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Vanuatu Sessional Legislation |
REPUBLIC OF VANUATU
No. 3 of 1983
Arrangement of Sections
PART 1 - PRELIMINARY
1. Interpretation.
2. Trade unions etc as parties to disputes.
PART 2 - INDIVIDUAL DISPUTES BETWEEN EMPLOYERS AND WORKERS
3. Conciliation in individual disputes.
4. Labour officer to promote settlement.
5. Power of labour officer in a dispute.
6. Memorandum of conciliation.
PART 3 - CONCILIATION AND ARBITRATION IN TRADE DISPUTES
7. Commissioner to offer assistance towards settlement.
8. Apointment conciliator.
9. Duties of conciliator.
10. Effects of conciliation.
11. Request for arbitration.
12. Minister may set up board of arbitration.
13. Board to make award in without delay.
14. Matters to be considered by Board.
15. The making of an award.
16. Vacancies on Board not to invalidate proceedings.
17. Board may correct mistakes etc.
18. Effects of awards and settlements.
19. Awards and settlements not to conflict with law.
20. Communications in arbitration and conciliation privileged.
21. Admission of legal practitioners etc.
22. Evidence.
23. Expenses of conciliation or arbitration.
24. Remuneration of conciliators and Board members.
PART 4 - TRADE DISPUTES AFFECTING ESSENTIAL SERVICES
25. Definition of 'essential service'.
26. Conciliation or arbitration to commence forthwith.
27. President may proclaim emergency pending settlement.
28. Proclamation of emergency.
29. Powers of Minister.
30. Protection for administering proclamation of emergency.
31. Government may recover cost of providing essential service.
32. Presumptive provision in awards applicable to essential services.
33. Prohibition of strike and lock-outs during emergency.
PART 5 - PROVISIONS WITH RESPECT TO STRIKES, LOCK-OUTS ETC.
34. Minister may order industrial action to be discontinued or deferred.
35. Peaceful picketing.
36. Secondary action.
37. Intimidation or annoyance.
PART 6 - MISCELLANEOUS
38. The President may set up Commissions of Inquiry into trade disputes.
39. Conspiracy in trade disputes.
40. Application of the Act to Government and Public Service.
41. Commencement.
REPUBLIC OF VANUATU
THE TRADE DISPUTES ACT No. 3 OF 1983
| Assent | 31/3/83 | |
| Assent | 6/6/83 | |
An Act to make provision for settlement of trade disputes by conciliation or arbitration and for matters incidental hereto.
PART 1 - PRELIMINARY
In this Act, unless the context otherwise requires -
'arbitration proceedings' means proceedings taken before a board, under this Act, with a view to bringing about a settlement of a trade dispute by arbitration between the parties;
'board' means a board of arbitration set up under section 12;
'Commissioner' means a person holding the office of the Commissioner of Labour under the Employment Act 1983;
'conciliation proceedings' means proceedings taken before a conciliator under this Act with a view to bringing about a settlement of a trade dispute by conciliation between the parties;
'conciliator' means a person appointed by the Commissioner under section 8 with a view to bringing about a settlement of a trade dispute by conciliation between the parties;
'irregular industrial action short of a strike' means any concerted course of conduct (other than a strike) which, in contemplation or furtherance of a trade dispute, -
- (a) is carried on by a group of workers with the intention of preventing, reducing or otherwise interfering with the production of goods or the provision of services, and
- (b) in the case of all or some of them, is carried on in breach of their contracts or employment;
'labour officer' means a person holding the office of a labour officer under the Employment Act 1983;
'Labour Advisory Board' means the Labour Advisory Board appointed under the Employment Act 1983;
'lock-out' means action which, in contemplation or furtherance of a trade dispute, is taken by one or more employers, whether parties to a dispute or not, and which consists in the exclusion of workers from one or more factories, offices or other places of employment or in the suspension of work in one or more such places or in the collective, simultaneous or otherwise connected termination or suspension of employment of a group of workers;
'registered trade union' means a trades union registered under the Trade Unions Act 1983;
'strike' means a concerted stoppage of work by a group of workers in contemplation or furtherance of a trade dispute, whether they are parties to the dispute or not, and whether (in the case of all or any of those workers) it is or is not in breach of their contracts of employment;
