. There was no evidence of employer interference or antiunion discrimination. law and/or Public Sector Public Service Act 19 of

9 Section 8(1) refers to the the fact the the Commission ( Public Service or Teaching Service) may, in considering any matter or question, consult with any public officer, staff association or other person who is not a member of the Commission.. This seems to suggest that there is an acceptance of association representing Public Officers but there is no further mention in the Act. That being said the Commonwealth network ( rg Americas St Kitts and Nevis Civil Society) stated In St Kitts and Nevis the law permits police, civil servants and members of other organisations to establish associations that serve as unions. The St Kitts and Nevis Trades and Labour Union was originally founded in 1932 as the St Kitts Workers League, it was renamed in 1940 and is now the country s major workers labour organisation. Other large unions in the country are the Nevis Teacher s Union, the St Kitts law and/or 5

10 Teacher s Union and the St Kitts Dock Workers Union. law and/or Education Act 2005 Section 136(j) provides - Every teacher has the right to (j) be a member of a representative body or association and to participate in the lawful activities of the representative body or association of which the teacher is a member. Police Act No. 6 of 2003 Section 72 provides for the establishment of the Police Welfare Association for the purpose of enabling subordinate police officers to consider and bring to the notice of the Chief of Police and the Governor-General matters affecting their general welfare. The Association is not allowed to make representations in relation to any question of discipline, promotion, transfer, or leave unless some question of principle is involved. The 6

11 Association has to be entirely independent of and unassociated with any body outside the Police Force. Section 74 provides that No member of the Police Force shall join a prohibited association and if a member of the Police Force does joins a prohibited association, the officer will be liable, on summary conviction, to a fine not exceeding one thousand dollars, and in addition to that penalty he will be dismissed from the Police Force. law and/or For the purposes of section 74, "a prohibited association"means any league, association, or body of persons, whether registered or not, that has as it objects or one of its objects the promotion of feelings of ill-will and hostility between different classes or races; or any other association, society or club whose objects or object may be subversive of good discipline on part of any member of the Police Force and which the Chief of 7

12 Police declares, with the approval of the Minister, to be a prohibited association. law and/or 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. [See under Article 2] Fire And Rescue Services Act No 6 of 1999 There is also a Fire And Rescue Welfare Association. However, it is not possible to obtain the legislation. Trade Unions Act Chap353 Section 24 provides that the rules of every such trade union shall contain provisions in respect of the matters mentioned in the Second Schedule, i.e. the name of the trade union; the objects for which the Union is established, the purposes for which its funds shall be applicable, and the conditions under which any member may become entitled to any benefit and the fines and forfeitures to be imposed on any member of the trade union;the manner of altering, amending and rescinding rules, the appointment and removal of the general committee of Gap identified The CEACR, in its comments published in 2016, referred to the need for amendment of section 33(2) of the Trade Unions Act as the national legislation should only lay down formal requriements respecting trade unin constituions. (See ex/en/f?p=1000:13100:0::no: 13100:P13100_COMMENT_ID: ) Section 33(2) should be amended in line with the recommendation of the CEACR. 8

13 management and the treasurer and other officers; Provision for the investment of the funds, and for an annual or periodical audit accounts; the inspection of books and and names of members of the trade union by every person having an interest in its funds and the manner of dissolving the trade union. law and/or Section 33(2) of the Act allows the Registrar to demand detailed financial information from unions. Public Sector Police Act No. 6 of 2003 Section 73 provides that The Governor-General may make rules for the Constitution and governance of the Association and any matter appertaining to the Association, and until such rules are made the rules set out in the ThirdSchedule to this Act shall have effect in relation to the constitution, governance and other matters appertaining to the Association. 9

