Individual Case (CAS) - Discussion: 2005, Publication: 93rd ILC session (2005)

A Government representative first recalled his country's attachment to the international labour Conventions which it had ratified, particularly Convention No. 87. He provided details in answer to the points raised by the Committee of Experts in its observations.

Regarding the principles laid down in Article 2 of Convention No. 87, in particular the right of workers without distinction of any kind - including public servants - to form organizations of their choice and to affiliate to them, several provisions in Act No. 1/018 of 20 October 2004, guaranteed this right. Section 37 of that Act did not forbid magistrates to form associations but simply stipulated that the exercise of the right to strike could be regulated for certain professional categories, while laying down, naturally, that union rights were not recognized for members of the armed forces and security forces. Under section 33 of Act No. 1/001 of 29 February 2000 on the reform of the statute of magistrate, magistrates had the right to freedom of association, including the right to strike as set out in relevant regulations. It was true that the Ministry of Justice had considered that the registration of the Union of Magistrates of Burundi (SYMABU) was not valid because section 14 of the Labour Code excluded magistrates from its field of application. However, a regulatory text on freedom of association of magistrates was being studied. In the same way, the validity of the registration of all public sector trade unions which had been registered with the Ministry of Labour and Social Security was currently being studied by an ad hoc committee.

Regarding the right of minors to freedom of association, it could be noted that, even if, according to the Labour Code, minors needed parental authorization for this, in practice this obligation was not taken into account.

Regarding the provisions relating to the election of trade union leaders which were contrary to Article 3 of the Convention, the Government would undertake to study a modification of section 275 of the Labour Code as requested by the Committee of Experts.

Regarding the right to strike, the provisions for application of the Labour Code relating to the modalities of exercise of this right had not yet been taken. The Committee of Experts' proposals which sought amendment of section 213 of the Code, were being studied with the social partners.

For the revision of the Labour Code, a consultant hired by the National Council for the fight against AIDS would contribute to the integration of HIV/AIDS into this instrument. A tripartite workshop to validate this integration was planned for the near future. The Government and the workers' trade unions would doubtless want other provisions of the Labour Code (including those relating to section 213) to be revised. This undertaking would require financial and technical assistance from the ILO if it were to be completed rapidly.

The Worker members observed that Burundi had ratified the Convention in 1993 and that the Committee of Experts had been making observations on this country since 1999, observations which concerned, on the one hand, the fact that the Government did not regularly send reports and, on the other hand, the fact that it did not reply to questions concerning the following points: (1) the legal and practical obstacles to the exercise of the right to organize by magistrates; (2) the right of minors under the age of 18 to organize freely and without conditions; (3) the right of organizations to elect their representatives in full freedom and to organize their activities freely. On this last point, the Worker members recalled that unfortunately interference in the internal affairs of trade unions represented a permanent temptation for many Governments. However, by virtue of the Convention, trade unions were free to determine their statutes and procedures and although doubts might eventually arise as to the legality of these statutes or procedures, it pertained to the judicial instances to decide, and never to the Government. The inconsistency between section 271 of the Labour Code and the Convention hardly disguised the real intentions of the Burundi authorities to control the trade union movement. These intentions were nevertheless showing through in the current paralysis of the National Labour Council. The Worker members therefore requested that, in its conclusions, the Committee invite the Government to urgently rectify these problems which had been revealed a long time ago, to guarantee in practice the exercise of freedom of association without obstacles and to communicate officially the measures taken in this sense.

The Employer members noted that this was the first time that the Committee discussed this case after Burundi's ratification of the Convention in 1993. With regard to the right to organize of magistrates, it was necessary to clarify whether magistrates were public employees, which was not the case in all countries. The Employer members were surprised that the Committee of Experts did not examine the issue of the right of minors to organize within the broader context of Conventions Nos. 138 and 182, also ratified by Burundi. With regard to section 275(3) of the Labour Code which excludes persons sentenced to more than six months' imprisonment with no suspension from holding trade union office, they stated that a unionist with a criminal record might in fact not be fit to hold office. Recalling the Committee of Experts' comment regarding the requirement established by the Labour Code to have worked for one year in an occupation to stand for trade union office, the Employer members recalled their position that the only legitimate criteria was that the individual was fit and qualified. Concerning the question of authorizing a strike, it was not clear whether the Committee of Experts criticized the legislation in force as it did not state whether a simple majority was considered as reasonable. Basic democratic principles would suggest that a substantial number of affected workers should have an opportunity to vote on action which in the short-term led to loss of wages and benefits.

The Government member of Cuba pointed to the information provided by the Government on the draft regulation under consideration on freedom of association for magistrates, as well as the willingness to modify certain sections of the Labour Code criticized by the Committee of Experts to bring them into conformity with the Convention. The speaker emphasized that the development of new legislation or the modification of the Labour Code should be the product of consultations, which could be difficult to successfully conclude. The request by the Government for technical assistance should be taken into account given the current revision of the Labour Code, the situation of public service workers and the development of regulations for freedom of association for magistrates.

An observer of the ICFTU indicated that the greatest difficulty for a government claiming to be democratic was to accept differences of opinion and contradiction among its partners, and to respond through negotiation, since to negotiate was to recognize a conflict of interests and to want to solve it democratically. The principle underlying Convention No. 87 was that freedom of association was indispensable to a democracy. Freedom of association meant freedom of organization, freedom to elect representative members of trade unions and freedom to affiliate. Therefore, it was inadmissible that the Minister of Labour and Social Security of the Republic of Burundi should attempt to replace the leaders and members of the Trade Union Confederation of Burundi (COSYBU) on the pretext that the mandate of its leaders had expired, to decide on how the organization should be administered, using as an argument an erroneous interpretation of Article 8, paragraph 1, of Convention No. 87. It was worth recalling that the legality in question under this Article was that which stemmed from respect of national legislation and trade union organization statutes, and by imprisoning the president and treasurer of COSYBU, it was the Government that was flouting legality. The speaker, therefore, invited the Committee to take urgent action in the face of this grave infringement of union freedoms.

The Government representative declared that his Government would certainly take into consideration all the comments made by the Committee, while adding that he made a rule of being open to dialogue. Regarding the incidents to which the ICFTU had referred, he reported that the appropriate legal bodies had been informed of the allegations concerning the imprisonment of the President and Treasurer of COSYBU. The Government was willing to strictly respect its international commitments, but it should not be forgotten that the country had just experienced ten years of war, on top of which an economic embargo that had practically amounted to a total blockade, could be added.

The Worker members stated that the discussion had shown the pertinence of the Committee of Experts' observation. The credibility of the Government was called into question, as it continued to proclaim its legality while at the same time trying to silence the trade union movement. The Worker members expected the Government to abstain in the future from any interference in the administration and activities of trade unions. The Worker members requested that the Committee, in its conclusions, asked the Government to provide a detailed report on the legislation concerned and its application in practice, in particular concerning trade union independence.

The Employer members stated that the Government should provide a comprehensive report on the outstanding issues, which would enable the Committee of Experts to make a full assessment of the situation.

The Worker members wished to draw the Committee's attention to important information concerning some recent developments; in fact, since 2 June 2005, Pierre Claver Hayasandi had been prohibited from leaving the country, and his passport had been confiscated. Even though he had managed to reach Geneva, he did not know what awaited him on his return to Burundi. The Office should investigate this delicate case and make strict recommendations to the Government. It could also make recommendations with a view to the reinstatement of the 1 May holiday.

The Government member of Cuba requested information on the procedure followed, in so far as it was not common practice in the present Committee to accept new statements after the adoption of the conclusions.

The Chairperson indicated that there had been no change to the usual procedure, but that he had accepted the statement of the Worker members in view of its exceptional nature.

The Committee took note of the statement made by the Government representative, as well as the discussion that took place thereafter. The Committee recalled that this case concerned, among others, the right to organize of magistrates and the right of employers' and workers' organizations to elect their representatives in full freedom and to organize their administration and activities without interference from the public authorities.

The Committee noted the information provided by the Government according to which the Labour Code was undergoing a process of revision. It further noted that draft regulations on the right to organize of magistrates were being studied and an evaluation was being carried out by an ad hoc committee of the situation of all unions with respect to the labour legislation and the legislation on the public service. Finally, the Government requested the technical assistance of the Office in order to rapidly conclude the work on the revision of the Labour Code.

The Committee noted with concern the information provided about governmental interference in the internal activities of the Confederation of Burundi Trade Unions (COSYBU) and the detention of its president and treasurer in September of last year.

The Committee expressed the firm hope that the revision of the Labour Code would be completed in the near future and would include full consultation with the social partners. It urged the Government to take the necessary steps to ensure that workers' organizations could carry out their activities without interference by the public authorities. Noting the Government's request for technical assistance, the Committee hoped that, with the assistance of the Office, the Government would be in a position to supply a detailed report to the Committee of Experts on the concrete measures taken to bring its law and practice into full conformity with the Convention.

The Worker members wished to draw the Committee's attention to important information concerning some recent developments; in fact, since 2 June 2005, Pierre Claver Hayasandi had been prohibited from leaving the country, and his passport had been confiscated. Even though he had managed to reach Geneva, he did not know what awaited him on his return to Burundi. The Office should investigate this delicate case and make strict recommendations to the Government. It could also make recommendations with a view to the reinstatement of the 1 May holiday.

The Government member of Cuba requested information on the procedure followed, in so far as it was not common practice in the present Committee to accept new statements after the adoption of the conclusions.

The Chairperson indicated that there had been no change to the usual procedure, but that he had accepted the statement of the Worker members in view of its exceptional nature.

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Observation (CEACR) - adopted 2016, published 106th ILC session (2017)

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Direct Request (CEACR) - adopted 2012, published 102nd ILC session (2013)

Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

Direct Request (CEACR) - adopted 2011, published 101st ILC session (2012)

Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

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:

Article 2 of the Convention. The Committee urges the Government to take the appropriate measures to amend section 8 of Act No. 1/015 so as to lower the minimum membership required to establish a union in order to ensure in practice the rights of public servants to establish and join organizations of their own choosing, in accordance with Article 2 of the Convention.

Article 3. 1. The Committee noted previously that, under section 10 of Act No. 1/015, eligibility for leadership of a public service union is subject to a minimum length of service of three years. The Committee recalled that the autonomy of organizations can be effectively guaranteed only if their members have the right to elect their representatives in full freedom. This freedom means in particular that the public authorities should refrain from any intervention likely to hinder the exercise of this right, in particular regarding the eligibility requirements for union leaders. The issue of length of service as a condition for eligibility should therefore be left to the discretion of the organizations and their members. Noting the Government’s statement that it endorses this recommendation, the Committee requests the Government to take the appropriate measures to abolish the length of service requirement for the eligibility of trade union leaders so that civil servants can elect their representatives in full freedom, in accordance with Article 3 of the Convention.

2. The Committee noted previously that section 7 of Act No. 1/015 provides that, in the event of a leadership conflict in a union, the Minister of the Public Service may refer the matter to the Administrative Chamber of the Supreme Court for settlement. In this respect, the Committee recalled that the settlement of any internal conflict in a union should be left to the discretion of the union members themselves, without any intervention by the public authorities. The Committee recommended that, at the very least, referral to the Administrative Chamber of the Supreme Court should be by the union members themselves. Noting the Government’s indication that it agrees to amend to section 7 of Act No. 1/015 so as to leave the settlement of an internal dispute to a trade union, so as to guarantee in full the right of workers’ organizations to organize their administration and activities in full freedom, the Committee requests the Government to indicate the measures adopted in this respect, in accordance with Article 3 of the Convention.

