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

The Committee notes with regret that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

Articles 1, 2 and 3 of the Convention. Protection against acts of anti-union discrimination and interference. In its previous comments, the Committee noted that section 210(1) of the Labour Code, as amended by Act No. 6-96 of 6 March 1996, provides that it is prohibited for any employer to take into consideration membership of a trade union or the performance of trade union duties in taking decisions regarding, inter alia, hiring, conduct, distribution of work, vocational training, promotion, remuneration and the granting of social benefits, disciplinary measures and dismissal. Section 210(2) of the Labour Code prohibits acts of interference against workers’ organizations. The Committee also noted that section 210(3) of the Labour Code provides that any measure taken by an employer that contravene subsections (1) and (2) shall be considered as unjustified and give rise to damages. The Committee reminds the Government that it considers that legislation prohibiting acts of anti-union discrimination and interference are inadequate if they are not accompanied by prompt and efficient procedures and sanctions that are sufficiently dissuasive to ensure their application (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 230). It once again requests the Government to provide information on the application in practice of section 210(3) of the Labour Code, and particularly on the amounts of damages that have been granted to workers in the context of disputes relating to acts of anti-union discrimination or interference by employers.

Article 4. Collective bargaining on the deduction of trade union dues. 
1. The Committee notes that, according to the Government’s first report, since the check-off system was abandoned in 1991, there has been no procedure for deducting trade union dues from workers’ pay. According to the Government, in practice, all unionized workers are expected to pay their dues to the trade union office. The Committee once again notes with regret that the Government has still not specified whether the abandonment of the check-off system in 1991 had the effect of barring trade unions from negotiating procedures allowing trade union dues to be deducted from members’ pay. The Committee once again reminds the Government that the deduction of trade union dues by employers and their transfer to the unions is not a matter that should be excluded from the scope of collective bargaining and requests the Government to indicate whether the abolition of the check-off system in 1991 has led to such an exclusion.

2. The Committee noted previously that section 245 of the Labour Code provides that when a collective dispute is referred to it, the Recommendations Committee shall produce, within seven days, a report that includes recommendations to the labour inspector or the official responsible. In this respect, the Committee recalls that section 246 of the Labour Code provides that if the report is not challenged by the parties to the dispute within four clear days of their notification, the report will become binding. The Committee once again requests the Government to specify the consequences of one of the parties challenging the report of the Recommendations Committee within the prescribed time limit.

Article 6. Right to collective bargaining in the public sector. The Committee noted previously that section 2 of the Labour Code provides that persons with indefinite appointments in the public administration are not subject to the Labour Code and that contractual public employees are governed by the special legislative provisions applying to the public administration in relation to the exercise of the right to strike. The Committee also notes that section 248-13 provides that the provisions of Title VIII (settlement of labour disputes) of the Labour Code apply to the staff of public or private enterprises, bodies and establishments where such enterprises, bodies and establishments are responsible for the management of a service employing salaried employees governed by the Labour Code.

With reference to Article 6 of the Convention, the Committee recalls that a distinction should be drawn between, on the one hand, public servants who by their functions are directly engaged in the administration of the State (for example, civil servants employed in government ministries and other comparable bodies, as well as ancillary staff), who may be excluded from the scope of the Convention and, on the other, all other persons employed by the Government, by public enterprises or by autonomous public institutions, who should benefit from the guarantees provided for in the Convention (see General Survey, op. cit., paragraph 200). The Committee once again requests the Government to provide the legislation applicable to employees in the public administration who are excluded from the scope of the Labour Code in respect of the rights laid down in Articles 1, 2 and 4 of the Convention.

The Committee notes the comments made by the International Trade Union Confederation (ITUC) dated 2009 and 2010, concerning anti-union dismissals in the cement sector and requests the Government to send its observations thereon.