Direct Request (CEACR) - adopted 2003, published 92nd ILC session (2004)

With reference to its observation, the Committee notes with interest the entry into force of Act No. 1/015 of 29 November 2002 issuing regulations on the exercise of the right to organize and the right to strike in the public service and wishes to draw the Government’s attention to the following points.

Article 2 of the Convention. Right of workers and employers, without distinction whatsoever, to establish and join organizations of their own choosing. The Committee notes that section 8 of the Act sets the minimum number of 50 members of unions of public servants when they are established. Section 24 provides that no union may continue unless it demonstrates that it has more than the required minimum number of members. The Committee recalls that, although the requirement of a minimum number of members for the establishment of an organization is not in itself incompatible with the Convention, the number should be fixed in a reasonable manner so that the establishment of organizations is not hindered (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 81). In the Committee’s view, the requirement of a minimum of 50 members fixed by law is excessive. The Committee therefore requests the Government to take the necessary measures to amend section 8 so that the minimum number of members required to establish a union is reduced so as to guarantee effectively the right of public servants to establish and join organizations of their own choosing, in accordance with Article 2 of the Convention.

Article 3. Right of workers’ and employers’ organizations to draw up their constitutions and rules, to elect their representatives in full freedom, to organize their administration and activities and to formulate their programmes without the interference of the public authorities. The Committee notes that section 10 establishes a length of service of at least three years in the public service as an eligibility condition to be a union leader. The Committee recalls that the autonomy of organizations can only be effectively guaranteed if its members have the right to elect their representatives in full freedom. The public authorities should therefore refrain from any intervention likely to hinder the exercise of this right, in particular concerning the eligibility conditions for the leaders. The issue of length of service as an eligibility condition should therefore be left to the discretion of the organizations and their members. The Committee therefore requests the Government to take the necessary measures to amend section 10 and to eliminate length of service as an eligibility condition for union leaders so that public servants may elect their representatives in full freedom in accordance with Article 3.

The Committee notes that section 7 of the Act provides that, in the event of a leadership conflict in a union, the Minister of Public Service may refer the matter to the Administrative Chamber of the Supreme Court for resolution. The Committee emphasizes that the resolution of any internal conflict in a union should be left to the decision of the union members themselves, without any intervention by the public authorities. The Committee therefore considers that it should, at the very least, be for the members of the union to refer the matter to the Administrative Chamber of the Supreme Court. It requests the Government to take the necessary measures to amend section 7 so that the resolution of an internal conflict in a union, or at the very least the initiative of doing so, is left at the discretion of its members in order to guarantee fully the right of workers’ organizations to organize their administration and activities in full freedom in accordance with Article 3.

The Committee duly notes that the right to strike of public servants is recognized, with the exception of holders of public office and those responsible for grading, by virtue of section 27 of the Act. The Committee notes however that, for a strike to be legal, it has to fulfil a number of conditions, including: (1) prior notification must be given specifying the length of the strike, in accordance with section 30; and (2) it must be called by a group of public servants, whether or not they are unionized, after approval by an absolute majority of the personnel of the public service concerned, in accordance with section 31 of the Act. The Committee considers that imposing a legal obligation on workers and their organizations to specify the length of a strike may limit their right to organize their administration and activities and formulate their programmes in full freedom. With regard to the approval of the strike by the absolute majority of the personnel in the public service concerned, although the principle of such approval is not incompatible with the Convention, the Committee emphasizes that the ballot method, the quorum and majority required should not be such that the exercise of the right to strike becomes very difficult in practice. The requirement of an absolute majority of all the personnel has always been deemed excessive by the Committee; if a member State deems it appropriate to establish in its legislation provisions which require a vote by workers before a strike can be held, it should ensure that account is taken only of the votes cast, and that the quorum and majority are fixed at a reasonable level (General Survey, op. cit., paragraph 170). The Committee therefore requests the Government to take the necessary measures to amend sections 30 and 31 in order to ensure, on the one hand, that there is no obligation to specify the length of the strike in the strike notice and, on the other hand, that prior approval of the strike requires only a simple majority of the votes cast.

The Committee notes that section 39 prohibits sympathy strikes. The Committee considers that a general prohibition of sympathy strikes, for public servants not exercising authority in the name of the State and who therefore have the right to strike, could lead to abuse. The workers concerned should be able to take such action provided that the initial strike they are supporting is itself lawful (see General Survey, op. cit., paragraph 168). The Committee therefore requests the Government to take the necessary measures to limit the application of section 39 to public servants exercising authority in the name of the State.

The Committee notes that sections 32 and 35 of the Act address collective disputes and the procedures to be followed. It notes that, during a strike, negotiations have to be continued between the parties or under the direction of a certified mediator chosen by agreement between the parties. In the event of a disagreement with regard to the mediator or the failure of mediation, an arbitration board shall be appointed by the Minister of Public Service at the request of one of the parties. Within four days of its appointment, the arbitration board shall issue an arbitration award which shall be notified to both parties forthwith. Section 35 provides that, in the event of conciliation the award shall be immediately enforceable. Where there is no conciliation, the dispute shall be referred to the administrative court by the losing party. The Committee recalls that public servants not exercising authority in the name of the State should enjoy the right to strike and that this right may only be restricted or prohibited in the following two cases: (1) where the public servants are engaged in essential services in the strict sense of the term, that is, services, the interruption of which would endanger the life, personal safety or health of the whole or part of the population; and (2) in the event of an acute national crisis. The Committee requests the Government to indicate the effect of intervention by the Court, and in particular whether it gives rise to a binding ruling, bringing an end to the strike for public servants not considered to exercise authority in the name of the State or to work in essential services.

Article 5. The right of trade unions to establish and join federations and confederations of their own choosing. The Committee notes that, by virtue of section 20 of the Act, trade unions may establish central organizations, federations and confederations; under the terms of section 21, these organizations are regulated by the provisions of Chapter I respecting in particular the establishment of first-level organizations. The Committee notes that the upshot of section 21 in practice is that first-level organizations can only join central organizations or federations of unions of public servants, to the exception of unions representing other workers. The Committee therefore recalls that, although first-level organizations of public servants may be restricted to this category of workers, such organizations should, however, be free to join federations and confederations of their choosing, including those which also group together organizations from the private sector (see General Survey, op. cit., paragraph 193). The Committee requests the Government to take the necessary measures to amend section 21 to guarantee the right of unions of public servants to establish and join federations and confederations of their own choosing, including those which group together organizations from the private sector, in accordance with Article 5.

The Committee requests the Government to keep it informed in its next report with regard to all the points raised above.