3. The Committee noted previously that, for a strike by public servants to be legal, it has to fulfil a number of  conditions, including: (1) prior notification must be given specifying the length of the strike, in accordance with section 30; and (2) it must be called by a group of public servants, whether or not they are unionized, after approval by an absolute majority of the personnel in the public service concerned, in accordance with section 31. The Committee recalled that to require workers and their organizations by law to specify the length of the strike limits their right to organize their administration and activities and to formulate their programmes in full freedom. As to the approval of the strike by an absolute majority of the personnel in the public service concerned, the Committee emphasized that the ballot method, the quorum and the majority required should not be such that the exercise of the right to strike becomes very difficult in practice. Noting the Government’s indication that it will amend sections 30 and 31 of Act No. 1/015 in order, on the one hand, to ensure that there is no legal requirement to specify the length of the strike in the strike notice and, on the other, so that approval of the strike simply requires the majority of the votes cast, the Committee urges the Government to take the necessary measures.

4. With regard to section 39, which prohibits sympathy strikes, the Committee recalled previously that a general prohibition of sympathy strikes by public servants who do not exercise authority in the name of the State, and therefore have the right to strike, could lead to abuse. Noting the Government’s indication of its intention to confine the application of section 39 of Act No. 1/015 to public servants exercising authority in the name of the State, the Committee urges it to take the necessary measures.

5. The Committee noted previously that sections 32 to 35 of the Act deal with collective disputes and the procedures to be followed. During a strike, negotiations have to be continued between the parties or under the direction of a certified mediator chosen by agreement between the parties. In the event of disagreement as to the mediator or of the failure of the mediation, an arbitration board shall be appointed by the Minister of the Public Service at the request of one of the parties. Within four clear days of its appointment, the arbitration board shall issue an award, which has to be notified at once to the parties. Section 35 provides that, in the event of conciliation, the award shall be immediately enforceable. Where conciliation fails, the dispute shall be referred to the Administrative Court by the losing party. The Government had transmitted information on the effect of the intervention of the Court and, in particular, on the fact that a decision of the Administrative Court does not take effect if it has been appealed by one of the parties. It adds that in practice, no cases have been brought before the Administrative Court as the Government intended to settle all disputes amicably. While taking note of these indications, the Committee observes that recourse to the Administrative Court appears to result in a system of compulsory arbitration to end a dispute. The Committee recalls that, on the one hand, compulsory arbitration is acceptable only at the request of both parties to the dispute or in cases when a strike can be restricted or prohibited, i.e. in disputes involving public servants exercising authority in the name of the State or in essential services in the strict sense of the term. On the other, the Committee recalls that public servants not exercising authority in the name of the State should enjoy the right to strike and that this right may be restricted or prohibited only in the following two cases: (1) where the public servants are engaged in 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 of part of the population; and (2) in the event of an acute national crisis. Therefore, the Committee requests the Government to indicate if the decision of the Administrative Court or its appeal could put an end to a strike action by the public servants not exercising authority in the name of the State or not employed in essential services. The Committee also requests the Government to amend section 35 of Act No. 1/015 so as to allow recourse to compulsory arbitration only in the abovementioned cases.

Article 5. With regard to section 21 of Act No. 1/015, which provides that central organizations, federations and confederations are regulated by the provisions of Chapter I, which addresses the establishment of first-level organizations, the Committee noted that the effect of section 21 in practice is that first-level organizations can only join higher level organizations of public servants, and not organizations representing other workers. The Committee therefore recalled that, although first-level organizations of public servants may be restricted to this category of workers, such organizations should nonetheless be free to join federations and confederations of their own choosing, including those which also group together organizations from the private sector. Noting the Government’s indication that it will amend section 21 of Act No. 1/015 so as to guarantee the right of trade unions of public servants to establish federations and confederations of their own choosing, including those which also group together organizations from the private sector, in accordance with Article 5 of the Convention, the Committee requests the Government to take the necessary measures.

The Committee trusts that all the changes that the Government indicates that it wishes to make to Act No. 1/015, in accordance with the Committee’s recommendations, will be carried out in the near future and that the Government will be in a position to indicate the progress achieved in this respect in its next report.

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

The Committee notes with regret that the Government’s report has not been received. It must therefore repeat its previous observation which read as follows:

The Committee requests the Government to send its observations on the comments submitted by the International Trade Union Confederation (ITUC) and by the Trade Union Confederation of Burundi (COSYBU) on the application of the Convention.

Article 2 of the Convention. Right of public employees without distinction whatsoever to establish and join organizations of their own choosing. The Committee once again notes with regret the lack of the statutory provisions on the right to organize of magistrates and observes that this situation is the reason behind difficulties of registration of the Trade Union of Magistrates of Burundi (SYMABU). The Committee trusts that the Government will take the necessary measures without delay in order to adopt such statutory provisions so as to ensure and clearly define the right to organize of magistrates.

Right to organize of minors. For several years, the Committee has been raising the matter of the compatibility of section 271 of the Labour Code with the Convention, as this section provides that minors under the age of 18 may not join a trade union without the explicit permission of their parents or guardians. The Committee requests the Government to recognize the right to join trade unions of minors under 18 years of age who are engaged in an occupational activity without the permission of their parents or guardians being necessary.

Article 3. Right of workers’ and employers’ organizations to draw up their constitutions and rules, elect their representatives in full freedom, organize their administration and activities and formulate their programmes without interference by the public authorities. Election of trade union officers. The Committee recalls that its previous comments related to section 275 of the Labour Code which sets the following conditions for holding the position of trade union officer or administrator:

–      Criminal record. Under section 275(3) of the Labour Code, holders of trade union office may not have been sentenced to imprisonment without suspension of sentence for more than six months. The Committee recalls that conviction for an act which, by its nature, does not call into question the integrity of the person and implies no real risk for the performance of trade union duties should not constitute grounds for exclusion from trade union office.

–      Belonging to the occupation. Section 275(4) of the Labour Code requires trade union leaders to have belonged to the occupation or trade for at least one year. The Committee previously requested the Government to make the legislation more flexible by allowing persons who had previously worked in the occupation to stand for office or by lifting this requirement for a reasonable proportion of trade union officers.

The Committee once again requests the Government to take the necessary measures to amend section 275(3) and (4) of the Labour Code, taking fully into account the principles recalled above.

Right to strike. In its previous comments, the Committee raised the matter of the succession of compulsory procedures to be followed before calling a strike (sections 191–210 of the Labour Code), which appear to authorize the Minister of Labour to prevent all strikes. Recalling that the right to strike is one of the essential means available to trade unions to further and defend the interests of their members, the Committee urges the Government to adopt and provide a copy of the text to be issued under the Labour Code on the modalities for the exercise of the right to strike, taking into account the principles recalled above.

The Committee also noted that, under section 213 of the Labour Code, strikes are lawful when they are called with the approval of a simple majority of the employees of the workplace or enterprise. The Committee recalled that, when voting on strikes, the ballot method, the quorum and the majority required should not be such that the exercise of the right to strike becomes very difficult in practice. If a member State sees fit to establish in its legislation provisions requiring 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 majority and quorum are fixed at a reasonable level (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 170). The Committee urges the Government to indicate in its next report the measures taken to amend section 213 of the Labour Code in the light of the comments made above.

In its previous observation, the Committee noted that the Government had adopted a legislative decree prohibiting the exercise of the right to strike and to demonstrate throughout the national territory during the period of the elections. According to the Government, this legislative decree has not been used in practice. The Committee requests the Government to indicate whether this legislative decree was repealed following the elections.

The Committee expresses the firm hope that the Government will take the necessary measures to ensure that trade union organizations can exercise in full their right to organize their activities freely without interference from the public authorities.

The Committee notes that the Government has set up a tripartite committee responsible for rapidly proposing new provision of the Labour Code which would take into account the claims of the social partners, the reports of the labour inspection and the comments of the Committee. The Committee requests the Government to indicate any progress made in revising the Labour Code and recalls that technical assistance of the Office is at its disposal.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.

Finally, the Committee notes the comments made by the ITUC, dated 24 August 2010, concerning the application of the Convention, in particular, the allegations of death threats against trade union leaders, the attack against the President of the Free Trade Union of Medical Doctors of Burundi (SYMEBU), as well as other acts of intimidation. The Committee recalls that the rights of the workers’ and employers’ organizations can only be exercised in a climate that is free from violence, pressure or threats of any kind against the leaders and members of these organizations, and it is for governments to ensure that this principle is respected. The Committee requests the Government to provide its observations in this respect.

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

The Committee notes 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 reads as follows:

Article 2 of the Convention. The Committee urges the Government to take the appropriate measures to amend section 8 of Act No. 1/015 so as to lower the minimum membership required to establish a union in order to ensure in practice the rights of public servants to establish and join organizations of their own choosing, in accordance with Article 2 of the Convention.

Article 3. 1. The Committee noted previously that, under section 10 of Act No. 1/015, eligibility for leadership of a public service union is subject to a minimum length of service of three years. The Committee recalled that the autonomy of organizations can be effectively guaranteed only if their members have the right to elect their representatives in full freedom. This freedom means in particular that the public authorities should refrain from any intervention likely to hinder the exercise of this right, in particular regarding the eligibility requirements for union leaders. The issue of length of service as a condition for eligibility should therefore be left to the discretion of the organizations and their members. Noting the Government’s statement that it endorses this recommendation, the Committee requests the Government to take the appropriate measures to abolish the length of service requirement for the eligibility of trade union leaders so that civil servants can elect their representatives in full freedom, in accordance with Article 3 of the Convention.

2. The Committee noted previously that section 7 of Act No. 1/015 provides that, in the event of a leadership conflict in a union, the Minister of the Public Service may refer the matter to the Administrative Chamber of the Supreme Court for settlement. In this respect, the Committee recalled that the settlement of any internal conflict in a union should be left to the discretion of the union members themselves, without any intervention by the public authorities. The Committee recommended that, at the very least, referral to the Administrative Chamber of the Supreme Court should be by the union members themselves. Noting the Government’s indication that it agrees to amend to section 7 of Act No. 1/015 so as to leave the settlement of an internal dispute to a trade union, so as to guarantee in full the right of workers’ organizations to organize their administration and activities in full freedom, the Committee requests the Government to indicate the measures adopted in this respect, in accordance with Article 3 of the Convention.

3. The Committee noted previously that, for a strike by public servants to be legal, it has to fulfil a number of  conditions, including: (1) prior notification must be given specifying the length of the strike, in accordance with section 30; and (2) it must be called by a group of public servants, whether or not they are unionized, after approval by an absolute majority of the personnel in the public service concerned, in accordance with section 31. The Committee recalled that to require workers and their organizations by law to specify the length of the strike limits their right to organize their administration and activities and to formulate their programmes in full freedom. As to the approval of the strike by an absolute majority of the personnel in the public service concerned, the Committee emphasized that the ballot method, the quorum and the majority required should not be such that the exercise of the right to strike becomes very difficult in practice. Noting the Government’s indication that it will amend sections 30 and 31 of Act No. 1/015 in order, on the one hand, to ensure that there is no legal requirement to specify the length of the strike in the strike notice and, on the other, so that approval of the strike simply requires the majority of the votes cast, the Committee urges the Government to take the necessary measures.

4. With regard to section 39, which prohibits sympathy strikes, the Committee recalled previously that a general prohibition of sympathy strikes by public servants who do not exercise authority in the name of the State, and therefore have the right to strike, could lead to abuse. Noting the Government’s indication of its intention to confine the application of section 39 of Act No. 1/015 to public servants exercising authority in the name of the State, the Committee urges it to take the necessary measures.