'trade dispute' means a dispute between employers and workers or between workers and workers, which is connected with one or more of the following -
- (a) the terms and conditions of employment, or the physical conditions in which any workers are required to work;
- (b) engagement or non-engagement, or termination or suspension of employment or the duties of employment, of one or more workers;
- (c) allocation of work or the duties of employment as between workers or groups of workers;
- (d) matters of discipline;
- (e) the membership or non-membership of a trade union on the part of a worker;
- (f) facilities for officials of trade unions;
- (g) machinery for negotiation or consultation, and other procedures relating to any of the foregoing matters, including the recognition by employers or employers' associations of the right of a trade union to represent workers in any such negotiation or consultation or in the carrying out of such procedures;
‘worker' means a person who works or normally works or seeks to work -
- (a) under a contract of employment; or
- (b) under any other contract (whether express or implied, and if express, whether oral or in writing) whereby he undertakes to perform personally any work or services for another party to the contract who is not a professional Client of his.
A trade dispute to which a registered trade union or an employers' association is a party shall be treated for the purposes of this Act as a trade dispute to which workers or, as the case may be, employers are parties.
PART 2 - INDIVIDUAL DISPUTES BETWEEN EMPLOYERS AND WORKERS
Where a dispute other than a trade dispute as defined in section 1, between a worker and his employer arises from, or in connection with, the terms and conditions of a contract of employment or the manner of its performance, either party may request a labour officer to assist with a view to bringing about a settlement of the dispute by conciliation.
Where a request referred to in section 3 is made to a labour officer, and the labour officer considers that he can act upon such request with a reasonable prospect of success, it shall be his duty without delay to endeavour to promote a settlement of the dispute without its being determined by a Court.
(1) For the purposes of the exercise of his functions under section 4 a labour officer may -
(a) require the parties to the dispute and any other person whom he has reason to believe can give information relevant to the matter in dispute, to appear before him at an appointed time and place;
(b) require any person to produce any documents or records touching upon the matter in dispute in the possession or under the control of such person.
(2) A person who -
(a) fails to comply with any requirement of a labour officer under subsection (1); or
(b) knowing gives to a labour officer an information false in any material particular;
shall be guilty of an offence.
A memorandum recording the terms of the conciliation or default thereof shall be drawn by the labour officer before whom the conciliation proceedings have taken place, and shall be signed by him and by the parties. The terms of such memorandum shall be binding on the parties to the dispute.
PART 3 - CONCILIATION AND ARBITRATION IN TRADE DISPUTES
(1) Where a trade dispute exists or is apprehended the Commissioner may, at the request of one or more parties to the dispute or otherwise, offer the parties to the dispute assistance with a view to bringing about a settlement of the dispute.
(2) The Commissioner shall consider the likelihood of the dispute being settled otherwise than under the provisions of this Act and, where there exist appropriate agreed procedures for negotiation of the settlement of disputes, shall not take any action with a view to instituting conciliation or arbitration proceedings under this Act, unless those procedures have been used and have failed to result in a settlement or unless, in the opinion of the Commissioner there is a special reason which justifies conciliation or arbitration under this Act as an alternative to those procedures.
If the Commissioner considers that there is a reasonable prospect of bringing about a settlement of a trade dispute by conciliation he may appoint a person to be a conciliator in the dispute.
(1) It shall be the duty of the conciliator without delay to endeavour to promote a settlement of the dispute by conciliation and, for this purpose, he shall have the powers of a labour officer set out in section 5 and may require all or any of the parties to submit to him a report in writing -
(a) setting out the matters in issue between them, and
(b) stating the efforts if any, that have been made by any party or other person with a view to bringing about a settlement.