14 law and/or Article 4 Workers' and employers' organisations shall not be liable to be dissolved or suspended by administrative authority. [See under Article 2] Teaching & Public Service: Both the St Kitts Teachers Union and the Nevis Teachers Union have Facebook pages but there is no indication as to their constitutions. However since they are both Unions they would fall within the parameters of the Trade Union Act as would the persons from the Public Service who are represented by the St Kitts and Nevis Trades and Labour Union. There are no provisions in the Public Service Act or the Education Act on the rules of the association. Trade Unions Act Chap353 Section 15 The Registrar may cancel the registration of any trade union at the request of the trade union or on proof to his satisfaction that a certificate of registration has been obtained by fraud or mistake, or that the purposes of the trade union is unlawful or the trade union has violated any of the provisions of this Act or has ceased to exist or the objects of Gap identified The Registrar has discretionary power to determine whether a certificate of registration has been obtained by fraud or mistake, or whether the purposes of the trade union is lawful. This may be tantamount to obtaining previous authorization from the public authority. The discretionary power of the Registrar should be limited. In this respect, consideration may be given to defining clearly in the legislation the precise conditions which trade unions must fulfi l in order to be entitled to registration and on the basis of which the registrar may refuse or cancel registration, and of prescribing specific statutory 10

15 the trade union have been altered and are no longer statutory objects. The Registrar has to give the Trade Union not less than two months previous notice specifying briefly the grounds of the proposed cancellation unless the registration of the trade union had become void. A trade union whose certificate of registration has been withdrawn or cancelled shall, from the time of such withdrawal or cancellation, absolutely cease to enjoy as such the privileges of a trade union, and shall be dissolved and proceed to wind up its affairs, but without prejudice to any liability actually incurred by such trade union, which may be enforced against the same as if such withdrawal or cancellation had not taken place. If after the withdrawal or cancellation of the certificate a trade union continues in active operation, except for the purpose of winding up its affairs, every There does not appear to be any provision that would allow the trade union to appeal a decision of the registrar to cancel the registration of a trade union. law and/or criteria for the purpose of deciding whether such conditions are fulfi lled or not. (See paragraph 302 of Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO available at: p5/groups/public/--- ed_norm/--- normes/documents/publicat ion/wcms_ pdf) There should also be a provision that would allow the trade union to appeal a decision of the registrar to cancel the registration of a trade union. 11

16 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 international organisations of workers and employers. [See under Article 2] secretary, trustee, member of the committee, or other officer of such trade union remaining on office or taking any active part in its operations, shall be guilty of an offence and shall be liable on summary conviction before a magistrate to a penalty not exceeding four dollars and eighty cents for every day during which such trade union continues in active operation. Trade Unions Act Chap353 There is no reference to employers or federation of employers in the Trade Union Act or even to trade unions joining international federations. However, the Trades and Labour Union (TLU) is affiliated with the International Trade Union Confederation. No Gap identified Though there are no specific provisions permitting Workers' and employers' organisations to establish and join federations and confederations, in it appears that they do join other orgainsations. law and/or Article 7 The acquisition of legal personality by workers' and employers' organisations, federations and [See under Article 2] Trade Unions Act Chap353 Section 16 states- Any trade union registered under this Act may purchase or take upon, lease, in the name of the trustees No Gap identified Acquisition of legal personality is not required for registration or operation as a trade union. 12

17 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. for the time being of the union, any land, and may sell, exchange, mortgage or let the land, and no purchaser, assignee, mortgagee or tenant, shall be bound to inquire whether the trustees have authority for any sale, exchange, mortgage, or letting, and the receipt of the trustees shall be a discharge for the money arising therefrom; law and/or Section 17 provides that - All real or personal property whatsoever belonging to any trade union registered under this Act shall be vested in the trustees for the time being of the trade union... Section 19 provides - The trustees of any trade union registered under this Act, or any other officer of such trade union authorized so to do by rules thereof, are hereby empowered to bring or defend, or cause to be brought or defended, any action, suit, prosecution or complaint in any court of law or equity, touching or concerning the 13

18 property, right or claim to property of the trade union; and shall and may, in all cases concerning the real or personal property of such trade union, sue and be sued, plead and be impleaded in any court of law or equity, in their proper names without other description than the title of their office; and no such action, suit, prosecution or complaint shall be discontinued or shall abate, by the death or removal from office of such persons or any of them, but the same shall and may be proceeded in by their successor or successors as if such death resignation or removal had not taken place... law and/or Section 5 -makes it clear that the Court will not entertain any legal proceedings instituted with the object of directly enforcing or recovering damages for any breach relating to the agreements between members of the Union, internal management of the Trade Union or between 14