5. The Committee noted previously that sections 32 to 35 of the Act deal with collective disputes and the procedures to be followed. During a strike, negotiations have to be continued between the parties or under the direction of a certified mediator chosen by agreement between the parties. In the event of disagreement as to the mediator or of the failure of the mediation, an arbitration board shall be appointed by the Minister of the Public Service at the request of one of the parties. Within four clear days of its appointment, the arbitration board shall issue an award, which has to be notified at once to the parties. Section 35 provides that, in the event of conciliation, the award shall be immediately enforceable. Where conciliation fails, the dispute shall be referred to the Administrative Court by the losing party. The Government had transmitted information on the effect of the intervention of the Court and, in particular, on the fact that a decision of the Administrative Court does not take effect if it has been appealed by one of the parties. It adds that in practice, no cases have been brought before the Administrative Court as the Government intended to settle all disputes amicably. While taking note of these indications, the Committee observes that recourse to the Administrative Court appears to result in a system of compulsory arbitration to end a dispute. The Committee recalls that, on the one hand, compulsory arbitration is acceptable only at the request of both parties to the dispute or in cases when a strike can be restricted or prohibited, i.e. in disputes involving public servants exercising authority in the name of the State or in essential services in the strict sense of the term. On the other, the Committee recalls that public servants not exercising authority in the name of the State should enjoy the right to strike and that this right may be restricted or prohibited only in the following two cases: (1) where the public servants are engaged in 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 of part of the population; and (2) in the event of an acute national crisis. Therefore, the Committee requests the Government to indicate if the decision of the Administrative Court or its appeal could put an end to a strike action by the public servants not exercising authority in the name of the State or not employed in essential services. The Committee also requests the Government to amend section 35 of Act No. 1/015 so as to allow recourse to compulsory arbitration only in the abovementioned cases.

Article 5. With regard to section 21 of Act No. 1/015, which provides that central organizations, federations and confederations are regulated by the provisions of Chapter I, which addresses the establishment of first-level organizations, the Committee noted that the effect of section 21 in practice is that first-level organizations can only join higher level organizations of public servants, and not organizations representing other workers. The Committee therefore recalled that, although first-level organizations of public servants may be restricted to this category of workers, such organizations should nonetheless be free to join federations and confederations of their own choosing, including those which also group together organizations from the private sector. Noting the Government’s indication that it will amend section 21 of Act No. 1/015 so as to guarantee the right of trade unions of public servants to establish federations and confederations of their own choosing, including those which also group together organizations from the private sector, in accordance with Article 5 of the Convention, the Committee requests the Government to take the necessary measures.

The Committee trusts that all the changes that the Government indicates that it wishes to make to Act No. 1/015, in accordance with the Committee’s recommendations, will be carried out in the near future and that the Government will be in a position to indicate the progress achieved in this respect in its next report.

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

The Committee notes that the Government’s report has not been received. It must therefore repeat its previous observation which read as follows:

The Committee requests the Government to send its observations on the comments submitted by the International Trade Union Confederation (ITUC) and by the Confederation of Burundi Trade Unions (COSYBU) on the application of the Convention..

Article 2 of the Convention. Right of public employees without distinction whatsoever to establish and join organizations of their own choosing. The Committee once again notes with regret the lack of the statutory provisions on the right to organize of magistrates and observes that this situation is the reason behind difficulties of registration of the SYMABU. The Committee trusts that the Government will take the necessary measures without delay in order to adopt such statutory provisions so as to ensure and clearly define the right to organize of magistrates.

Right to organize of minors. For several years, the Committee has been raising the matter of the compatibility of section 271 of the Labour Code with the Convention, as this section provides that minors under the age of 18 may not join a trade union without the explicit permission of their parents or guardians. The Committee requests the Government to recognize the right to join trade unions of minors under 18 years of age who are engaged in an occupational activity without the permission of their parents or guardians being necessary.

Article 3. Right of workers’ and employers’ organizations to draw up their constitutions and rules, elect their representatives in full freedom, organize their administration and activities and formulate their programmes without interference by the public authorities. Election of trade union officers. The Committee recalls that its previous comments related to section 275 of the Labour Code which sets the following conditions for holding the position of trade union officer or administrator:

–      Criminal record. Under section 275(3) of the Labour Code, holders of trade union office may not have been sentenced to imprisonment without suspension of sentence for more than six months. The Committee recalls that conviction for an act which, by its nature, does not call into question the integrity of the person and implies no real risk for the performance of trade union duties should not constitute grounds for exclusion from trade union office.

–      Belonging to the occupation. Section 275(4) of the Labour Code requires trade union leaders to have belonged to the occupation or trade for at least one year. The Committee previously requested the Government to make the legislation more flexible by allowing persons who had previously worked in the occupation to stand for office or by lifting this requirement for a reasonable proportion of trade union officers.

The Committee once again requests the Government to take the necessary measures to amend section 275(3) and (4) of the Labour Code, taking fully into account the principles recalled above.

Right to strike. In its previous comments, the Committee raised the matter of the succession of compulsory procedures to be followed before calling a strike (sections 191 to 210 of the Labour Code), which appear to authorize the Minister of Labour to prevent all strikes. Recalling that the right to strike is one of the essential means available to trade unions to further and defend the interests of their members, the Committee urges the Government to adopt and provide a copy of the text to be issued under the Labour Code on the modalities for the exercise of the right to strike, taking into account the principles recalled above.

The Committee also noted that, under section 213 of the Labour Code, strikes are lawful when they are called with the approval of a simple majority of the employees of the workplace or enterprise. The Committee recalled that, when voting on strikes, the ballot method, the quorum and the majority required should not be such that the exercise of the right to strike becomes very difficult in practice. If a member State sees fit to establish in its legislation provisions requiring 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 majority and quorum are fixed at a reasonable level (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 170). The Committee urges the Government to indicate in its next report the measures taken to amend section 213 of the Labour Code in the light of the comments made above.

In its previous observation, the Committee noted that the Government had adopted a legislative decree prohibiting the exercise of the right to strike and to demonstrate throughout the national territory during the period of the elections. According to the Government, this legislative decree has not been used in practice. The Committee requests the Government to indicate whether this legislative decree was repealed following the elections.

The Committee expresses the firm hope that the Government will take the necessary measures to ensure that trade union organizations can exercise in full their right to organize their activities freely without interference from the public authorities.

The Committee notes that the Government has set up a tripartite committee responsible for rapidly proposing new provision of the Labour Code which would take into account the claims of the social partners, the reports of the labour inspection and the comments of the Committee. The Committee requests the Government to indicate any progress made in revising the Labour Code and recalls that technical assistance of the Office is at its disposal.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.

Direct Request (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee notes the Government’s report.

Article 2 of the Convention. In its previous direct request, the Committee noted that section 8 of Act No. 1/015 of 29 November 2002, regulating the exercise of the right to organize and the right to strike in the public services requires public service unions to have at least 50 members at the time of their establishment. Section 24 provides that no union may continue to exist unless it demonstrates that it has more than the minimum membership. The Committee considers that this statutory requirement of a minimum of 50 members is excessive. Noting the Government’s indication that it has taken due note of its recommendation, the Committee urges the Government to take the appropriate measures to amend section 8 of Act No. 1/015 so as to lower the minimum membership required to establish a union in order to ensure in practice the rights of public servants to establish and join organizations of their own choosing, in accordance with Article 2 of the Convention.

Article 3. 1. The Committee noted previously that, under section 10 of Act No. 1/015, eligibility for leadership of a public service union is subject to a minimum length of service of three years. The Committee recalled that the autonomy of organizations can be effectively guaranteed only if their members have the right to elect their representatives in full freedom. This freedom means in particular that the public authorities should refrain from any intervention likely to hinder the exercise of this right, in particular regarding the eligibility requirements for union leaders. The issue of length of service as a condition for eligibility should therefore be left to the discretion of the organizations and their members. Noting the Government’s statement that it endorses this recommendation, the Committee requests the Government to take the appropriate measures to abolish the length of service requirement for the eligibility of trade union leaders so that civil servants can elect their representatives in full freedom, in accordance with Article 3 of the Convention.

2. The Committee noted previously that section 7 of Act No. 1/015 provides that, in the event of a leadership conflict in a union, the Minister of the Public Service may refer the matter to the Administrative Chamber of the Supreme Court for settlement. In this respect, the Committee recalled that the settlement of any internal conflict in a union should be left to the discretion of the union members themselves, without any intervention by the public authorities. The Committee recommended that, at the very least, referral to the Administrative Chamber of the Supreme Court should be by the union members themselves. Noting the Government’s indication that it agrees to amend to section 7 of Act No. 1/015 so as to leave the settlement of an internal dispute to a trade union, so as to guarantee in full the right of workers’ organizations to organize their administration and activities in full freedom, the Committee requests the Government to indicate the measures adopted in this respect, in accordance with Article 3 of the Convention.

3. The Committee noted previously that, for a strike by public servants to be legal, it has to fulfil a number of  conditions, including: (1) prior notification must be given specifying the length of the strike, in accordance with section 30; and (2) it must be called by a group of public servants, whether or not they are unionized, after approval by an absolute majority of the personnel in the public service concerned, in accordance with section 31. The Committee recalled that to require workers and their organizations by law to specify the length of the strike limits their right to organize their administration and activities and to formulate their programmes in full freedom. As to the approval of the strike by an absolute majority of the personnel in the public service concerned, the Committee emphasized that the ballot method, the quorum and the majority required should not be such that the exercise of the right to strike becomes very difficult in practice. Noting the Government’s indication that it will amend sections 30 and 31 of Act No. 1/015 in order, on the one hand, to ensure that there is no legal requirement to specify the length of the strike in the strike notice and, on the other, so that approval of the strike simply requires the majority of the votes cast, the Committee urges the Government to take the necessary measures.

4. With regard to section 39, which prohibits sympathy strikes, the Committee recalled previously that a general prohibition of sympathy strikes by public servants who do not exercise authority in the name of the State, and therefore have the right to strike, could lead to abuse.  Noting the Government’s indication of its intention to confine the application of section 39 of Act No. 1/015 to public servants exercising authority in the name of the State, the Committee urges it to take the necessary measures.

5. The Committee noted previously that sections 32 to 35 of the Act deal with collective disputes and the procedures to be followed. During a strike, negotiations have to be continued between the parties or under the direction of a certified mediator chosen by agreement between the parties. In the event of disagreement as to the mediator or of the failure of the mediation, an arbitration board shall be appointed by the Minister of the Public Service at the request of one of the parties. Within four clear days of its appointment, the arbitration board shall issue an award, which has to be notified at once to the parties. Section 35 provides that, in the event of conciliation, the award shall be immediately enforceable. Where conciliation fails, the dispute shall be referred to the Administrative Court by the losing party. The Government transmitted information on the effect of the intervention of the Court and, in particular, on the fact that a decision of the Administrative Court does not take effect if it has been appealed by one of the parties. It adds that in practice, no cases have been brought before the Administrative Court as the Government intended to settle all disputes amicably. While taking note of these indications, the Committee observes that recourse to the Administrative Court appears to result in a system of compulsory arbitration to end a dispute. The Committee recalls that, on the one hand, compulsory arbitration is acceptable only at the request of both parties to the dispute or in cases when a strike can be restricted or prohibited, i.e. in disputes involving public servants exercising authority in the name of the State or in essential services in the strict sense of the term. On the other, the Committee recalls that public servants not exercising authority in the name of the State should enjoy the right to strike and that this right may be restricted or prohibited only in the following two cases: (1) where the public servants are engaged in 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 of part of the population; and (2) in the event of an acute national crisis. Therefore, the Committee requests the Government to indicate if the decision of the Administrative Court or its appeal could put an end to a strike action by the public servants not exercising authority in the name of the State or not employed in essential services. The Committee also requests the Government to amend section 35 of Act No. 1/015 so as to allow recourse to compulsory arbitration only in the abovementioned cases.

