Observation (CEACR) - adopted 2000, published 89th ILC session (2001)

The Committee notes the Government’s report and the discussion held in the Conference Committee on the Application of Standards in 2000.

The Committee recalls that for many years its comments have been referring to the following provisions of the Organic Labour Act:

-  the requirement for an excessively long period of residence (more than ten years) for foreign workers to hold trade union executive office (section 404);

-  the excessively long and detailed list of duties entrusted to and aims to be achieved by workers’ and employers’ organizations (sections 408 and 409);

-  the requirement for an excessively high number of workers (100) to establish trade unions of self-employed workers (section 418); and

-  the requirement for an excessively high number of employers (ten) to establish an employers’ organization (section 419).

The Committee notes from the Government’s report that: (1) a new Constitution came into force on 30 December 1999; (2) by decision No. 0580 of 16 March 2000, issued by the Ministry of Labour, the commission of jurists specializing in labour law was formally established with the mandate of studying and preparing various legal instruments in the field of labour; (3) instructions have been given to this commission of specialists to take into consideration the suggestions made by the ILO’s supervisory bodies; and (4) the Government places great value on the observations made by the ILO and reaffirms its intention of resolving the outstanding legislative issues to which the Committee of Experts refers. In this regard, the Committee regrets that, despite the time which has elapsed and the Government’s expressions of its intention to bring the legislation into conformity with the Convention, the necessary measures to make these amendments have not yet been taken. In these conditions, the Committee expresses the firm hope that the Government will provide detailed information in its next report on any measure adopted to amend the above provisions of the Organic Act.

Furthermore, the Committee notes with concern that the new Constitution of the Republic, of December 1999, contains a number of provisions which are not in conformity with the requirements of the Convention, as follows:

-  Article 95. "The constitution and rules of trade union organizations shall require the alternation of executive officers by means of universal, direct and secret suffrage." The Committee recalls that, by virtue of Article 3 of the Convention, workers’ and employers’ organizations shall have the right to draw up their constitutions and rules, and to elect their representatives in full freedom. In this respect, the imposition of the requirement for the alternation of trade union executive officers by legislative means constitutes an important obstacle to the guarantees set forth in the Convention;

-  Article 293. The electoral authority shall have the functions of: organizing the elections of trade unions, occupational associations and political organizations under the terms set out in the law; Eighth Transitional Provision. While awaiting the enactment of the new electoral laws envisaged in this Constitution, electoral processes shall be convoked, organized, directed and supervised by the National Electoral Council (by means of a Decree published in the Official Gazette No. 36.904, of 2 March 2000, respecting measures to guarantee freedom of association, the members of the Electoral Board were appointed and their functions determined, including the achievement of trade union unification or the resolution of issues respecting membership of workers’ organizations). In this regard, the Committee considers that the rules governing the procedures and arrangements for the election of trade union leaders should be determined in trade union statutes and not by a body outside workers’ organizations. The Committee also considers that the issue of trade union unity and the status of the members of trade unions should be determined by decision of trade union organizations and in no event imposed by law, since such an imposition constitutes one of the most serious violations conceivable of freedom of association.

In these conditions, the Committee requests the Government to take measures to amend the constitutional provisions referred to above, and to repeal the Decree published in Official Gazette No. 36.904, of 2 March 2000, respecting measures to guarantee freedom of association, and asks it to provide information in its next report on any measures adopted in this respect.

Finally, the Committee also notes with deep concern the draft texts for the protection of trade union guarantees and freedoms, and the "democratic rights" of workers in their trade unions, federations and confederations, which contain provisions that are in violation of the guarantees set out in the Convention, as well as an agreement issued by the National Assembly to convoke a national trade union referendum on 3 December 2000 with a view to the unification of the trade union movement and the suspension or removal of current trade union leaders, which implies a very serious interference in the internal affairs of trade union organizations, which is totally incompatible with the requirements of Article 3 of the Convention.

[The Government is asked to report in detail in 2001.]