19 the membership or the members and the Union ( eg payment of subscription, use of funds of the Unions etc). law and/or 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? Thus it is evident that there is no restriction The acquisition of legal personality by workers' organisations. The Public Service Act No 19 of 2011 Section 3 makes it clear that this act does not apply to the Defence force or a civilian working in the Defence Force or to a member of the Police Service There are exceptions in relation to the police inthat it applies to a Commissioned Police Officer and to a civilian working in the Police Force. There is no reference to the Trade Union Act in the Public Service Act Police Act No. 6 of 2003 See under Article 2 of this Convention concerning section 72 of this Act. Commissioned Police Officers and civilian staff of the police force are considered public offiers and covered under the Public Service Act. The remaining staff of the police force is regulated by the Police Act. Military personnel appears to be regulated by the Defence Force Act. If the Defence Force Act does not provide for an association to represent the members, the following consideration may be given: While Convention No. 87 leaves it to each State to decide on the extent to which it was desirable to grant 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 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? [There is reference to the St Kitts and Nevis Defence Force Act of 1997 but the copy of the Act is not available as of preparing of this analysis.] There is no reference to any distinction in relation to employees, that is there is no specific mention of the managerial and executive staff being treated with differently from a regular employee in the Trade Unions Act Chap.353 nor in the Public Service Act Right to Organise and Collective Bargaining Convention, 1949 (No. 98) 16 members of the armed forces the rights covered by the Convention (see Paragraph 224 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/- -- normes/documents/publicatio n/wcms_ pdf), consideration may be given to the possibilty of legislating the right to freedom of associaiton to civilian members of the armed forces. No gap identified. law and/or

21 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 administrative or other practical elements that may make the application of this Article difficult? Q1,&2 There are no provisions in the Public Service Act No 19 of 2011 that would prohibit denial or cancellation of employment due to trade union membership of a worker, The Protection of Employment Act 1986 Section 11- An employer shall not terminate the contract of an employee on any of the following grounds (a) union membership or participation in union activities outside working hours or, with the consent of the employer, within working hours; (b) seeking office as, or acting or having acted in the capacity of a worker s representative; (c) making a complaint or participating on proceedings against an employer involving an alleged violation of laws or regulations; Gap identified The CEACR, in its comment published in 2016, referred to its request to extend the coverage of protection against anti-union discrimination to all stages of employment, while section 11 of the Protection of Employment Act covers only termination of employment. (See ex/en/f?p=1000:13100:0::no: 13100:P13100_COMMENT_ID: ). Fine for breaching section 9 of the Trade Union Act are too low. law and/or Expand the protection under section 11 of the Protection of Employment Act to cover all course of employment, as recommended by the CEACR. Increase fines for breaching section 9 of the Trade Union Act Trade Unions Act Chap353 17

22 Section 9 prohibits a person from forcing other persons to either abstain from doing something or to compel them to do something by intimidation, violence, stalking, hiding their tools, clothes etc or watching or attacking the house or other place. Any person guilty of breaching section 9 is guilty of an offence and on summary conviction will be liable to a fine not exceeding ninety-six dollars (approximatelx 35.6 USD) or to imprisonment for a term not exceeding three months, or to both such fine and imprisonment. law and/or Q3 The Protection of Employment Act 1986 Section 44 (2)provides -Any employer who fails to comply with any of the provisions of this Act...shall be guilty of an offence and on summary conviction shall be liable to a fine not exceeding two thousand dollars. 18

23 Section 44(3) The burden of proof in all matters of termination of employment under this Act shall be on the employer. law and/or 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 of placing such organisations under the control of employers or employers' organisations, shall be deemed to constitute acts of 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 administrative or other practical elements that may make the application of this Article difficult? There is no provison in the legislation that specifically treats with interference by workers and employers organisations. Save an except for Sections 8 and 9 of the Trade Union Act referred to in Article 1 above. Gap identified There is no clear provision that deals with protection against any acts of interference by Workers' and employers' organisations or each other's agents or members in their establishment, functioning or administration with interference There should be a clear provision that provides for protection against any acts of interference by Workers' and employers' organisations or each other's agents or members in their establishment, functioning or administration with interference. 19