Article 5. With regard to section 21 of Act No. 1/015, which provides that central organizations, federations and confederations are regulated by the provisions of Chapter I, which addresses the establishment of first-level organizations, the Committee noted that the effect of section 21 in practice is that first-level organizations can only join higher level organizations of public servants, and not organizations representing other workers. The Committee therefore recalled that, although first-level organizations of public servants may be restricted to this category of workers, such organizations should nonetheless be free to join federations and confederations of their own choosing, including those which also group together organizations from the private sector. Noting the Government’s indication that it will amend section 21 of Act No. 1/015 so as to guarantee the right of trade unions of public servants to establish federations and confederations of their own choosing, including those which also group together organizations from the private sector, in accordance with Article 5 of the Convention, the Committee requests the Government to take the necessary measures.

The Committee trusts that all the changes that the Government indicates that it wishes to make to Act No. 1/015, in accordance with the Committee’s recommendations, will be carried out in the near future and that the Government will be in a position to indicate the progress achieved in this respect in its next report.

Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee notes the Government’s report and the information provided in reply to its previous comments. The Committee also notes the observations of the International Trade Union Confederation (ITUC) received in August 2007 and relating to matters already raised by the Committee.

Article 2 of the Convention. Right of public employees without distinction whatsoever to establish and join organizations of their own choosing. With regard to the right to organize of magistrates, the Committee notes the Government’s indication that, even though the Minister of Justice considered that the registration of the Union of Magistrates of Burundi (SYMABU) was not valid as section 14 of the Labour Code excludes magistrates from its scope, the current Government recognizes the SYMABU as a partner which it meets to discuss its claims. Moreover, the Government refers to section 33 of Law No. 1/001 of 29 February 2000 on the reform of the regulations governing magistrates, which recognizes the right to organize to magistrates, including the right to strike for professional reasons, which they exercise in accordance with the legislative provisions of the regulations governing magistrates. The Government adds that these regulations have not yet been adopted. The Committee once again notes with regret the lack of the statutory provisions on the right to organize of magistrates and observes that this situation is the reason behind difficulties of registration of the SYMABU. The Committee trusts that the Government will take the necessary measures without delay in order to adopt such statutory provisions so as to ensure and clearly define the right to organize of magistrates.

Right to organize of minors. For several years, the Committee has been raising the matter of the compatibility of section 271 of the Labour Code with the Convention, as this section provides that minors under the age of 18 may not join a trade union without the explicit permission of their parents or guardians. The Committee requests the Government to recognize the right to join trade unions of minors under 18 years of age who are engaged in an occupational activity without the permission of their parents or guardians being necessary.

Article 3. Right of workers’ and employers’ organizations to draw up their constitutions and rules, elect their representatives in full freedom, organize their administration and activities and formulate their programmes without interference by the public authorities. Election of trade union officers. The Committee recalls that its previous comments related to section 275 of the Labour Code which sets the following conditions for holding the position of trade union officer or administrator.

(a)   Criminal record. Under section 275(3) of the Labour Code, holders of trade union office may not have been sentenced to imprisonment without suspension of sentence for more than six months. The Committee recalls that conviction for an act which, by its nature, does not call into question the integrity of the person and implies no real risk for the performance of trade union duties should not constitute grounds for exclusion from trade union office.

(b)   Belonging to the occupation. Section 275(4) of the Labour Code requires trade union leaders to have belonged to the occupation or trade for at least one year. The Committee previously requested the Government to make the legislation more flexible by allowing persons who had previously worked in the occupation to stand for office or by lifting this requirement for a reasonable proportion of trade union officers.

The Committee once again requests the Government to take the necessary measures to amend section 275(3) and (4) of the Labour Code, taking fully into account the principles recalled above.

Right to strike. In its previous comments, the Committee raised the matter of the succession of compulsory procedures to be followed before calling a strike (sections 191 to 210 of the Labour Code), which appear to authorize the Minister of Labour to prevent all strikes. The Committee notes that the Government confines itself to indicating that the provisions to be issued under the Labour Code respecting the modalities for the exercise of the right to strike have not yet been issued. Recalling that the right to strike is one of the essential means available to trade unions to further and defend the interests of their members, the Committee urges the Government to adopt and provide it with a copy of the text to be issued under the Labour Code on the modalities for the exercise of the right to strike, taking into account the principles recalled above.

The Committee also noted that, under section 213 of the Labour Code, strikes are lawful when they are called with the approval of a simple majority of the employees of the workplace or enterprise. The Committee recalled that, when voting on strikes, the ballot method, the quorum and the majority required should not be such that the exercise of the right to strike becomes very difficult in practice. If a member State sees fit to establish in its legislation provisions requiring 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 majority and quorum are fixed at a reasonable level (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 170). The Committee urges the Government to indicate in its next report the measures taken to amend section 213 of the Labour Code in the light of the comments made above.

In its previous observation, the Committee noted that the Government had adopted a legislative decree prohibiting the exercise of the right to strike and to demonstrate throughout the national territory during the period of the elections. According to the Government, this legislative decree has not been used in practice. The Committee requests the Government to indicate whether this legislative decree was repealed following the elections.

In its previous observation, the Committee noted the information provided by the Confederation of Burundi Trade Unions (COSYBU) reporting grave violations of trade union rights in relation to several trade union leaders, including the President of COSYBU, and also interference in the representativeness and everyday administration of COSYBU. In addition, according to the COSYBU, workers who endeavour to organize in the private sector are threatened with dismissal or demotion by their employers. The Committee notes that the ITUC reiterates these grave allegations in its communication of 2007. The Committee notes the Government’s reply indicating that the majority of COSYBU’s grievances took place under previous authorities and are regrettable and that the new Government is ready to cooperate closely with trade union organizations and that the COSYBU can attest to the positive steps taken in this regard. Finally, the Government indicates that there are no pending judicial proceeding concerning the COSYBU’s allegations. The Committee expresses the firm hope that the Government will take the necessary measures to ensure that trade union organizations can exercise in full their right to organize their activities freely without interference from the public authorities.

The Committee notes that the Government has set up a tripartite committee responsible for rapidly proposing new provision of the Labour Code which would take into account the claims of the social partners, the reports of the labour inspection and the comments of the Committee. The Committee requests the Government to keep it informed of the progress made in revising the Labour Code and recalls that technical assistance of the Office is at its disposal.

Furthermore, a request relating to other issues is being addressed directly to the Government.

Direct Request (CEACR) - adopted 2005, published 95th ILC session (2006)

The Committee notes that the Government’s report does not provide information on its previous comments, which related to the matters raised below. The Committee also notes the comments made by the Confederation of Burundi Trade Unions (COSYBU).

Article 2 of the Convention. The Committee notes that section 8 of Act No. 1/015 of 29 November 2002 regulating the exercise of the right to organize and the right to strike in the public service requires public service unions to have at least 50 members at the time of their establishment. Section 24 provides that no union may continue to exist unless it demonstrates that it has more than the minimum membership. The Committee recalls that, although a minimum membership requirement for the establishment of an organization is not in itself incompatible with the Convention, the number should be fixed in a reasonable manner so that the establishment of organizations is not hindered (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 81). In the Committee’s view, a statutory minimum of 50 members is excessive. It therefore requests the Government to take appropriate steps to amend section 8 so as to lower the minimum membership required to establish a union in order to ensure in practice the right of public servants to establish and join organizations of their choosing, in accordance with Article 2 of the Convention.

Article 3. 1. The Committee notes that, under section 10, eligibility for leadership in a public service union is subject to a minimum length of service of three years. The Committee recalls that the autonomy of organizations can be effectively guaranteed only if their members have the right to elect their representatives in full freedom. The public authorities should therefore refrain from any intervention likely to hinder the exercise of this right, in particular regarding the eligibility requirements for union leaders. The issue of length of service as a condition for eligibility should therefore be left to the discretion of the organizations and their members. The Committee accordingly requests the Government to abolish length of service as a condition for eligibility to trade union office so that public servants may elect their representatives in full freedom, in accordance with Article 3 of the Convention.

2. The Committee notes that section 7 of the Act provides that, in the event of a leadership conflict in a union, the Minister of the Public Service may refer the matter to the Administrative Chamber of the Supreme Court for settlement. The Committee emphasizes that the settlement of any internal conflict in a union should be left to the discretion of the union members themselves, without any intervention by the public authorities. The Committee therefore considers that, at the very least, referral to the Administrative Chamber of the Supreme Court should be by the union members themselves. It requests the Government to take the necessary measures to amend section 7 so that the settlement of an internal conflict in a union, or at least the initiative for doing so, is left to the discretion of its members, in order to guarantee fully the right of workers’ organizations to organize their administration and activities in full freedom, in accordance with Article 3 of the Convention.

3. The Committee notes that, for a strike by public servants to be legal, it must fulfil certain conditions, including: (1) prior notification must be given specifying the length of the strike, in accordance with section 30; and (2) it must be called by a group of public servants, whether or not they are unionized, after approval by an absolute majority of the personnel in the public service concerned, in accordance with section 31. In the Committee’s view, to require workers and their organizations by law to specify the length of the strike limits their right to organize their administration and activities and formulate their programmes in full freedom. As to the approval of the strike by an absolute majority of the personnel in the public service concerned, although as a principle such approval is not incompatible with the Convention, the Committee emphasizes that the ballot method, the quorum and the majority required should not be such that the exercise of the right to strike becomes very difficult in practice. The requirement of an absolute majority of all the personnel has always been deemed excessive by the Committee; if a member State sees fit to include in its legislation provisions requiring a vote by workers before a strike may be held, it should ensure that account is taken only of the votes cast, and that the quorum and majority are fixed at a reasonable level (see General Survey, op. cit., paragraph 170). The Committee accordingly requests the Government to take the necessary measures to amend sections 30 and 31 in order to ensure that there is no obligation to specify the length of the strike in the notification, and that prior approval of the strike requires only a simple majority of the votes cast.

4. The Committee notes that section 39 prohibits sympathy strikes. The Committee considers that a general prohibition of sympathy strikes for public servants who do not exercise authority in the name of the State, and therefore have the right to strike, could lead to abuse. The workers concerned should be able to take such action provided that the initial strike they are supporting is itself lawful (see General Survey, op. cit., paragraph 168). The Committee therefore requests the Government to take the necessary steps to confine section 39 to public servants exercising authority in the name of the State.

5. The Committee notes that sections 32-35 of the Act deal with collective disputes and the procedures to be followed. It notes that, during a strike, negotiations have to be continued between the parties or under the direction of a certified mediator chosen by agreement between the parties. In the event of a disagreement as to the mediator or of failure of the mediation, an arbitration board shall be appointed by the Minister of the Public Service at the request of one of the parties. Within four clear days of its appointment, the arbitration board shall issue an award, which must be notified at once to the parties. Section 35 provides that, in the event of conciliation, the award shall be immediately enforceable. Where there is no conciliation, the dispute shall be referred to the administrative court by the losing party. The Committee recalls that public servants not exercising authority in the name of the State should enjoy the right to strike and that this right may be restricted or prohibited only in the following two cases: (1) where the public servants are engaged in 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; and (2) in the event of an acute national crisis. As such, the Committee requests the Government to indicate the effect of the intervention by the court and to state whether it gives rise to a binding decision bringing an end to the strike for public servants not considered to exercise authority in the name of the State or not working in essential services.

Article 5. The Committee notes that, under section 20 of the Act, trade unions may establish central organizations, federations and confederations. Pursuant to section 21, these organizations are regulated by the provisions of Chapter I, which addresses the establishment of first-level organizations. The Committee notes that the upshot of section 21 is that first-level organizations can only join higher level organizations of public servants, and not organizations representing other workers. The Committee points out that, although first-level organizations of public servants may be restricted to this category of workers, such organizations should nonetheless be free to join federations and confederations of their own choosing, including those which also group together organizations from the private sector (see General Survey, op. cit., paragraph 193). The Committee requests the Government to take the necessary measures to amend section 21 so as to guarantee the right of unions of public servants to establish and join federations and confederations of their own choosing, including those which group together organizations from the private sector, in accordance with Article 5 of the Convention.

