Observation (CEACR) - adopted 1994, published 81st ILC session (1994)

The Committee notes the Government's report and the report on the direct contacts mission that took place from 4 to 8 October 1993.

Articles 1 and 2 of the Convention. For several years, the Committee has been asking the Government to adopt provisions establishing means of redress and sufficiently effective and dissuasive sanctions for acts of anti-union discrimination and interference.

In this connection, the Committee notes with satisfaction that Act No. 7360 of 4 November 1993 meets the Committee requests. The new Act:

- establishes as punishable offences "actions or omissions on the part of employers, workers or their respective organizations, which are in breach of the standards laid down in the Conventions adopted by the International Labour Organization, ratified by the Legislative Assembly (including the provisions of Convention No. 98 which prohibit anti-union discrimination and interference) as well as the standards set out in the present Code and the laws on social security". The new Act contains a table of penalties, which may be of up to 23 months of minimum wages;

- prohibits "actions or omissions aimed at avoiding, limiting, placing constraints on or preventing the free exercise of the collective rights of workers, their unions or coalitions of workers", and also establishes that "any act arising therefrom shall be null and void and shall be penalized under provisions of the Labour Code and its supplementary or appended acts concerning breaches of prohibitive provisions";

- guarantees job stability for the members of trade unions in the process of being formed (for up to four months), certain trade union officials (while they are in office and for up to six months afterwards) and candidates for the executive committee (for three months from the date on which they submit their candidature). It provides that, in the event of unwarranted dismissal of the workers thus protected, "the competent labour court shall declare such dismissal null and void and shall subsequently order the reinstatement of the worker and payment of all outstanding wages, in addition to penalties for which the employer is liable pursuant to this Code and its supplementary and appended acts".

The Committee also notes with interest that Act No. 7135 of 11 October 1989 provides for a right of appeal ("recurso de amparo") by individuals, whereby the effects of the impugned act under challenge may be provisionally suspended and the dismissed union officials reinstated, as was ruled by the Constitutional Chamber of the Supreme Court of Justice in October 1993. See also under Convention No. 87.]

Articles 4 and 6 (Right to collective bargaining of public employees not engaged in the administration of the State). In its previous observation the Committee expressed the hope that the Bill on collective bargaining in the decentralized public sector would shortly be adopted.

In this connection the Committee notes the Government's statement in its report that, since the Labour Code does not apply to the public sector, the Central Labour Council (a tripartite body) drafted regulations to fill the legal void, and the Government Council adopted it by means of Directive No. 162 of 9 October 1992 which guarantees workers' right to collective bargaining. Section 18 specified that the Regulations were provisional pending the submission to the Legislative Assembly of a Bill on dispute settlement in the public sector. The Committee also notes from the Government's report that a bipartite committee (government-unions) has been negotiating the above bill since May 1993 and the results achieved are satisfactory to both parties. Furthermore, an agreement signed on 8 November 1993 by the Government and certain union organizations contains a commitment to complete the text at the latest by the last day of February next year so that the Executive can present it to the Legislative Assembly. If the whole text cannot be submitted, at least the parts concerning collective bargaining and strikes in the public sector will be presented. The Government points out that the ILO's suggestions have been carefully followed in this matter.

The Committee hopes that the legislation on collective bargaining in the public sector will be adopted in the near future and that it will be in line with the provisions of the Convention, and asks the Government to keep it informed in this respect.