Observation (CEACR) - adopted 1991, published 78th ILC session (1991)

The Committee notes the assurances given by the Government in its report that it took note of the Committee's comments and that it will take all necessary measures to initiate the amendment and repeal procedure of the various provisions in respect of which the Committee had made comments.

The Committee recalls that the divergencies between the national legislation and the Convention relate to the single-trade-union system established in the legislation and the prohibition of a strike where a collective dispute has been referred to compulsory arbitration, even where this does not affect an essential service in the strict sense of the term.

1. As regards the question of the single-trade-union system, the Government stated to the Conference Committee in 1987 that nothing in the legislation prohibits unions from creating unions or confederations other than the Trade Union Federation of Mauritania since, although the legislation provides for only one trade union per occupation, those unions can in turn form other central trade union organisations. Furthermore, the Government added that the current system is the expression of the wish of the workers and it is not for the Government to impose a different situation if the workers are satisfied with the current trade union structure.

While noting these statements, the Committee is once again bound to note that Book III of the Labour Code, as amended by Act No. 70-030 of 23 January 1970, by providing in section 1 that one occupational association may be established per occupation and, in section 22, read in conjunction with sections 1 and 2, that trade unions can only be established by occupation, does not permit workers or their base-level organisations to establish, respectively, organisations and federations of their own choosing, contrary to Articles 2, 5 and 6 of the Convention.

The Committee draws the Government's attention to the fact that the purpose of the Convention is not to express support either for the idea of trade union unity or for that of trade union pluralism. However, even in a situation where, at some point in the history of a nation, all workers have preferred to unify the trade union movement, they should, however, be able to safeguard their freedom to set up, should they so wish in the future, unions outside the established trade union structure, which is not permitted by the legislation when it establishes a single-trade-union system.

The Committee noted that sections 226, 228 and 229 of the draft Labour Code of 1984 provided that persons carrying on the same occupation, similar crafts or allied trades may establish an occupational association, although the draft omitted to add, as the 1979 draft drawn up with the assistance of the ILO had provided, that any worker or employer must be able to join freely an association of his own choosing within his occupation.

It also referred to the difficulties in trade union life noted by the Committee on Freedom of Association in Case No. 1088 of 1982 which continued to exist.

The Committee therefore requests once again the Government to amend the legislation to enable workers who so wish, to freely establish and join associations of their own choosing, as set out in Article 2 of the Convention, which, as already indicated by the Committee, would contribute to finding a solution to the problems in question.

2. With regard to the prohibition on strikes after a dispute has been referred to compulsory arbitration (sections 39, 40, 45 and 48 of Book IV of the Labour Code as amended by Act No. 74-149 of 11 July 1974), the Committee notes the Government's statement to the effect that strikes are not really a solution to the crucial problems of the social partners. According to the Government, consultation should prevail and recourse to strikes should only occur when the possibility no longer exists for the workers to obtain satisfaction for their legitimate claims. Referral to compulsory arbitration with the possibility of appeal should avoid recourse strikes.

The Committee once again draws the Government's attention to the fact that the provisions of Book IV respecting the settlement of disputes, which are taken up in the draft Code of 1984 (sections 292, 293, 298 and 301), by empowering the Minister (after taking into account, inter alia, the circumstances and effects of the dispute) to submit the dispute to arbitration by the Labour Court whose decision is without appeal (except for the power of review on points of law), are such as to restrict the exercise of the right to strike, which should only be restricted or forbidden in the case of public servants acting as agents of the public authority or in essential services, in the strict sense of the term, that is those whose interruption would endanger the life, personal safety or health of the whole or part of the population, or in the event of an acute national crisis.

The Committee requests once again the Government to indicate in its next report the measures that have been taken or are envisaged to amend the legislation in order to limit restrictions on the right to strike to the cases mentioned above.

The Committee again expresses the hope that the Government will make every effort to take the necessary action in the very near future.

[The Government is asked to supply full particulars to the Conference at its 78th Session.]