Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

Comments of the ITUC. The Committee notes the comments made by the International Trade Union Confederation (ITUC), dated 24 August 2010, concerning legislative matters already raised by the Committee, as well as violations of freedom of association in 2009. The Committee requests the Government to provide its observations in reply to the ITUC’s comments.

Legislative amendments. For several years, the Committee has been requesting the Government to take the necessary measures to amend its legislation to bring it into full conformity with the Convention. The Committee notes the Government’s indication in its report that, in the context of the revision of the texts implementing the Labour Code, a technical committee composed of labour inspectors will take the necessary measures to amend the legislation to bring it into full conformity with the Convention and that particular attention will be paid to all sections which have been the subject of comments by the Committee. The Committee notes this information and expresses the firm hope that the Government’s next report will indicate concrete progress in the revision of the Labour Code to bring it into full conformity with the Convention. The Committee further hopes that the Government will take due account of all points recalled below. In this regard, the Committee notes that the Government expresses its wish to continue benefiting from technical assistance from the Office.

Article 2 of the Convention. Right of workers to establish and join organizations of their own choosing without prior authorization. Minors who are of the minimum legal age for admission to employment. For several years, the Committee has been requesting the Government to amend section 269 of the Labour Code to remove any obstacles that prevent minors who have access to the labour market from exercising the right to organize. The Committee recalls that, under Article 2 of the Convention, the minimum age for joining a trade union in full freedom must be the same as that established for admission to employment, without the permission of the parents or guardian being necessary. The Committee trusts that the Government will take the necessary measures to amend section 269 of the Labour Code so as to guarantee the right to organize of minors who are of the minimum legal age for admission to employment (14 years according to section 153 of the Labour Code), whether as workers or as apprentices, without the permission of their parents or guardians being necessary.

Magistrates. For several years, the Committee has been commenting on the need to ensure that magistrates enjoy freedom of association. The Committee notes the Government’s indication in its report that magistrates have preferred to form neutral associations for the defence of their interests and that they have not expressed the wish to establish unions. The Committee is bound to recall once again that magistrates are not covered by the exceptions allowed by Article 9 of the Convention and that they ought to enjoy, like all other categories of workers, the right to establish and join organizations of their own choosing, in accordance with Article 2 of the Convention. The Committee trusts that the Government will take the necessary measures to ensure that magistrates enjoy the right to establish and join occupational organizations of their own choosing.

Article 3. Right of workers’ organizations to elect their representatives in full freedom and to organize their administration and activities without interference from the public authorities. In its previous comments, the Committee noted that section 278 of the Labour Code extends the procedure for the establishment of trade unions to any changes in their administration or management, and therefore has the effect of subjecting such changes to the approval, either of the Prosecutor-General or of the courts. The Committee therefore indicated that this provision gives rise to serious risks of interference by the public authorities in the organization and activities of trade unions and their federations. It recalled that the establishment or amendment of the statutes of an organization of workers is the responsibility of the organization itself and should not be subject to the prior consent of the public authorities in order to take effect. The Committee trusts that the Government will take the necessary measures to amend section 278 of the Labour Code so as to provide that any change in the administration or management of a union may take effect as soon as the competent authorities have been notified and without the requirement of their approval.

Compulsory arbitration. For many years, the Committee has been noting that sections 350 and 362 of the Labour Code allow compulsory arbitration in instances which go beyond essential services in the strict sense and in situations which cannot be deemed to constitute an acute national crisis. The Committee recalls that the prohibition or restriction of the right to strike by means of compulsory arbitration can be justified only in the cases of: (1) essential services in the strict sense of the term, that is, services the interruption of which would endanger the life, personal safety or health of the whole or part of the population; (2) an acute national crisis and then only for a limited period and to the extent necessary to meet the requirements of the situation. The Committee trusts that the Government will amend the relevant sections of the Labour Code so as to limit the prohibition on strikes by means of compulsory arbitration only to essential services in the strict sense of the term and to situations of acute national crisis.

Duration of mediation. In its previous comments concerning the prohibition on strikes for the duration of the mediation procedure established under section 362 of the Labour Code, the Committee recalled that it was possible to require the exhaustion of conciliation and mediation procedures before a strike may be called, on condition that the procedures are not so complex or slow that a lawful strike becomes impossible in practice or loses its effectiveness. However, the Committee considered that the maximum period of 120 days for mediation provided for in section 346 of the Labour Code was too long. The Committee expects that the Government will amend section 346 of the Labour Code to reduce the maximum duration of mediation before a strike may be called.

The Committee is raising other points in a request addressed directly to the Government.