Direct Request (CEACR) - adopted 2004, published 93rd ILC session (2005)

The Committee notes the Government’s report. In its previous comments, the Committee noted the comments made by the National Council of Organized Workers (CONATO) and made the following comments:

(a)  Denial of the right of public servants to establish trade unions. The Government indicated previously that the interpretation made by CONATO is not in accordance with reality. The right of association of public servants is recognized in Act No. 9 of 20 June 1994, and in practice the National Federation of Public Servants’ Associations and Organizations (FENESEP) operates in the same way as any other private sector organization and participates in the CONATO and the International Labour Conference. The Committee emphasizes that, irrespective of the wording used, the decisive factor is that the associations in question enjoy the rights set out in the Convention.

(b)  Denial of the right to strike of public servants. The Government indicated previously that the Constitution allows special restrictions in cases determined by the law. The Committee recalls that the prohibition of the right to strike in the public service should be limited to public servants exercising authority in the name of the State (see General Survey on freedom of association and collective bargaining, 1994, paragraph 158). The Committee requests the Government to take measures to bring the legislation into line with the above.

(c)  Denial of the right to strike in enterprises which have been in existence for less than two years (Act No. 8 of 1981). CONATO pointed out that under section 12 of the Act, no employer shall be compelled to conclude collective agreements during the first two years of an enterprise’s operation and that the general legislation only permits strikes in pursuance of collective bargaining or in other limited cases. The Committee requests the Government to provide its comments on this matter.

(d)  Need for the support of the majority of the workers in the enterprise, shop or establishment to call a strike (section 476(2) of the Labour Code). The Government indicated that it considered that this restriction is justified by the effects produced by strikes under the national legislation (closure of the enterprise, prohibition upon the conclusion of new employment contracts, etc.). The Committee recalled that if a 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 required quorum and majority are fixed at a reasonable level (see General Survey, op. cit., paragraph 170). The Committee requests the Government to take measures to amend the legislation with a view to bringing it into line with the above.

The Committee notes that the Government has requested the technical assistance of the ILO Subregional Office and hopes that this assistance will be provided in the near future and that it will cover all of the matters raised. The Committee requests the Government to provide information on this subject.