24 interference within the meaning of this Article. 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 be taken if the right to organize is violated? None of the relevant pieces of legislation has any reference to a tripartite body. The Labour Ordinance No 8 of 1966 Section 6 provides that the Labour Commissioner can use his office to settle disputes and complaints whether from the employer or worker. Section 11 provides that Inspectors can inspect employment premises and report on whether the laws are being followed and the working conditions of the workers as well as any abuses in realtion to workers. Gap identified No tripartite body is referred to in legislation. law and/or Establishment of a Tripartite Committee (consisting of representatives of government, employersand labour) to identify the needs of all bodies and guide and oversee private-sector development strategies. The Protection of Employment Act 1986 This Act deals with termination of employment and severance payment. Section 43 sets out the procedure to be followed by an aggrieved employer or employee. Any 20

25 employer or employee or any person or organization acting on his behalf, may make a complaint to the Commissioner. law and/or Trade Unions Act Chap353 The only refrence to treating with an aggrieved worker in the Trade Unions Act is section 36(2) in relation to the use of funds for political purposes. Under this section, the aggrieved worker may complain to the Registrar and the Registrar after giving the complainant and any representative of the union an opportunity of being heard, may, if he considers that such a breach has been committed make binding and final order for remedying the breach. Section 39-All matters with penalities attached that are summary offences would go to the Magistrate Court for resolution Article 4 Measures appropriate to national conditions shall be Q. How, through legal or other means, voluntary negotiation There appears to be no legislation giving specific effect Gap identified There should be a provision to encourage employer and 21

26 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. Article 5 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. between employers and workers is encouraged and promoted? Q. How does the national legislation regulate the issues of the right to organize and to collective bargaining with respect to the armed forces and the police? to this provision of the Convention. The Public Service Act No 19 of 2011 Section 3 makes it clear that this act does not apply to the Defence force or a civilian working in the Defence Force or to a member of the Police Service There are exceptions in relation to the police inthat it applies to a Commissioned Police Officer and to a civilian working in the Police Force. Re Public sector see under Article 2 of Convention No. 87. Police Act No. 6 of 2003 See under Article 2 of Convention No. 87 concerning section 72 of the Act. There is no provision in the national legislation to promote and encourage employer and Unions to engage in negotiations. There is no provision in the Trade Unions Act to deal with negotiation and the collective bargaining process. No Gap identified law and/or Unions to engage in negotiations. There should be a provision in the Trade Unions Act to deal with negotiation and the collective bargaining process. 22

27 law and/or [There is reference to the St Kitts and Nevis Defence Force Act of 1997 but the copy of the Act is not available as of preparing of this analysis.] Article 6 This Convention does not deal with the position of public servants engaged in the administration of the State, nor shall it be construed as prejudicing their rights or status in any way. Q1. How does the national legislation regulate the issues of the right to organize and to collective bargaining with respect to civil servants employed in government ministries and other comparable bodies? See under Article 2 of Convention No. 87 in relation to the public sector. See under Article 2 of Convention No. 87 in relation to the public sector. See under Article 2 of Convention No. 87 in relation to the public sector. Q2. How is this provision of the Convention applied in? Are there any administrative or other practical elements that may make the application of this Article difficult? Part II. Elimination of all forms of forced or compulsory labour 23

28 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. Saint Christopher and Nevis Constitution Order 1983 Section 6 provides that a person shall not be held in slavery or servitude or be required to perform forced labour. Section 6(3) indicates that forced labour does not include: -labour required in consequence of the sentence or order of a court; -labour while he is lawfully detained and is reasonably necessary in the interests of hygiene or for the maintenance of the place at which he is detained; - any labour required of a member of a disciplined force or in the case of a conscientious objector any labour he is required to perform in place of duties in the disciplined force; -any labour required during any period of public emergency or in the event any other emergency or calamity that threatens the Gap identified Other than the Constitution, there is no legislation dealing with forced labour comprehensively. law and/or There should be comprehensive legislation on forced labour. 24

29 life or well-being of the community. law and/or Trafficking in Persons ( Prevention) Act No 32 of 2008 Section 2- The definition of trafficking in persons includes exploitation and the definition of exploitation includes forced labour. There is also a separate definition of forced labour but it is not specifically mentioned in the definition of Trafficking in Persons. Section3(1) states- A person who engages in, conspires to engage in, attempts to engage in, assists another person to engage in, or organises or directs another person to engage in trafficking in persons commits an offence and is liable on indictment to imprisonment for a period of twenty years or to a fine of two hundred and fifty thousand dollars (approximately 92,590 25