(2) Section 5(2) shall apply in relation to proceedings before a conciliator as it applies in relation to proceedings before a labour officer.
(1) If the conciliator succeeds in bringing about a settlement of a trade dispute, in full or in part, he shall prepare a memorandum setting out the terms and conditions of the settlement. The memorandum shall be signed by all the parties to the dispute and shall be endorsed by the conciliator, and thereupon the terms of the settlement shall have the effect of an award made by a board.
(2) If the conciliator fails to bring about a settlement of a trade dispute within 21 days of the date of his appointment, or such further period as the Commissioner may allow, he shall prepare and furnish to the Commissioner a full report on the subject matter of the dispute, the process of conciliation and such matters, if any, as may have been settled between the parties in the course or as a result thereof.
If the Commissioner considers that there is a reasonable prospect of bringing about a settlement of a dispute, in whole or in part, by arbitration, he may, subject to a written consent of all the parties to the dispute, recommend to the Minister that the dispute, or any outstanding part thereof, be referred to a board of arbitration.
Upon the receipt of the Commissioner's recommendation under section 11 the Minister may refer the dispute, or any outstanding part thereof, to a board of arbitration which shall consist of -
(a) a sole arbitrator appointed by the Minister; or
(b) a chairman and an equal number of members experienced in industrial relations as representatives of employers and representatives of workers respectively, all appointed by the Minister.
The board shall make its award without delay and, in any case, not later than 21 days from the date of the reference of a dispute thereto;
Provided that the minister may, if in his opinion it is necessary or desirable to do so, extend such period as he may think fit.
In making an award or other decision with a view to a settlement of a trade dispute the board shall, in addition to the rights and interests of the parties to the dispute, consider the effects such award or decision may be likely to have on the social and economic development of Vanuatu.
Any award or other decision of a board constituted under section 12(b) must be made unanimously by all the members of the board or, if the members cannot reach an unanimous decision, by the chairman.
Whenever a board consists of more than one person and a vacancy occurs in their number the board may, with the consent of all the parties to the trade dispute, continue to act notwithstanding such vacancy, and if such consent has ben obtained, no award or other decision of the board shall be called in question or held invalid by reason of any such vacancy.
(1) The board may correct in any award any clerical mistake or error arising from an accidental slip or omission.
(2) If any question arises as to the interpretation of an award any party to the award may apply to the board for a decision on that question.
(3) The board shall decide any such question after hearing the parties or, if the parties consent, without a hearing, and shall notify the parties of the decision.
An award or settlement resulting from any arbitration or conciliation proceedings shall be binding upon the parties to the trade dispute for such period, not being less than one year, as may be specified in the award or settlement, and may be made with retrospective effect.
No award or settlement resulting from any arbitration or conciliation proceedings shall be made which is inconsistent with any written law.
Anything communicated to a board or to any person conducting or presiding over any conciliation or arbitration proceedings, shall not be admissible in evidence in any proceedings before a court, except with the consent of the party who communicated it to such board or person.
In any conciliation or arbitration proceedings it shall be in the discretion of the person conducting or presiding over such proceedings -
(a) to permit or refuse to permit any interested party to appear by a legal practitioner, and, in the case of a worker, by, or with the assistance of, an officer of a registered trade union of which he is a member; and
(b) to admit or to exclude members of the public or representatives of the press from attending such proceedings.
Any person or board acting in the exercise of their functions shall be
PART 4 - TRADE DISPUTES AFFECTING ESSENTIAL SERVICES
In this Part the expression 'essential services' means -
(a) any of the following services or facilities ordinarily available to the public -
- (i) air traffic control;
- (ii) fire fighting;
- (iii) generation and supply of electricity;
- (iv) health and sanitary services;
- (v) lighthouses or other navigational safety devices;
- (vi) meteorological services;
- (vii) rescue services (land, sea and air);
- (viii) postal and telecommunication services;
- (ix) water and sewerage;
(b) any activity concerned with supplying any thing necessary for maintaining any service or facility specified in paragraph (a);
(c) any other service, facility or activity declared by the Minister by order to be an essential service for the purposes of this Part.