The Committee once again requests the Government to keep it informed in its next report on all the matters raised above.

Observation (CEACR) - adopted 2005, published 95th ILC session (2006)

The Committee notes the Government’s report. It also notes the discussions in the Conference Committee on the Application of Standards in 2005 and the comments made by the Confederation of Burundi Trade Unions (COSYBU) (see below).

1. Article 2 of the Convention. Right of public employees without distinction whatsoever to establish and join organizations of their own choosing. With regard to the right of association of magistrates, the Committee notes, according to the information provided by the Government, that Act No. 1/018 of 20 October 2004 does not prohibit magistrates from being organized, but provides that the exercise of the right to strike may be regulated with regard to certain occupational categories. The Government indicates in its report that the Minister of Justice considered that the registration of the Union of Magistrates of Burundi (SYMABU) was not valid as section 14 of the Labour Code excludes magistrates from its scope, but that regulations on the right to organize of magistrates are currently under examination and that an evaluation is being carried out by an ad hoc commission of the situation of all trade unions in relation to the legislation on labour and the public service. Recalling that all public service employees should have the right to establish occupational organizations, the Committee urges the Government to indicate the provisions guaranteeing the right to organize of magistrates.

Right to organize of minors. For several years, the Committee has been raising the matter of the compatibility of section 271 of the Labour Code with the Convention. Section 271 provides that minors under the age of 18 may not join a trade union without the explicit permission of their parents or guardians. While noting the information provided by the Government that this obligation is not taken into account in practice, the Committee once again hopes that the right to organize of young persons under 18 years of age engaged in an occupational activity will be fully recognized without parental authorization being necessary, in the context of the revision of the current Labour Code.

2. Article 3. Right of workers’ and employers’ organizations to draw up their constitutions and rules, elect their representatives in full freedom, organize their administration and activities and formulate their programmes without interference from the public authorities. Election of trade union officers. In its previous comments, the Committee noted that the Labour Code sets a number of conditions for holding the position of trade union officer or administrator.

(a) Criminal record. Under section 275(3) of the Labour Code, holders of trade union office may not have been sentenced to imprisonment without suspension of sentence for more than six months. In its report in 2002, the Government stated that it was planning to amend this provision after consulting the National Labour Council, in the light of the Committee’s comments that conviction for an act which, by its nature, does not call into question the integrity of the person and implies no real risk for the performance of trade union duties should not constitute grounds for exclusion from trade union office.

(b) Belonging to the occupation. Section 275(4) of the Labour Code requires trade union leaders to have belonged to the occupation or trade for at least one year. The Committee previously requested the Government to make the legislation more flexible by allowing persons who had previously worked in the occupation to stand for office or by lifting this requirement for a reasonable proportion of trade union officers.

The Committee notes the Government’s reaffirmation of its intention to amend section 275 of the Labour Code along the lines called for by the Committee. It trusts that the Labour Code will be revised rapidly and that the revision will take fully into account the principles set out above.

Right to strike. In its previous comments, the Committee raised the matter of the series of compulsory procedures to be followed before calling a strike (sections 191-210 of the Labour Code), which appear to authorize the Minister of Labour to prevent all strikes. The Committee noted in this connection the ICFTU’s assertion that there are procedural requirements empowering the authorities to determine whether or not a strike is lawful. In practice, the authorities have been able to prevent or bring an end to strikes on the grounds that they were prejudicing the national economy and were intended to support "the enemies" of the Government. Finally, several trade union leaders have been imprisoned over the past three years for calling strikes. The Committee notes that the Government has confined itself to recalling that the implementing provisions of the Labour Code respecting the conditions for the exercise of the right to strike have not yet been issued. The Committee emphasizes that the right to strike is one of the essential means available to trade unions to further and defend the interests of their members. Accordingly, the Committee urges the Government to reply to the ICFTU’s comments on this matter and to provide the draft text to be issued under the Labour Code on the conditions for the exercise of the right to strike, to which it referred in its previous reports, so that the Committee can examine its conformity with the provisions of the Convention.

Further, the Committee noted that, under section 213 of the Labour Code, strikes are lawful when they are called with the approval of a simple majority of the employees of the workplace or enterprise, whereas according to the Government, in practice, no vote by the workers has been required and a consensus has sufficed. The Committee recalled that, when voting on strikes, the ballot method, the quorum and the majority required should not be such that the exercise of the right to strike becomes very difficult in practice. If a member State sees fit to establish in its legislation provisions requiring 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 majority and quorum are fixed at a reasonable level (see General Survey on freedom of association and collective bargaining, 1994, paragraph 170). Noting the Government’s statement that the Committee’s proposals for the amendment of section 213 of the Labour Code will be discussed by the social partners, the Committee urges the Government to indicate in its next report the measures adopted or envisaged to amend section 213 in the light of the comments recalled above.

Finally, the Committee notes the information communicated by COSYBU according to which the Government has issued a Legislative Decree prohibiting the exercise of the right to strike and to demonstrate throughout the national territory during the period of the elections. The Committee recalls that the right to strike is one of the essential means available to trade unions to further and defend the interests of their members and that it may only be restricted in the context of the public service (public servants exercising authority in the name of the State), essential services in the strict sense of the term and in cases of acute national crisis (see General Survey, op. cit., paragraphs 148, 158 and 159). The Committee requests the Government to reply to these comments in its next report and to provide information on the abovementioned Legislative Decree.

3. The Committee also notes the information provided by COSYBU concerning the grave violations of trade union rights in relation to several trade union leaders, including the president of COSYBU, and also interference in the representativeness and everyday administration of COSYBU. In addition, COSYBU reports the absence up to now of organizations in the private sector, with workers who endeavour to organize being threatened with dismissal or demotion from their posts. The Committee requests the Government to reply to these comments and expresses the firm hope that the Government will take the necessary measures to ensure that trade union organizations can exercise in full their right to organize their activities freely without interference from the public authorities.

The Committee also requests the Government to provide information on the progress of the work of revising the Labour Code, as well as a copy of the new text once it is adopted. It recalls that the Government has requested the technical assistance of the Office and hopes that this will be provided in the near future.

In addition, a request relating to the legislation on the right to organize of public servants is being addressed directly to the Government.

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

The Committee notes that the Government’s report supplies no information in answer to its previous comments, which addressed the following matters.

Article 2 of the Convention. The Committee notes that section 8 of Act No. 1/015 of 29 November 2002 regulating the exercise of the right to organize and the right to strike in the public service requires public service unions to have at least 50 members at the time of their establishment. Section 24 provides that no union may continue unless it demonstrates that it has more than the minimum membership. The Committee recalls that, although a requirement of minimum membership is not in itself incompatible with the Convention, the number fixed should be reasonable so that the establishment of organizations is not hindered (see General Survey on freedom of association and collective bargaining, 1994, paragraph 81). In the Committee’s view, a statutory minimum of 50 members is excessive. It accordingly requests the Government to take appropriate steps to amend section 8 so as to lower the minimum membership required to establish a union in order to ensure effectively the right of public servants to establish and join organizations of their choosing, in accordance with Article 2 of the Convention.

Article 3. 1. The Committee notes that under section 10, eligibility to leadership in a public service union is subject to a minimum length of service of three years. The Committee recalls that the autonomy of organizations can be effectively guaranteed only if their members have the right to elect their representatives in full freedom. The public authorities should therefore refrain from any intervention likely to hinder the exercise of this right, in particular regarding the eligibility requirements for union leaders. The issue of length of service as a condition for eligibility should therefore be left to the discretion of the organizations and their members. The Committee accordingly requests the Government to abolish length of service as a condition for eligibility to trade union leadership so that public servants may elect their representatives in full freedom, in accordance with Article 3 of the Convention.

2. The Committee notes that section 7 of the Act provides that, in the event of a leadership conflict in a union, the Minister of the Public Service may refer the matter to the Administrative Chamber of the Supreme Court for Settlement. The Committee emphasizes that the settlement of any internal conflict in a union should be left to the discretion of the union members themselves, without any intervention by the public authorities. The Committee therefore considers that, at the very least, referral to the Administrative Chamber of the Supreme Court should be by the union members themselves. It requests the Government to take the necessary steps to amend section 7 so that the settlement of an internal conflict in a union, or at least the initiative for doing so, is left to the discretion of its members, in order to guarantee fully the right of workers’ organizations to organize their administration and activities in full freedom, in accordance with Article 3 of the Convention.

3. The Committee notes that for a strike in the public service to be legal, it must fulfil certain conditions, including: (1) prior notification must be given specifying the length of the strike, in accordance with section 30; (2) it must be called by a group of public servants, whether or not they are unionized, after approval by an absolute majority of the personnel of the public service concerned, in accordance with section 31. In the Committee’s view, to require workers and their organizations by law to specify the length of a strike may limit their right to organize their administration and activities and formulate their programmes in full freedom. As to the approval of the strike by an absolute majority of the personnel in the public service concerned, although as a principle such approval is not incompatible with the Convention, the Committee emphasizes that the ballot method, quorum and majority required should not be such that the exercise of the right to strike becomes very difficult in practice. The requirement of an absolute majority of all the personnel has always been deemed excessive by the Committee; if a member State sees fit to include in its legislation provisions requiring a vote by workers before a strike may be held, it should ensure that account is taken only of the votes cast, and that the quorum and majority are fixed at a reasonable level (see General Survey of 1994, op. cit., paragraph 170). The Committee accordingly requests the Government to take the necessary measures to amend sections 30 and 31 in order to ensure that there is no obligation to specify the length of the strike in the notification, and that prior approval of the strike requires only a simple majority of the votes cast.

4. The Committee notes that section 39 prohibits sympathy strikes. The Committee considers that a general prohibition of sympathy strikes for public servants who do not exercise authority in the name of the State and therefore have the right to strike, could lead to abuse. The workers concerned should be able to take such action provided that the initial strike they are supporting is itself lawful (see General Survey, op. cit., paragraph 168). The Committee therefore requests the Government to take the necessary steps to confine section 39 to public servants exercising authority in the name of the State.

5. The Committee notes that sections 32-35 of the Act deal with collective disputes and the procedures to be followed. It notes that, during a strike, negotiations have to be continued between the parties or under the direction of a certified mediator chosen by agreement between the parties. In the event of a disagreement as to the mediator or of failure of the mediation, an arbitration board shall be appointed by the Minister of the Public Service at the request of one of the parties. Within four clear days of its appointment, the arbitration board shall issue an award, which must be notified at once to the parties. Section 35 provides that, in the event of conciliation, the award shall be immediately enforceable. Where there is no conciliation, the dispute shall be referred to the administrative court by the losing party. The Committee recalls that public servants not exercising authority in the name of the State should enjoy the right to strike and that this right may be restricted or prohibited only in the following two cases: (1) where the public servants are engaged in 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; and (2) in the event of an acute national crisis. The Committee accordingly requests the Government to indicate the effect of the intervention by the court and to state whether it gives rise to a binding decision bringing an end to the strike for public servants not considered to exercise authority in the name of the State or working in essential services.

Article 5. The Committee notes that, under section 20 of the Act, trade unions may establish central organizations, federations and confederations. Pursuant to section 21, these organizations are regulated by the provisions of Chapter I, which addresses the establishment of first-level organizations. The Committee notes that the upshot of section 21 is that first-level organizations can join only higher-level organizations of public servants, and not organizations representing other workers. The Committee points out that although first-level organizations of public servants may be restricted to this category of workers, such organizations should nonetheless be free to join federations and confederations of their choosing, including those which also group together organizations from the private sector (see General Survey, op. cit., paragraph 193). The Committee requests the Government to take the necessary measures to amend section 21 so as to guarantee the right of unions of public servants to establish and join federations and confederations of their choosing, including those which group together organizations from the private sector, in accordance with Article 5 of the Convention.

