Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Timor-Leste (Ratification: 2009)

Other comments on C087

Observation

2015

Direct Request

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The Committee notes the Government’s comments on previous observations of the International Trade Union Confederation (ITUC).

Article 2 of the Convention. Right of workers, without distinction whatsoever, to establish and join organizations. Having observed that section 2 of the Labour Code (Labour Law No. 4/2012) set out that the Code did not apply to civil servants, and that domestic work was to be regulated by special legislation, the Committee requested the Government to indicate the legislative provisions ensuring that civil servants and domestic workers enjoy the guarantees enshrined in the Convention.

The Committee notes the Government’s indication that the right to organize of civil servants is recognized in section 115.1 of the Statute of the Civil Service (Law No. 8/2004), which sets out that civil servants have the right to be members of a union or another organization that represents their interests. The Committee observes that section 115.2 of the Statute of the Civil Service further provides that the establishment and functioning of trade unions shall be regulated by a Government decree-law. The Committee requests the Government to provide a copy of the decree-law or other normative text regulating the right to organize of civil servants.

As to domestic workers, the Committee duly notes the Government’s indication that, while there is no specific labor legislation on domestic work yet, all workers enjoy the same rights to organize as regulated in the Labour Code. The Committee requests the Government to provide a copy of the labor legislation on domestic work once adopted.

Article 3. Right of organizations to organize their activities and to formulate their programs. Strike Act. The Committee had requested the Government to provide further information on a number of provisions in the Strike Act No. 5/2012 of 29 February 2012. In this respect, the Committee duly notes the Government’s indication that the voting and quorum requirements under section 9.3 (a majority of workers to have quorum and support of absolute majority of voters to declare a strike) are also applicable to strikes declared by trade unions.

The Committee further notes that the Government states that the Strike Act specifically and merely regulates the right of workers to exercise their interests in a dispute with the employer. Recalling that trade unions should be able to resort to strike action to support the position of their members in the search for solutions to problems posed by social and economic policies, the Committee once again requests the Government to indicate whether workers’ organizations can exercise the right to strike beyond their disputes with employers and in relation to the social and economic policies of the Government.

Concerning sanctions for strikes that fail to observe the provisions of the Strike Act, the Committee observes that, while the Government states that the penal code cannot be applied to peaceful strikes, it states so in relation to strikes not contradicting section 18.1 (concerning the provision of minimal services). Moreover, section 24 of the Act sets out, without prejudice to other more aggravating penalties provided in the law, a penalty of imprisonment of up to 6 months for organizers of a strike that did not observe the provisions in the Act. The Committee has emphasized that, while an unlawful exercise of the right to strike may give right to certain sanctions, no penal sanction should be imposed against a worker for having carried out a peaceful strike and on no account should measures of imprisonment be imposed except in cases of violence against persons or property or other serious infringements of rights and only pursuant to legislation punishing such acts. The Committee requests the Government, in consultation with the social partners, to amend section 24 of the Act in order to ensure that no penal sanctions may be imposed on workers for carrying out peaceful strikes.

Concerning the services that the Strike Act refers to as satisfying indispensable needs and in relation to which workers are obliged to ensure the provision of minimal services (section 18.2 of the Act), the Committee observes that while the list includes essential services in the strict sense of the term (such as hospital services) and services of fundamental public importance (such as collective passenger transportation) in relation to which a negotiated minimum service may be required; the list also includes other broadly formulated services (such as “mass media” in general) which may not justify the imposition of a minimum service. The Committee requests the Government, in consultation with the social partners, to amend section 18.2 of the Act in order to ensure that the provision of minimum services may only be imposed in relation to essential services in the strict sense of the term, in services in which strikes of a certain magnitude and duration could cause an acute crisis threatening the normal conditions of existence of the population, and in public services of fundamental importance. The Committee reminds the Government of the possibility to avail itself of ILO technical assistance in this regard.

Finally, the Committee had observed that the Strike Act provides that, in the absence of agreement for the determination of minimum services, these shall be determined jointly by two members of Government and the government-appointed President of the Civil Service Commission (section 18.5). In the absence of comments by the Government on this matter, and recalling once again that any disagreement on minimum services should be resolved, not by the government authorities, but by a joint or independent body which has the confidence of the parties, the Committee requests the Government to amend section 18.5 of the Act in consultation with the social partners.