Where a trade dispute, which in the opinion of the Minister, constitutes a threat of a serious disruption of, or interference with, the proper and orderly maintenance or management of an essential service, exists or is apprehended, the Minister shall forthwith take such action and issue such directives as may appear to him necessary or conducive to bringing about a settlement of the dispute by conciliation or arbitration in accordance with the provisions of Part 3.
Pending a settlement of a trade dispute referred to in section 26, the President on the advice of the Prime Minister, may issue a proclamation of emergency in relation to the essential service in question.
(1) A proclamation of emergency in relation to any essential service may be limited as to time, place and circumstance.
(2) The President may determine that any Minister nominated in the proclamation of emergency shall have, in respect of the essential service to which the proclamation relates all or any of the powers specified in section 29.
(3) A proclamation of emergency shall be in force for a period specified therein not exceeding one month, but the President may, by further proclamation, extend its operation for a further period which shall not exceed one mont.
(1) The Minister nominated under section 28(2) may provide, operate, maintain, control and regulate the essential service in respect of which he is nominated, during the period of emergency and for that purpose may exercise all the rights of an employer of labour in that essential service.:
(2) Without limiting the generality of subsection (1), the Minister nominated under section 28(2) may, for the purpose of exercising the powers under that subsection, by order -
(a) prohibit persons employed in the essential service from commencing a strike, or direct persons ordinarily employed in connection therewith who are engaged in a strike, to terminate such strike;
(b) direct what activities shall be performed for the purposes of the essential service and the terms and conditions upon which that essential service shall be provided;
(c) direct at what times and places and upon what terms and conditions and in what manner the essential service may be used;
(d) prohibit the provision, operation or maintenance of the essential service except with his consent first and had obtained;
(e) authorize any person to enter upon any land, building or structure used in, or in connection with, the provision operation or maintenance or the essential service;
and may provide by order for any matter incidental to the exercise of the power conferred by this section.
(3) A person authorized by the Minister under subsection (2) (e) shall be entitled to enter upon the land, building or structure specified in the authority and therein to do -
(a) all such acts and things as he is directed under subsection (2) to do
(b) all such acts and things as, in his opinion should be done in the provision, operation and maintenance of the essential service for the purpose of which the land, building or structure is used.
(4) A person who is required to perform any activity for the purpose of complying with a direction given under subsections (2) and (3) shall be deemed to have entered into a contract of service with the Government to perform that activity in the course of his employment.
(5) Any person who fails to comply with any direction or prohibition under this section shall be guilty of an offence.
No person shall incur any liability on account of anything done under this Part without negligence and in good faith in a belief on reasonable grounds that it is authorized under section 29 to be done.
Any expenses incurred by the Government in, or in connection with, the provision, operation or maintenance of an essential service in pursuance of an order under section 29 may be recovered from the person ordinarily responsible for the provision, operation or maintenance of that service, as a civil debt owing by him to the Government;
Provided that the amount of the expenses recoverable under this section shall not exceed the amount of the expenses which would have been incurred by that person in, or in connection with, the provision, operation or maintenance of that service if an order under section 29 had not been made in respect thereof.
During a period of emergency existing in relation to any essential service every award or agreement applicable to work in that service shall be deemed to contain a provision that requires all workers engaged therein to work on the terms and conditions of the award or agreement and to perform the work in a manner customarily required of workers under that award or agreement.
33. Without prejudice to section 34 any person who -
(a) engages or continues to engage in a strike;
(b) institutes a lock-out against workers who ordinarily work in the provision, operation or maintenance of an essential service;
contrary to an order made by the Minister under section 29, shall be guilty of an offence.