The Committee requests the Government to keep it informed of all the matters raised above in its next report.

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

The Committee notes the information supplied in the Government’s report and the Government’s reply to the comments on the application of the Convention by the International Confederation of Free Trade Unions (ICFTU) and the Confederation of Burundi Trade Unions (COSYBU).

Article 2 of the Convention. 1. Right of public employees without distinction whatsoever to establish and join organizations of their own choosing. In its previous comments, the Committee noted the entry into force of Act No. 1-001 of February 2000 amending the magistrates’ regulations, and observed that the Act contained no express reference to magistrates’ right of association. Since magistrates are not governed by the same rules as public servants, the Committee requested the Government to indicate in its next report the provisions that ensure the right to organize of magistrates. It notes in this connection that, according to the Government, the Union of Magistrates of Burundi (SYMABU) was registered by Ministerial Ordinance No. 660/100/94 of 1 June 1994 and is operating normally. It notes, however, that according to COSYBU’s comments of 3 November 2003, following a magistrates’ strike, the Minister of Justice denied SYMABU’s existence in law and asserted that magistrates do not have the right to organize.

Recalling that all public service employees should have the right to establish occupational organizations, the Committee asks the Government to specify in its next report whether magistrates have the right to organize and, if so, to indicate the provisions laying down this right for magistrates. The Committee also requests the Government to reply in its next report to COSYBU’s assertion that SYMABU has been denied existence in law.

2. Right to organize of minors. For several years the Committee has been raising the matter of the compatibility of section 271 of the Labour Code with the Convention. Section 271 provides that minors under the age of 18 may not join a trade union without express permission from their parents or guardians. The Committee notes the Government’s statement in its report that minors will be given the right to organize in the forthcoming revision of the Labour Code. The Committee notes this information and requests the Government to ensure fully the right to organize of minors of working age without authorization from their parents or guardians.

Article 3. Right of workers’ and employers’ organizations to draw up their constitutions and rules, to elect their representatives in full freedom, to organize their administration and activities and to formulate their programmes without interference from the public authorities. 1. Election of trade union officers. In its previous comments the Committee noted that the Labour Code sets a number of conditions for holding the position of trade union officer or administrator.

(a) Criminal record. Under section 275(3) of the Labour Code, anyone sentenced to more than six months’ imprisonment with no suspension of sentence may not hold trade union office. In its report for 2002, the Government stated that it was planning to amend this provision after consulting the National Labour Council, in the light of the Committee’s observation that conviction for an act which, by its nature, does not call into question the integrity of the person and implies no real risk for the performance of trade union duties should not constitute grounds for exclusion from trade union office.

(b) Belonging to the occupation. Section 275(4) of the Labour Code requires trade union leaders to have belonged to the occupation or trade for at least one year. The Committee requested the Government to make the legislation more flexible by allowing persons who formally worked in the occupation to stand for office or by lifting this requirement for a reasonable proportion of trade union officers. In its report for 2002, the Government stated that it was planning to amend this provision after consulting the National Labour Council.

The Committee trusts that the revision of the Labour Code will fully take into account the abovementioned principles.

2. The right to strike. In its previous comments the Committee raised the matter of the series of compulsory procedures to be followed before taking strike action (sections 191 to 210 of the Labour Code), which appears to authorize the Minister of Labour to prevent all strikes. The Committee noted in this connection the ICFTU’s assertion that there are procedural requirements that empower the authorities to determine whether or not a strike is lawful. In practice, this has enabled the authorities to prevent or end strikes on the grounds that they were detrimental to the national economy and sought to support the "enemies" of the Government. Lastly, in the course of the last three years several trade union leaders have been imprisoned for calling strikes. The Committee notes that the Government has not responded to the ICFTU’s comments. Recalling that the right to strike is one of the essential means available to trade unions of furthering and defending the interests of their members, the Committee again requests the Government to respond to the ICFTU’s comments on this matter and to provide the draft text implementing the Labour Code with regard to procedures for the exercise of the right to strike to which it referred in its previous reports, so that the Committee may ascertain whether it is consistent with the provisions of the Convention.

The Committee further noted that, under section 213 of the Labour Code, strikes are lawful when they are called with the approval of a simple majority of the employees of the workplace or enterprise, whereas according to the Government, in practice, no vote has been required and a consensus has sufficed. The Committee recalled that, when voting on strikes, the ballot method, quorum and majority required should not be such that the exercise of the right to strike becomes difficult in practice. If a member State sees fit to establish in its legislation provisions requiring 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 majority and quorum are fixed at a reasonable level (see General Survey on freedom of association and collective bargaining, 1994, paragraph 170). The Committee accordingly asks the Government once again to indicate in its next report the measures taken or envisaged to amend section 213 in the light of the comments recalled above.

The Committee requests the Government to report on progress made in revising the Labour Code and to provide a copy of the new text as soon as it is adopted.

Lastly, the Committee noted the ICFTU’s assertion that the Government is preventing trade unions from choosing their representatives on national tripartite bodies, as a result of which the work of the National Employment Council has come to a standstill. The Committee notes the Government’s statement that it raises no obstacles to trade union elections and that it has observed that, on the contrary, most trade unions fail in their statutory obligation to renew the membership of their bodies periodically. The Committee takes note of this information and hopes that the Government will take the necessary steps to ensure that trade union organizations may exercise in full the right to organize their activities freely, including the right to choose their representatives on national tripartite bodies without interference from the public authorities.

In addition, the Committee is addressing certain other matters in a request directly to the Government.

Direct Request (CEACR) - adopted 2003, published 92nd ILC session (2004)

With reference to its observation, the Committee notes with interest the entry into force of Act No. 1/015 of 29 November 2002 issuing regulations on the exercise of the right to organize and the right to strike in the public service and wishes to draw the Government’s attention to the following points.

Article 2 of the Convention. Right of workers and employers, without distinction whatsoever, to establish and join organizations of their own choosing. The Committee notes that section 8 of the Act sets the minimum number of 50 members of unions of public servants when they are established. Section 24 provides that no union may continue unless it demonstrates that it has more than the required minimum number of members. The Committee recalls that, although the requirement of a minimum number of members for the establishment of an organization is not in itself incompatible with the Convention, the number should be fixed in a reasonable manner so that the establishment of organizations is not hindered (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 81). In the Committee’s view, the requirement of a minimum of 50 members fixed by law is excessive. The Committee therefore requests the Government to take the necessary measures to amend section 8 so that the minimum number of members required to establish a union is reduced so as to guarantee effectively the right of public servants to establish and join organizations of their own choosing, in accordance with Article 2 of the Convention.

Article 3. Right of workers’ and employers’ organizations to draw up their constitutions and rules, to elect their representatives in full freedom, to organize their administration and activities and to formulate their programmes without the interference of the public authorities. The Committee notes that section 10 establishes a length of service of at least three years in the public service as an eligibility condition to be a union leader. The Committee recalls that the autonomy of organizations can only be effectively guaranteed if its members have the right to elect their representatives in full freedom. The public authorities should therefore refrain from any intervention likely to hinder the exercise of this right, in particular concerning the eligibility conditions for the leaders. The issue of length of service as an eligibility condition should therefore be left to the discretion of the organizations and their members. The Committee therefore requests the Government to take the necessary measures to amend section 10 and to eliminate length of service as an eligibility condition for union leaders so that public servants may elect their representatives in full freedom in accordance with Article 3.

The Committee notes that section 7 of the Act provides that, in the event of a leadership conflict in a union, the Minister of Public Service may refer the matter to the Administrative Chamber of the Supreme Court for resolution. The Committee emphasizes that the resolution of any internal conflict in a union should be left to the decision of the union members themselves, without any intervention by the public authorities. The Committee therefore considers that it should, at the very least, be for the members of the union to refer the matter to the Administrative Chamber of the Supreme Court. It requests the Government to take the necessary measures to amend section 7 so that the resolution of an internal conflict in a union, or at the very least the initiative of doing so, is left at the discretion of its members in order to guarantee fully the right of workers’ organizations to organize their administration and activities in full freedom in accordance with Article 3.

The Committee duly notes that the right to strike of public servants is recognized, with the exception of holders of public office and those responsible for grading, by virtue of section 27 of the Act. The Committee notes however that, for a strike to be legal, it has to fulfil a number of conditions, including: (1) prior notification must be given specifying the length of the strike, in accordance with section 30; and (2) it must be called by a group of public servants, whether or not they are unionized, after approval by an absolute majority of the personnel of the public service concerned, in accordance with section 31 of the Act. The Committee considers that imposing a legal obligation on workers and their organizations to specify the length of a strike may limit their right to organize their administration and activities and formulate their programmes in full freedom. With regard to the approval of the strike by the absolute majority of the personnel in the public service concerned, although the principle of such approval is not incompatible with the Convention, the Committee emphasizes that the ballot method, the quorum and majority required should not be such that the exercise of the right to strike becomes very difficult in practice. The requirement of an absolute majority of all the personnel has always been deemed excessive by the Committee; if a member 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 quorum and majority are fixed at a reasonable level (General Survey, op. cit., paragraph 170). The Committee therefore requests the Government to take the necessary measures to amend sections 30 and 31 in order to ensure, on the one hand, that there is no obligation to specify the length of the strike in the strike notice and, on the other hand, that prior approval of the strike requires only a simple majority of the votes cast.

The Committee notes that section 39 prohibits sympathy strikes. The Committee considers that a general prohibition of sympathy strikes, for public servants not exercising authority in the name of the State and who therefore have the right to strike, could lead to abuse. The workers concerned should be able to take such action provided that the initial strike they are supporting is itself lawful (see General Survey, op. cit., paragraph 168). The Committee therefore requests the Government to take the necessary measures to limit the application of section 39 to public servants exercising authority in the name of the State.

The Committee notes that sections 32 and 35 of the Act address collective disputes and the procedures to be followed. It notes that, during a strike, negotiations have to be continued between the parties or under the direction of a certified mediator chosen by agreement between the parties. In the event of a disagreement with regard to the mediator or the failure of mediation, an arbitration board shall be appointed by the Minister of Public Service at the request of one of the parties. Within four days of its appointment, the arbitration board shall issue an arbitration award which shall be notified to both parties forthwith. Section 35 provides that, in the event of conciliation the award shall be immediately enforceable. Where there is no conciliation, the dispute shall be referred to the administrative court by the losing party. The Committee recalls that public servants not exercising authority in the name of the State should enjoy the right to strike and that this right may only be restricted or prohibited in the following two cases: (1) where the public servants are engaged in 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; and (2) in the event of an acute national crisis. The Committee requests the Government to indicate the effect of intervention by the Court, and in particular whether it gives rise to a binding ruling, bringing an end to the strike for public servants not considered to exercise authority in the name of the State or to work in essential services.

Article 5. The right of trade unions to establish and join federations and confederations of their own choosing. The Committee notes that, by virtue of section 20 of the Act, trade unions may establish central organizations, federations and confederations; under the terms of section 21, these organizations are regulated by the provisions of Chapter I respecting in particular the establishment of first-level organizations. The Committee notes that the upshot of section 21 in practice is that first-level organizations can only join central organizations or federations of unions of public servants, to the exception of unions representing other workers. The Committee therefore recalls that, although first-level organizations of public servants may be restricted to this category of workers, such organizations should, however, be free to join federations and confederations of their choosing, including those which also group together organizations from the private sector (see General Survey, op. cit., paragraph 193). The Committee requests the Government to take the necessary measures to amend section 21 to guarantee the right of unions of public servants to establish and join federations and confederations of their own choosing, including those which group together organizations from the private sector, in accordance with Article 5.

