Direct Request (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee notes with interest the information contained in the Government’s first report. It wishes to raise a certain number of points concerning the application of the following Articles of the Convention.

Article 2 of the Convention. (a) Right of workers and employers, without distinction whatsoever, to establish and join organizations. The Committee notes that some categories of workers, which include judges, temporarily and permanently appointed officials in the public service as well as persons governed by the Common Statutes for Civil Servants or by the Diplomatic Statutes, are not covered by the provisions on freedom of association of the Labour Law. The Committee notes the Government’s indication that under the Common Statutes for Civil Servants, civil servants have the right to be members or participate in the administration of associations authorized by law. However, the Committee notes that section 1 of the Common Statutes for Civil Servants do not apply to civil servants of the legislative order. The Committee recalls that with the exception of the members of the police and the armed forces, the guarantee of the right of association should apply to all workers, including public servants and officials. All public servants and officials should have the right to establish occupational organizations, irrespective of whether they are engaged in the state administration, are officials of bodies which provide important public services or are employed in state-owned economic undertakings (see General Survey on freedom of association and collective bargaining, 1994, paragraphs 48, 49 and 55). Moreover, all workers, whether they are employed on a permanent or temporary basis, should have the right to establish and join organizations of their own choosing. The Committee therefore asks the Government to amend its legislation so as to ensure that judges and temporarily and permanently appointed officials in the public service enjoy the right to establish and join organizations. It further requests the Government to classify the meaning of "civil servants of the legislative order" mentioned in section 1 of the Common Statutes for Civil Servants.

(b) Right of workers to establish organizations without previous authorization. The Committee notes section 268 of the Labour Law concerning the registration procedure. The Committee notes that the legislation does not state whether organizations’ requests for registration might be refused, and on what basis. The Committee requests the Government to indicate whether workers’ and employers’ organizations might be refused registration and, if that is the case, to indicate the permissible grounds for such a refusal. It further asks the Government to provide details on the registration procedure and to indicate any cases where registration may have been denied.

Article 3. (a) Right to elect their representatives freely. The Committee notes that section 269(3) of the Labour Law disqualifies persons convicted of any crime from being elected for the post of responsible for the administration and management of a professional organization. Furthermore, section 2(3) of Prakas No. 277 on the registration of professional organizations provides that persons responsible for the leadership and administration of the organization should have never been convicted of any criminal acts. In this respect, 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. Thus, the legislation, which establishes excessively broad ineligibility criteria, for example by means of a long list including acts which have no real connection with the qualities of integrity required for the exercise of trade union office, is incompatible with the Convention (see General Survey, 1994, paragraph 120). The Committee therefore requests the Government to amend section 269(3) of the Labour Law and section 2(3) of Prakas No. 277 so as to limit this restriction to convictions clearly touching upon the integrity of the person concerned.

Furthermore, the Committee notes section 269(4) of the Labour Law, which requires that the members responsible for the administration and management of a professional organization shall, at the time of their election, have been engaged in the profession or the job for at least one year. In this respect, the Committee considers that provisions of this type infringe the organizations’ right to elect representatives in full freedom by preventing qualified persons from carrying out union duties or by depriving unions of the benefit of the experience of certain officers when they are unable to provide enough qualified persons among their own ranks. In order to bring such legislation into conformity with the Convention, it would be desirable to make it more flexible, either by admitting as candidates persons who have previously been employed in the occupation concerned, or by exempting from the occupational requirement a reasonable proportion of the officers of an organization (see General Survey, paragraph 117). The Committee therefore requests the Government to amend its legislation in order to bring it into conformity with the Convention, either by exempting from the occupational requirement a reasonable proportion of the officers of an organization, or by admitting as candidates persons who have been engaged in the industry for less than one year and those who have previously been employed in the organization concerned.

(b) Right to strike. The Committee notes that according to section 326(1) of the Labour Law, a minimum service should be arranged in the enterprise where the strike is taking place and if there is no agreement between the parties to the dispute, the Ministry of Labour shall determine the minimum services in question. Section 326(2) provides that workers who are required to provide minimum service and who do not appear for such work are considered guilty of serious misconduct. Furthermore, section 334 allows the employer to replace workers who are required to provide minimum services and who do not appear for such work. In this respect, the Committee recalls that the authorities may establish a system of minimum service in services which are of public utility in order to avoid damages which are irreversible or out of all proportion to the occupational interests of the parties to the dispute, as well as damages to third parties, namely the users or consumers who suffer the economic effects of collective disputes. Minimum services could be appropriate in situations in which a substantial restriction or a total prohibition of strike action would not appear to be justified and where, without calling into question the right to strike of the large majority of workers, one might consider ensuring that users’ basic needs are met or that facilities operate safely or without interruption (see General Survey, 1994, paragraphs 160 and 162). The Committee therefore requests the Government to amend its legislation so as to ensure that the requirement to establish minimum services is limited to the abovementioned cases, particularly in light of the serious consequences for failure to ensure such services under section 326(2) and the rights afforded to employers under section 334 to hire replacements where minimum services have not been provided. As regards the provision under which any disagreement concerning the establishment of minimum services should be settled by the Ministry of Labour, the Committee requests the Government to amend its legislation so as to ensure that any such disagreement is settled by an independent body having the confidence of all the parties to the dispute and not the executive or administrative authority and to keep it informed of measures taken or envisaged in this regard.

Article 5. Right of organization to affiliate with international organizations. The Committee requests the Government to indicate whether the unions of professional organizations have the right to affiliate with international organizations, and to specify the relevant legislative provisions.