Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

The Committee notes with regret that the Government’s report does not reply to the observations that it has been making for many years, nor to the comments received in 2008 from the International Trade Union Confederation (ITUC). The Committee notes the recent comments of the ITUC, dated 26 August 2009, referring, in addition to the legislative issues already raised before the Committee, to cases of harassment and infringement of the freedom of expression of trade union leaders. The Committee requests the Government to provide its observations on the new comments made by the ITUC. The Committee also notes the conclusions and the recommendations of the Committee on Freedom of Association in Case No. 2581 (see the 354th Report).

Article 2 of the Convention. Right of workers and employers, without distinction whatsoever, to establish and join organizations without previous authorization. The Committee noted in its previous comments that, under section 294(3) of the Labour Code, parents or guardians may oppose the right to organize of young persons under 16 years of age. The Committee recalls once again that Article 2 guarantees all workers, without distinction whatsoever, the right to establish and join organizations. The Committee once again expresses the firm hope that section 294(3) of the Labour Code will soon be amended to guarantee the right to organize to minors who have reached the legal minimum age (14 years) for access to the labour market, either as workers or apprentices, without parental or guardian authorization being necessary. The Committee urges the Government to provide information in its next report on all the measures adopted in this regard.

Article 3. Right of workers’ and employers’ organizations to organize their administration and activities in full freedom. The Committee has also noted on many occasions that, under section 307 of the Labour Code, the accounts and supporting documents relating to the financial transactions of trade unions must be submitted without delay to the labour inspector, when so requested. Recalling once again that the inspection by the public authorities of trade union finances should not go beyond the obligation of organizations to submit periodic reports, the Committee trusts that the Government will take the necessary measures to amend section 307 of the Labour Code taking into account the abovementioned principle. The Committee also once again requests the Government to provide a copy of the instructions issued by the Director of Labour and Social Security with regard to the inspection of the financial transactions of trade unions.

With regard to Act No. 008/PR/07 of 9 May 2007 regulating the right to strike in public services, the Committee reiterates its comments, which concerned the following points:

–           Section 11(3) of the Act, which imposes the obligation to declare the “possible” duration of a strike. The Committee recalls that, under section 13(1), non-compliance with this condition would result in a strike being declared illegal. Recalling that trade unions should be able to call strikes of unlimited duration and considering that the legislation should be amended to this effect, the Committee requests the Government to indicate the measures adopted for this purpose.

–           Sections 20 and 21, under which the public authorities (the Minister concerned) have the discretion to determine the minimum services and the number of officials and employees who will ensure that they are maintained in the event of a strike in the essential services enumerated in section 19. In this respect, the Committee recalls once again that such a service should nevertheless meet at least two requirements: (1) firstly, and this aspect is paramount, it must genuinely and exclusively be a minimum service, that is one which is limited to the operations that are strictly necessary to meet the basic needs of the population or the minimum requirements of the service, while maintaining the effectiveness of the pressure brought to bear; and (2) as this system restricts one of the essential means of pressure available to workers to defend their economic and social interests, their organizations should be able, if they so wish, to participate in defining such a service, along with employers and the public authorities. The parties might also envisage the establishment of a joint or independent body responsible for examining rapidly and without formalities the difficulties raised by the definition and application of such a minimum service and empowered to issue enforceable decisions (see General Survey of 1994 on freedom of association and collective bargaining, paragraphs 160 and 161). The Committee therefore once again requests the Government to amend the legislation to ensure that the minimum service is limited to the operations that are strictly necessary to avoid jeopardizing the life or normal living conditions of all or part of the population, that the workers’ organizations concerned are able to participate in defining such a service, along with the employers and the public authorities, and to indicate any progress achieved in this respect.

–           Section 22(1) of the Act, which provides that any refusal by officials or employees to comply with requisition orders (sections 20 and 21) makes them liable to the penalties provided for in sections 100 and 101 of Act No. 017/PR/2001 issuing the general public service regulations. In this regard, the Committee recalls that these legislative provisions describe the degrees of disciplinary penalties to be imposed by order of gravity, but without indicating those which correspond to the different degrees of fault. The Committee once again requests the Government to clarify the scope of penalties for contraventions of legal provisions and also requests it to indicate any other penalties that can be imposed for violations of Act No. 008/PR/2007 regulating the exercise of the right to strike in public services.