The Committee requests the Government to keep it informed in its next report with regard to all the points raised above.

Observation (CEACR) - adopted 2003, published 92nd ILC session (2004)

The Committee notes that the Government’s report has not been received. It must accordingly repeat its previous comments. The Committee also notes that the International Confederation of Free Trade Unions (ICFTU) sent comments on the application of the Convention on 26 March 2003 and the Confederation of Burundi Trade Unions (COSYBU) sent comments on 3 November 2003 to which the Government has not as yet replied.

The Committee requests the Government to transmit any observations it might wish to make in respect of these comments.

Article 2 of the Convention. 1. Right of public employees without distinction whatsoever to establish and join organizations of their own choosing. In its previous comments, the Committee noted that section 14 of the Labour Code excludes state employees and magistrates from the scope of the Code. The Committee notes with interest the entry into force of Act No. 1/015 of 29 November 2002 issuing regulations on the exercise of the right to organize and the right to strike in the public service. The Committee raises a number of questions in this connection in a request addressed directly to the Government. With regard to magistrates, the Committee noted previously the entry into force of Act No. 1-001 of February 2000 amending the magistrates’ regulations, and observed that the Act contained no express reference to the magistrates’ right of association. Since magistrates are not governed by the same rules as public servants, the Committee again requests the Government to indicate in its next report the provisions that ensure the right to organize of magistrates.

2. Right to organize of minors. For several years, the Committee has been raising the issue of the compatibility of section 271 of the Labour Code with the Convention. Section 271 provides that young people under the age of 18 may not join a trade union without the express permission of their parents or guardians. In its report for 2002, the Government stated that it planned to amend section 271 of the Labour Code so as to enable minors to join trade unions without prior authorization from their parents. The Committee therefore asks the Government once again to indicate the measures taken or envisaged to enable minors who are legally entitled to work, whether as workers or as apprentices, to join trade unions without parental authorization.

Article 3. Right of workers’ and employers’ organizations to draw up their constitutions and rules, to elect their representatives in full freedom, to organize their administration and activities and to formulate their programmes without interference from the public authorities. 1. Election of trade union officers. In its previous comments the Committee noted that the Labour Code sets a number of conditions for holding the position of trade union officer or administrator.

-  Criminal record. Under section 275 of the Labour Code, anyone sentenced to more than six months’ imprisonment without suspension of sentence may not hold trade union office. In its report for 2002, the Government stated that it was planning to amend this provision, after consulting the National Labour Council, in the light of the Committee’s observation that conviction for an act which, by its nature, does not call into question the integrity of the person concerned and implies no real risk for the performance of trade union duties should not constitute grounds for exclusion from trade union office.

-  Belonging to the occupation. Section 275(4) of the Labour Code requires trade union leaders to have belonged to the occupation or trade for at least one year. The Committee requested the Government to make the legislation more flexible by allowing persons who formerly worked in the occupation to stand for office or by lifting this requirement for a reasonable proportion of trade union officers. In its report for 2002, the Government stated that it was planning to amend this provision after consulting the National Labour Council.

The Committee requests the Government to report on developments in the amendment of section 275(3) and (4) of the Labour Code and to provide copies of the amendments.

2. The right to strike. In its previous comments the Committee raised the matter of the series of compulsory procedures to be followed before taking strike action (sections 191-210 of the Labour Code) which appear to authorize the Minister of Labour to prevent all strikes. The Committee notes in this connection the observation by the ICFTU to the effect that there are conditions of a procedural nature which empower the authorities to determine whether or not a strike is lawful. In practice, this has enabled the authorities to prevent or end strikes on the grounds that they would be detrimental to the national economy and sought to support the enemies (sic) of the Government. Lastly, in the course of the last three years several trade union leaders have been imprisoned for calling strikes. The Committee recalls that the right to strike is one of the essential means available to trade unions in order to further and defend the interests of their members. It may be restricted or prohibited only in the following three instances: (1) where public servants exercise authority in the name of the State; (2) in essential services in the strict sense of the term, that is, services the interruption of which would endanger the life, health or safety of the whole or part of the population; (3) in the event of an acute national crisis. The Committee further recalls that penalties may be imposed on strikers only if the prohibitions, restrictions or conditions pertaining to the exercise of the right to strike are consistent with the principles of freedom of association. Furthermore, even in the event of non-compliance with prohibitions or restrictions that are consistent with the principles of freedom of association, the penalties imposed must be commensurate with the seriousness of the offence; measures of imprisonment should accordingly be avoided for peaceful strikes (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 179). In these circumstances, the Committee again requests the Government to provide the draft text implementing the Labour Code concerning procedures for the exercise of the right to strike to which it referred in its previous reports, so that the Committee may ascertain whether it is consistent with the provisions of the Convention, and to reply to the ICFTU’s observations on this matter.

The Committee likewise noted previously that under section 213 of the Labour Code strikes are lawful when they are called with the approval of a simple majority of the employees of the workplace or enterprise whereas, according to the Government, in practice no vote was required and a consensus sufficed. The Committee recalls that when voting on strikes, the ballot method, quorum and majority required should not be such that the exercise of the right to strike becomes difficult in practice. If a member 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 a count 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 indicate in its next report the measures taken or envisaged to amend section 213 in the light of the above.

Lastly, the Committee notes the ICFTU’s observation that the Government is preventing trade union organizations from choosing their representatives on national tripartite bodies, as a result of which the work of the National Employment Council has come to a standstill. Recalling that trade unions have the right to organize their activities in full freedom without interference from the public authorities, the Committee requests the Government to send its comments in this connection.

The Committee expresses the firm hope that the Government’s next report will be sent and that it will reply to the above matters.

The Committee is also addressing a request on certain other points directly to the Government.

Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee notes the information contained in the Government’s report. It recalls that in its previous comments it raised the following points.

Article 2 of the Convention. 1. Trade union rights of public servants. In its previous comments the Committee had noted that section 14 of the Labour Code excludes state employees and magistrates from the scope of the Code. The Committee notes with interest in this connection that Legislative Decree No. 1-009 of 6 June 1998 (Public Service Regulations) provides in section 28 for the right to organize of public servants. The Committee also notes the entry into force of Act No. 1-001 of February 2000 amending the magistrates’ regulations. Noting that there is no express reference in this Act to the magistrates’ right of association, the Committee asks the Government to specify in its next report the provisions which ensure that magistrates have such a right.

2. Trade union rights of minors. The Committee has been pointing out for several years that section 271 of the Labour Code under which young people under the age of 18 may not join a trade union without the express authorization of their parents or guardians needs to be amended so that minors who are legally entitled to work have the right to join trade unions. In its last report, the Government states that it is considering amending section 271 of the Labour Code so as to allow minors to join trade unions without previous parental authorization. The Committee therefore once again asks the Government to indicate the measures taken or envisaged to ensure that minors who are entitled to enter the labour market either as workers or as apprentices have the right to join trade unions without parental authorization.

Article 3. 1. Public servants not exercising authority in the name of the State. The Committee notes that the bill laying down rules for the exercise of the right to strike in the public service has recently been approved by Parliament and is currently being examined by the Senate. The Committee requests the Government to send the text of the above bill as soon as it has been adopted.

2. Election of trade union leaders. The Committee noted previously that the Labour Code sets a number of conditions for holding the position of trade union officer or administrator.

-  Criminal record (section 275 of the Labour Code). In its previous comments the Committee recalled that a conviction for an act which, by its nature, does not call into question the integrity of the person concerned and implies no real risk for the performance of trade union duties should not constitute grounds for exclusion from trade union office. In its last report, the Government states that it is planning to amend this provision following consultations with the National Labour Council. The Committee requests the Government to send, as soon as they have been adopted, the amendments to ensure that only offences that impair the performance of trade union duties are taken into consideration in barring candidates from trade union office.

-  Belonging to the respective occupation (section 275 of the Labour Code). The Committee recalled that a provision requiring trade union leaders or administrators to have belonged to the occupation or trade for at least one year can impair the right of organizations to elect their representatives in full freedom by denying them the possibility of electing qualified people such as full-time union officers or pensioners, or by depriving them of the benefits of the experience of certain officers when they are unable to provide enough qualified persons from among their own ranks. The Committee asked that the Government make its legislation more flexible by allowing persons who formerly worked in the occupation to stand for office or by lifting this requirement for a reasonable proportion of trade union officers. In its last report, the Government states that it is considering the amendment of this provision following consultations with the National Labour Council. The Committee requests the Government to send a copy of the amendments as soon as they have been adopted.

Articles 3 and 10. Right of workers’ organizations to organize their administration and their activities to further and defend the interests of their members. Regarding the series of compulsory procedures to be followed before taking strike action (sections 191-210 of the Labour Code) which appear to authorize the Minister to prevent all strikes, the Committee again asks the Government to provide the draft implementing text concerning procedures for the exercise of the right to strike to which it referred in its previous reports, so that the Committee may ascertain whether it is consistent with the provisions of the Convention.

The Committee also noted that, under section 213 of the Labour Code, strikes are lawful when they are called with the approval of a simple majority of the employees of the workplace or enterprise, whereas in practice no vote on the matter was required and a consensus sufficed. The Government states in its report that the questions concerning Articles 3 and 10 of the Convention will be submitted to the National Labour Council so that a common position may be agreed. The Committee requests the Government to keep it informed of any new developments in this respect.

The Committee again requests the Government to take the necessary steps, in the light of the above comments, to bring its legislation into conformity with the Convention.

Observation (CEACR) - adopted 2001, published 90th ILC session (2002)

The Committee notes the information contained in the Government’s report, which is confined to recalling the information provided in its previous reports. It recalls that its previous comments related to the following points:

  Article 2

1. Trade union rights of public servants. The Committee had noted that section 14 of the Labour Code excludes public servants and magistrates from its scope. It notes that according to the Government, the Statute of public servants provides in section 29 for the right to organize but there is still no legal text providing measures for the exercise of the right to strike. The Government also indicates that the Statute of magistrates provides for the right to organize. In this regard, the Committee once again requests the Government to send it copies of the Statute of public servants and the Statute of magistrates currently in force, as well as the text fixing the means of exercising the right to strike for public servants.

2. Trade union rights of minors. The Committee had noted that section 271 of the Labour Code provides that minors under the age of 18 years must obtain explicit authorization from their parent or guardian to join a trade union. The Committee takes due note of the Government’s statement according to which no minor can perform an act of a legal nature without the authorization of his or her parents. However, the Government had given the assurance that it would abolish this authorization concerning the decision to join a trade union. The Committee requests that the Government indicate the measures which have been taken or are envisaged to ensure the trade union rights of minors who are entitled to have access to the labour market, both as workers and as apprentices, without the requirement of parental authorization.

  Article 3

1. Election of trade union leaders. The Committee noted that the Labour Code sets certain conditions for holding the position of trade union officer or administrator.

-  Criminal record (section 275 of the Labour Code). This section provides that trade union leaders or administrators must not have served a definitive term of imprisonment of more than six months. The Committee notes the Government’s statement that court decisions have found workers guilty of misuse of funds but that it does not have access to these judgements. The Committee considers that a conviction for misuse of funds may be viewed as an act, the nature of which is such as to call into question the integrity of the person concerned and offers tangible risks for the performance of trade union duties. However, the above section is particularly broad in its wording and could therefore cover acts without any real bearing on qualities of integrity required to discharge trade union office. The Committee requests that the Government indicate the measures which have been taken or are envisaged to amend this section with a view to ensuring that only crimes prejudicial to the performance of trade union duties are taken into consideration when disbarring candidates from trade union office.