PART 5 - PROVISION-- WITH RESPECT TO STRIKES, LOCK-OUTS ETC.
(1) Where it appears to the Minister -
(a) that in contemplation or furtherance of a trade dispute, industrial action, consisting in a strike, or irregular industrial action short of a strike, or a lock-out, has begun or is likely to begin; and
(b) that the condition stated in subsection (2) is fulfilled; and
(c) that it would -
- (i) be conducive to a settlement of the dispute by conciliation or arbitration under this Act; or
- (ii) assist in the exercise of its functions by a Commission of inquiry set up in pursuance of section 38;
- if the industrial action were discontinued or deferred;
the Minister may, make an order directing that, during the period for which the order remains in force, no person or a member of a class of person specified in the order shall -
- (i) call, organise, procure or finance a strike, or any irregular industrial action, or threaten to do so;
- (ii) institute, carry on organise, procure or finance a lockout or threaten to do so.
(2) The condition referred to in subsection (1) is that the industrial action in question, has caused or would cause an interruption in the supply of goods or in the provision of services of such a nature, or on such a scale, as to be likely -
(a) to be gravely injurious to the national economy, to imperil national security or to create a serious risk of public disorder; or
(b) to endanger the lives of a substantial number of persons, or expose a substantial number of persons to serious risk of disease or personal injury.
(3) An order under this section shall specify -
(a) the industry, undertaking (or a part thereof), and the description of workers in respect of which the order is to have effect, or all or any of these matters;
(b) the persons or description of persons who are to be bound by the order;
(c) the date on which the order is to take effect and the period, not exceeding 60 days, for which the order, unless revoked earlier, shall remain in force.
(4) Any person contravening or failing to comply with any of the directions contained in an order under this section shall be guilty of an offence; provided that no prosecution in respect of such offence shall be instituted except by, or at the instance of, or with the written consent of the Attorney General.
(5) The immunity against liability in tort conferred-on a registered trade union or any other person by, or in pursuance of, section 18 or 19 of the Trade Unions Act 1983 shall not apply with respect to any act which constitutes an offence under this section.
(1) It shall be lawful for a person acting in contemplation or furtherance of a trade dispute to attend -
(a) at or near his own place of work; or
(b) if he is an official of a registered trade union, at or near the place of work of a member of that union whom he is accompanying, for the purpose of peacefully obtaining or communicating information, or peacefully pursuading any person to work or abstain from working:
(2) If ,a person works or normally works —
(a) at more than one place; or
(b) at' a place the location of which is such that attendance there for a purpose mentioned in subsection (1) is impracticable;
his place of work, for the purpose of that subsection, shall be any premises of his employer from which he works or from which his work is administered.,
(3) In the case of a worker who is not currently in employment and whose last employment was terminated in connection with a trade dispute, the reference to his place of work in subsection (1) shall be taken as a reference to his last place of work.
(4) Notwithstanding anything in section 18 or 19, of the Trade Unions Act, 1983 the immunity conferred by those sections shall not prevent any act done in the course of picketing from being actionable in tort unless such act is done in the course of attendance declared lawful by subsection (1) above.
(5) Nothing in this section shall be taken to confer on any person the right to enter upon private property against the will of the owner.
(1) The immunity conferred by sections 18 and 19 of the Trade Unions Act 1983 shall not apply where a person induces a breach of contract, other than a contract of employment, by means of secondary action which does not satisfy the conditions set out in subsection (3).
(2) For the purpose of this section there is secondary action in relation to a trade dispute when, and only when, a person –
(a) induces another to break a contract of employment or interferes or induces another to interfere with its performance; or
(b) threatens that a contract of employment will be broken or interfered with or that he will induce another to do so.
if the employer under the contract of employment is not a party to the trade dispute.