30 USD) or to both such fine and imprisonment. law and/or Section 4 provides that any person who for the purpose of trafficking in persons, and acting or purporting to act as another person s employer, manager, contractor, supervisor, employment agent, pimp or solicitor of clients, knowingly procures, destroys, conceals, removes, confiscates, or possesses any passport, immigration document, or other government identification document, belonging to another person, commits an offence and shall be liable on indictment to imprisonment for twenty years of to a fine of two hundred and fifty thousand dollars (approximately 92,590 USD) or to both. Section 11 deals with the situation where the offence of trafficking in persons is committed by a body corporate and it is proved to have been committed with the consent or 26

31 connivance of or due to neglect by any person i.e. a director, manager or secretary or other officer of the body corporate or a person who was purporting to act in such capacity, then that person, as well as the body corporate, commits an offence and shall be liable to be punished in the same manner as a person convicted of trafficking in persons. law and/or Section 21 provides that the Minister may by Order appoint an inter-agency task force to develop and implement a National Plan for combating trafficking in persons. This plan does not appear to have been adopted as of preparation of this analysis. See under Article 1 of the Protocol of 2014 to the Forced Labour Convention, 1930 Article 2 1. For the purposes of this Convention the term forced or compulsory labour shall mean Q1. If a national legislation, policy and/or programme to suppress the use of Saint Christopher and Nevis Constitution Order 1983 Section 6(3) indicates that forced labour does not include: Gap identified. Trafficking in Persons (Prevention) Act contains See under Article 1. There should be a comrephensive law on forced labour. 27

32 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. 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 forced or compulsory labour exist, how do they define the term forced or compulsory labour? Q2. Does the national legislation contain any exemption in this regard? -labour required in consequence of the sentence or order of a court; -labour while he is lawfully detained and is reasonably necessary in the interests of hygiene or for the maintenance of the place at which he is detained; - any labour required of a member of a disciplined force or in the case of a conscientious objector any labour he is required to perform in place of duties in the disciplined force; -any labour required during any period of public emergency or in the event any other emergency or calamity that threatens the life or well-being of the community. Trafficking in Persons ( Prevention) Act No 32 of 2008 Section 2- exploitation includes (a) keeping a person in a state of slavery; (b) subjecting a person to detailed defintions of terms such as exploitation, forced labour or trafficking in persons, but the scope of this Act is limited to trafficking in persons. The CEACR, in its comments published in 2014, requested the amendment of section 193(5) of the Prisons Act, since the work of prisoners for private parties is only compatible with the Convention where it does not involve compulsory labour and is carried out with the informed, formal and freely given consent of the persons concerned, performed under conditions approximating a free labour relationship, which include wage levels (leaving room for deductions and attachments), social security and occupational safety and health. (See ex/en/f?p=1000:13100:0::no: law and/or Section 193(5) of the Prisons Act should be amended in line with the recommendation of the CEACR. 28

33 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 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 s similar to slavery; (c) compelling or causing a person to provide forced labour or services; (d) keeping a person in a state of servitude, including sexual servitude; (e) the prostitution of a person or engaging in any other form of commercial sexual exploitation,including but not limited to pimping, pandering, procuring, profiting from prostitution, maintaining a brothel and child pornography; (f) illicit removal of human organs. forced labour means labour or services obtained or maintained through force, threat of force, or other means of coercion or physical restraint; trafficking in persons means the recruitment, transportation, transfer, harbouring or receipt of a person by means of the threat or use of force or other means of coercion, or by abduction, fraud, 13100:P13100_COMMENT_ID: ) law and/or 29

