Direct Request (CEACR) - adopted 1999, published 88th ILC session (2000)

The Committee notes with interest the information contained in the Government's report and particularly the entry into force of the Transitional Constitutional Act which recognizes the right to organize and the right to strike (sections 30 and 37). It recalls that its previous comments concerned the following.

1. Trade union rights for public servants. The Committee had noted that section 14 of the Labour Code excludes public servants and magistrates from its scope. It notes that according to the Government, the Statute of public servants provides in section 29 for the right to organise but there is still no legal text providing measures for the exercise of the right to strike. The Government also indicates that the Statute of magistrates provides for the right to organise. In this regard, the Committee requests the Government to send it copies of the Statute of public servants and the Statute of magistrates currently in force as well as the text fixing the means of exercising the right to strike for public servants as soon as it is adopted.

2. Trade union rights for minors. The Committee had noted that section 271 of the Labour Code provides that minors under the age of 18 years must obtain explicit authorization from the parent or guardian to join a trade union. The Committee takes due note of the Government's statement according to which no minor can perform an act of a legal nature without the authorization from his or her parents. However, the Government indicates that it could abolish this authorization concerning the decision to join a trade union. The Committee requests the Government to send it a copy of the text amending this provision as soon as it is adopted.

3. Election of trade union leaders. The Committee notes that the Labour Code sets certain conditions for holding the position of trade union leader or administrator.

-- Criminal record (section 275 of the Labour Code). This section provides that trade union leaders or administrators must not have served a definitive term of imprisonment of more than six months. The Committee notes the Government's statement that court decisions have found workers guilty of misuse of funds but that it does not have access to these judgements. In this regard, the Committee recalls that conviction for an act, the nature of which is not such as to call into question the integrity of the person concerned and is not such as to be prejudicial to the performance of trade union duties, should not constitute grounds for disqualification from trade union office. It also requests the Government to provide a copy of the Criminal Code in force.

-- Belonging to the respective occupation (section 275). This section also provides that the administrator or trade union leader should belong to the occupation or trade for at least one year. In this regard, the Government indicates that the Labour Code was adopted in full consultation with the social partners and that they had all agreed on the requirements to be a trade union officer. In this respect, the Committee has always considered that the provisions which require all candidates for trade union office to belong to the respective occupation or enterprise are contrary to the guarantees set forth in the Convention. Provisions of this type infringe the organization's right to elect representatives in full freedom by preventing qualified persons, such as full-time union officers or pensioners, from carrying out trade union duties or by depriving unions from the benefits of the experience of certain officers when they are unable to provide enough qualified persons from among their own ranks. Moreover, there is also a real risk of interference by the employer through the dismissal of trade union officers, which deprives them of their trade union office (see General Survey on freedom of association and collective bargaining of 1994, paragraph 117). The Committee again requests the Government to modify its legislation by accepting the candidature of persons who worked previously in the respective occupation or by lifting this requirement for a reasonable period of time for trade union officers.

4. The right of workers' organizations to organize their administration and activities to further and defend the interests of their members (Articles 3 and 10 of the Convention). The Committee had noted that the series of compulsory procedures prior to taking strike action laid down in the Labour Code (sections 191-210) would suggest that the minister was empowered to prohibit any strike. The Committee notes that the Government provides information on five strikes that have occurred since 1993 in the public sector as well as two strikes in the private sector.

The Government adds that it is aware of the necessity to clarify the modalities concerning the exercise of the right to strike and that a draft text exists already on this matter and will be examined by the National Labour Council. The Committee requests the Government to send it a copy of the said text as soon as it will be adopted.

The Committee had also noted that, pursuant to section 213 of the Labour Code, a strike is legal after a vote approved by a simple majority of the employees of the workplace or the enterprise. In this regard, the Government indicates that in practice a vote of the workers concerned is not necessary as long as there exists a consensus to call a strike. On this point, the Committee is of the opinion that it would be advisable for the Government to take measures in order to put its legislation in conformity with its practice .

The Committee hopes that the Government will adopt the necessary measures in light of the above comments to bring its national legislation into fuller conformity with the Convention.