(3) The conditions referred to in subsection (1) are -
(a) that the purpose or principal purpose of the secondary action is directly to prevent or disrupt the supply during a trade dispute of goods or services between an employer who is a party to the dispute and an employer whose workers are taking the action, and the action is likely to achieve that purpose; or
(b) where the secondary action involves workers of associated employers of the employer in dispute or workers of their customers, that the purpose or principal purpose of the secondary action is directly to prevent or disrupt the supply during the dispute of goods or services from the associated employer to the customer, which but for the dispute would have been supplied by the employer in dispute, and the action is likely to achieve that purpose; or
(c) where the secondary action involves workers of associated employers of the employer in dispute or workers of their suppliers, that the purpose or principal purpose of the secondary action is directly to prevent or disrupt the supply during the dispute of goods or services to the associate employer from the supplier, which but for the dispute would have been supplied to the employer in dispute, and the action is likely to achieve that purpose; or
(d) that the secondary action is taken in the course of peaceful picketing declared lawful by section-35.
(4) For the prupose of subsection (3) (b) and (c), any two employers are to be treated as associated if one is a company of which, the other (directly or indirectly) has control, or if both are companies of which a third person (directly or indirectly) has control
Every person who, with a view to compelling any other person to do or to abstain from doing any act which such. other person has a right to do or abstain from doing, wrongfully and without legal authority -
(a) uses violence to or intimidates such other person or his wife or children, or damages his property; or
(b) persistently follows such other person about from place to place; or
(c) hides any tools, clothes or other property owned or used by such other persons, or deprives him or hinders him in the use thereof; or
(d) watches or. besets the house or other place where such person resides or works or carries on business or happens to be or the approach to such house or place; or
(e) follows such other person in disorderly manner, in or: through any street or road,
Shall be guilty of an offence
Penalty: a fine not exceeding 100,000 vatu and imprisonment for term not exceeding three years.
PART 6 - MISCELLANEOUS
(1) Where a trade dispute exists or is apprehended any
(a) the dispute raises in the opinion of the President, issues of grave importance to the national economy or any section thereof; and
- (b) (i) all steps to bring about a settlement such, dispute by conciliation or arbitration under this act, or by any other means, have failed; or
- (ii) there is no reasonable prospect, in the opinion of the President, of bringing about a settlement of the dispute by such conciliation, arbitration or other means,
the President may, on the advice of the Prime Minister, tendered after consultation with the Labour Advisory Board, set up a Commission of Inquiry to consider, and report to him, on the causes of the dispute and the circumstances in which it arose, and to make recommendations in respect thereof.
(2) A Commission of Inquiry referred to in subsection (1) shall be set up, and proceed in accordance with, and have all the powers conferred upon it by, the law relating to the setting up, procedure and powers of Commissions of Inquiry.
(1) An agreement or combination by two or more persons to do or procure to be done any act in contemplation or furtherance of a trade dispute shall not be punishable as a conspiracy if such act committed by one person would not be punishable as a crime.
(2) Nothing in subsection (1) shall affect the law relating to riot, unlawful assembly, breach of the peace, or sedition, or any offence against the State.
(1) Except as provided in subsection (3) and subject to the modifications set out in subsection (2), the provisions of this Act shall apply in relation to -
(a) the Government and members of the public service of Vanuatu, and
(b) any registered trade union the majority or a substantial number of members of which consists of members of the public service of Vanuatu,
as they apply to any other employer, person or registered trade union.
(2) The modifications mentioned in subsection (1) are as follows -
(a) except in sections 28, 29, 33 and 41, the references to the Minister shall be taken as references to the Minister responsible for matters relating to public service;
(b) the functions of the Labour Advisory Board shall he exercised by the Public Service Commission;
(c) the powers and duties of the Commissioner of Labour shall vest in the Director of Public Service Department;
(d) the powers and duties of a Labour Officer shall vest in the Director of the Public Service Department or an officer appointed by him for that purpose.
(3) Nothing in this Act shall apply in relation to members of the armed forces, police force or prison service.
This Act shall come into operation on such date as the Minister shall by order appoint.
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