34 shall have the right to be consulted in regard to the need for such services. deception, abuse of power or a position of vulnerability, or by the giving or receiving of payment or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation; law and/or Protocol of 2014 to the Forced Labour Convention, 1930 Article 1 [For Articles 1-3] 1. In giving effect to its obligations under the Q1. If a national Convention to suppress forced legislation, policy or compulsory labour, each and/or programme to Member shall take effective suppress the use of measures to prevent and forced or compulsory eliminate its use, to provide to labour exist, do they victims protection and access contain measures to: to appropriate and effective (i) prevent and remedies, such as eliminate its use; compensation, and to sanction Prison Act (Cap 19.08) Section 193(1) provides that prison labour is compulsory for convicted prisoners. Pursuant to section 193(5), a prisoner may be employed for the private benefit of any person, in pursuance of special rules. Q1 (i) Trafficking in Persons ( Prevention) Act No 32 of 2008 As stated in Article 1 of the Convention, the Act provides protection for persons who fall under the definition of exploitation which includes forced labour. It is anticipated that the penalities imposed would prevent it s use. 30 Gap identified General - National Plan mentioned in section 21 of the Trafficking in Persons (Prevention) Act does not appear to have been adopted. The Trafficking in Persons (Prevention) Act contains some provisions relevant to this Protocol, but the legal provisions do not provide for There should be a national plan on forced labour, at least on trafficking in presons, as provided for in section 21 of the Trafficking in Persons (Prevention) Act. The implementation of the plan concerning trafficking in persons may be monitored by the task force envisaged under section 21(2) of the

35 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. (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 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 (ii) and (vii) Trafficking in Persons ( Prevention) Act No 32 of 2008 Section 6 provides that where a a person is convicted of the offence of trafficking in persons the court may order that person to pay restitution to the victim. Section 16 of the Act sets out the guidelines that law enforcement officials are to comply with to protect a trafficked person ( a victim). That is : identifying the victims of the trafficking, putting measures in place to prevent recapture, securing the victim and their families from threats, reprisals and intimidation by the traffickers and their associates; ensuring that the victim has an opportunity to consult with a victim s advocate or other appropriate person to develop a safety plan. Section 17- In a prosecution for trafficking in persons under this specific actions on points (i) to (ix). There is no data available or statistics in relation to trafficking in persons or forced labour. law and/or Act. Such body may be tripartite. 31

36 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) studying the root causes of forced or compulsory labour and reflecting the results to legislation, national policies or programmes. Q2. What are the progress and results achieved by these measures? Act, the identity of the victim and the victim s family must be kept confidential by ensuring that names and identifying information of the victim and the victim s family are not released to the press or the public, including by the defendant. The hearing must be held in camera if the court so orders. Section 19(1) provides that Child trafficked victims may be provided with appropriate services, which may include understanding of their rights, privacy, housing, care and age appropriate support and rights as is applicable to the particular circumstances of each case. Section 19(3) Whenever safe and practicable, reasonable measures may be taken to reunite a child with his family members in Saint Christopher and Nevis or in his country of origin. law and/or (iii) 32

37 Q3. Are employers and workers organization involved in implementing measures mentioned under Q1 above? If so, how are they involved? Trafficking in Persons ( Prevention) Act No 32 of 2008 See under Article 1 of Convention No. 29 for the provisions of Sections 3(1) and 4. (iv) & (v) Trafficking in Persons ( Prevention) Act No 32 of 2008 Section 21 - The Minister may by Order appoint an inter-agency task force to develop and implement a National Plan for combating trafficking in persons. (2) Where a task force is appointed pursuant to subsection (1) the functions of the task force shall include: (f) in conjunction with nongovernmental organisations and relevant government agencies to prepare and disseminate public awareness materials on discouraging trafficking in persons and to educate potential victims and their families. law and/or 33

38 The legislation does not make special mention of employers but it is submitted that a public awareness campaign would capture them. law and/or This National Plan mentioned in the section 21 does not appear to have been adopted as of preparation of this analysis. (vi) Trafficking in Persons ( Prevention) Act No 32 of 2008 Section13 -where a Magistrate is satisfied by information on oath that there are reasonable grounds for suspecting that evidence of or relating to an offence under the Act to be found on certain premises, the Magistrate may issue a warrant to authorise an officer to enter the specified premises with such assistance and such force as is necessary, to search for evidence and to seize any article, vehicle or property found in the course of the search that the constable 34

39 believes, on reasonable grounds, to be evidence of or relating to an offence under the Act. law and/or It should be noted that there is legislation that allows for inspection of premises in relation to conditions of workers ie Labour Ordinance No 8 of 1966 Section 11 provides that the duties of a Labour Inspector are to investigate and report whether the laws in force concerning conditions of employment and the protection of workmen are duly applied; to give technical information and advice; to indicate in his inspection reports difficulties or abuses not specifically covered by existing laws; to visit and inspect places where workmen are employed; and to establish statistical data. Section 12 provides that the labour Inspector can at any working hour of the day or night without previous notice, enter and inspect any undertaking; 35