-  Belonging to the respective occupation (section 275). This section provides that the administrator or trade union leader must have belonged to the occupation or trade for at least one year. The Committee considers that provisions which require all candidates for trade union office to belong to the respective occupation or enterprise are contrary to the guarantees set forth in the Convention. Provisions of this type infringe the organization’s right to elect representatives in full freedom by preventing qualified persons, such as full-time union officers or pensioners, from carrying out trade union duties or by depriving unions of the benefits of the experience of certain officers when they are unable to provide enough qualified persons from among their own ranks. Moreover, there is also a real risk of interference by the employer through the dismissal of trade union officers, which deprives them of their trade union office (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 117). The Committee again requests the Government to modify its legislation by accepting the candidature of persons who worked previously in the respective occupation or by lifting this requirement for a reasonable proportion of trade union officers.

2. Articles 3 and 10 of the Convention. The right of workers’ organizations to organize their administration and activities to further and defend the interests of their members. The Committee had noted that the series of compulsory procedures prior to taking strike action laid down in the Labour Code (sections 191-210) would suggest that the minister was empowered to prohibit any strike.

In recent reports, the Government has indicated that it is aware of the necessity to clarify the modalities concerning the exercise of the right to strike and that a draft text to be issued under the Labour Code on this matter already existed and would be examined by the National Labour Council. The Committee once again requests that the Government provide it with a copy of the above text on the modalities for the exercise of the right to strike so that it can examine its conformity with the provisions of the Convention.

The Committee had also noted that, under the terms of section 213 of the Labour Code, a strike is legal when it is called following a vote approved by a simple majority of the employees of the workplace or the enterprise. In this regard, the Government indicated that in practice a vote of the workers concerned was not necessary and that it was sufficient for consensus to exist on this matter. The Committee requests that the Government indicate the measures which have been taken or are envisaged to bring the legislation into conformity with practice.

The Committee hopes that the Government, in the light of the comments made above, will take all the necessary measures to bring its national legislation into conformity with the Convention. It draws the Government’s attention to the availability of the Office to provide any technical assistance in this respect that it may consider necessary.

Observation (CEACR) - adopted 2000, published 89th ILC session (2001)

The Committee notes 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 comment, which reads as follows:

The Committee had noted the information contained in the Government’s report and particularly the entry into force of the Transitional Constitutional Act which recognizes the right to organize and the right to strike (sections 30 and 37). It recalled that its previous comments concerned the following:

1.  Trade union rights for public servants.  The Committee had noted that section 14 of the Labour Code excludes public servants and magistrates from its scope. It notes that according to the Government, the Statute of public servants provides in section 29 for the right to organize but there is still no legal text providing measures for the exercise of the right to strike. The Government also indicates that the Statute of magistrates provides for the right to organize. In this regard, the Committee requests the Government to send it copies of the Statute of public servants and the Statute of magistrates currently in force as well as the text fixing the means of exercising the right to strike for public servants as soon as it is adopted.

2.  Trade union rights for minors.  The Committee had noted that section 271 of the Labour Code provides that minors under the age of 18 years must obtain explicit authorization from the parent or guardian to join a trade union. The Committee takes due note of the Government’s statement according to which no minor can perform an act of a legal nature without the authorization from his or her parents. However, the Government indicates that it could abolish this authorization concerning the decision to join a trade union. The Committee requests the Government to send it a copy of the text amending this provision as soon as it is adopted.

3.  Election of trade union leaders.  The Committee noted that the Labour Code sets certain conditions for holding the position of trade union leader or administrator.

-  Criminal record (section 275 of the Labour Code).  This section provides that trade union leaders or administrators must not have served a definitive term of imprisonment of more than six months. The Committee notes the Government’s statement that court decisions have found workers guilty of misuse of funds but that it does not have access to these judgements. In this regard, the Committee recalls that conviction for an act, the nature of which is not such as to call into question the integrity of the person concerned and is not such as to be prejudicial to the performance of trade union duties, should not constitute grounds for disqualification from trade union office. It also requests the Government to provide a copy of the Criminal Code in force.

-  Belonging to the respective occupation (section 275).  This section also provides that the administrator or trade union leader should belong to the occupation or trade for at least one year. In this regard, the Government indicates that the Labour Code was adopted in full consultation with the social partners and that they had all agreed on the requirements to be a trade union officer. In this respect, the Committee has always considered that the provisions which require all candidates for trade union office to belong to the respective occupation or enterprise are contrary to the guarantees set forth in the Convention. Provisions of this type infringe the organization’s right to elect representatives in full freedom by preventing qualified persons, such as full-time union officers or pensioners, from carrying out trade union duties or by depriving unions from the benefits of the experience of certain officers when they are unable to provide enough qualified persons from among their own ranks. Moreover, there is also a real risk of interference by the employer through the dismissal of trade union officers, which deprives them of their trade union office (see General Survey on freedom of association and collective bargaining of 1994, paragraph 117). The Committee again requests the Government to modify its legislation by accepting the candidature of persons who worked previously in the respective occupation or by lifting this requirement for a reasonable period of time for trade union officers.

4.  Articles 3 and 10 of the Convention. The right of workers’ organizations to organize their administration and activities to further and defend the interests of their members.  The Committee had noted that the series of compulsory procedures prior to taking strike action laid down in the Labour Code (sections 191-210) would suggest that the minister was empowered to prohibit any strike. The Committee notes that the Government provides information on five strikes that have occurred since 1993 in the public sector as well as two strikes in the private sector.

The Government adds that it is aware of the necessity to clarify the modalities concerning the exercise of the right to strike and that a draft text exists already on this matter and will be examined by the National Labour Council. The Committee requests the Government to send it a copy of the said text as soon as it will be adopted.

The Committee had also noted that, pursuant to section 213 of the Labour Code, a strike is legal after a vote approved by a simple majority of the employees of the workplace or the enterprise. In this regard, the Government indicates that in practice a vote of the workers concerned is not necessary as long as there exists a consensus to call a strike. On this point, the Committee is of the opinion that it would be advisable for the Government to take measures in order to put its legislation in conformity with its practice.

The Committee hopes that the Government will adopt the necessary measures in light of the above comments to bring its national legislation into full conformity with the Convention.

Direct Request (CEACR) - adopted 1999, published 88th ILC session (2000)

The Committee notes with interest the information contained in the Government's report and particularly the entry into force of the Transitional Constitutional Act which recognizes the right to organize and the right to strike (sections 30 and 37). It recalls that its previous comments concerned the following.

1. Trade union rights for public servants. The Committee had noted that section 14 of the Labour Code excludes public servants and magistrates from its scope. It notes that according to the Government, the Statute of public servants provides in section 29 for the right to organise but there is still no legal text providing measures for the exercise of the right to strike. The Government also indicates that the Statute of magistrates provides for the right to organise. In this regard, the Committee requests the Government to send it copies of the Statute of public servants and the Statute of magistrates currently in force as well as the text fixing the means of exercising the right to strike for public servants as soon as it is adopted.

2. Trade union rights for minors. The Committee had noted that section 271 of the Labour Code provides that minors under the age of 18 years must obtain explicit authorization from the parent or guardian to join a trade union. The Committee takes due note of the Government's statement according to which no minor can perform an act of a legal nature without the authorization from his or her parents. However, the Government indicates that it could abolish this authorization concerning the decision to join a trade union. The Committee requests the Government to send it a copy of the text amending this provision as soon as it is adopted.

3. Election of trade union leaders. The Committee notes that the Labour Code sets certain conditions for holding the position of trade union leader or administrator.

-- Criminal record (section 275 of the Labour Code). This section provides that trade union leaders or administrators must not have served a definitive term of imprisonment of more than six months. The Committee notes the Government's statement that court decisions have found workers guilty of misuse of funds but that it does not have access to these judgements. In this regard, the Committee recalls that conviction for an act, the nature of which is not such as to call into question the integrity of the person concerned and is not such as to be prejudicial to the performance of trade union duties, should not constitute grounds for disqualification from trade union office. It also requests the Government to provide a copy of the Criminal Code in force.

-- Belonging to the respective occupation (section 275). This section also provides that the administrator or trade union leader should belong to the occupation or trade for at least one year. In this regard, the Government indicates that the Labour Code was adopted in full consultation with the social partners and that they had all agreed on the requirements to be a trade union officer. In this respect, the Committee has always considered that the provisions which require all candidates for trade union office to belong to the respective occupation or enterprise are contrary to the guarantees set forth in the Convention. Provisions of this type infringe the organization's right to elect representatives in full freedom by preventing qualified persons, such as full-time union officers or pensioners, from carrying out trade union duties or by depriving unions from the benefits of the experience of certain officers when they are unable to provide enough qualified persons from among their own ranks. Moreover, there is also a real risk of interference by the employer through the dismissal of trade union officers, which deprives them of their trade union office (see General Survey on freedom of association and collective bargaining of 1994, paragraph 117). The Committee again requests the Government to modify its legislation by accepting the candidature of persons who worked previously in the respective occupation or by lifting this requirement for a reasonable period of time for trade union officers.

4. The right of workers' organizations to organize their administration and activities to further and defend the interests of their members (Articles 3 and 10 of the Convention). The Committee had noted that the series of compulsory procedures prior to taking strike action laid down in the Labour Code (sections 191-210) would suggest that the minister was empowered to prohibit any strike. The Committee notes that the Government provides information on five strikes that have occurred since 1993 in the public sector as well as two strikes in the private sector.

The Government adds that it is aware of the necessity to clarify the modalities concerning the exercise of the right to strike and that a draft text exists already on this matter and will be examined by the National Labour Council. The Committee requests the Government to send it a copy of the said text as soon as it will be adopted.

The Committee had also noted that, pursuant to section 213 of the Labour Code, a strike is legal after a vote approved by a simple majority of the employees of the workplace or the enterprise. In this regard, the Government indicates that in practice a vote of the workers concerned is not necessary as long as there exists a consensus to call a strike. On this point, the Committee is of the opinion that it would be advisable for the Government to take measures in order to put its legislation in conformity with its practice .

The Committee hopes that the Government will adopt the necessary measures in light of the above comments to bring its national legislation into fuller conformity with the Convention.

Direct Request (CEACR) - adopted 1998, published 87th ILC session (1999)

The Committee notes with interest the contents of the Constitution of 13 March 1992 and of the Labour Code of July 1993. The Committee, nevertheless, notes that certain provisions of the Labour Code should be amended to bring it into greater conformity with the Convention.

1. Trade union rights for public servants

The Committee notes that section 14 of the Labour Code excludes public servants and magistrates from its scope. The Committee requests the Government to inform it whether legislation exists which grants these categories of workers the right to organize to defend their occupational interests and, if so, to transmit a copy of the texts.

2. Trade union rights for minors

The Committee notes that section 271 of the Labour Code provides that minors under the age of 18 years must obtain explicit authorization from the parent or guardian to join a trade union. In this respect, the Committee has noted that some countries have legislative provisions concerning trade union membership of minors and considered that no distinction based on these grounds is authorized by the Convention (the General Survey of the Committee of Experts on freedom of association and collective bargaining, 1994, paragraph 64). The Committee therefore requests the Government to repeal the provision which lays down the obligation for authorization from the parent or guardian to enable minors to join trade unions of their own choosing without prior authorization.

3. Election of trade union leaders

The Committee notes that the Labour Code lays down certain conditions for holding the position of trade union leader or administrator (section 275).

This section provides that trade union leaders or administrators must not have served a definitive term of imprisonment, of more than six months. The Committee is of the opinion that conviction for an act the nature of which is not such as to call into question the integrity of the person concerned and is not such as to be prejudicial to the performance of trade union duties should not constitute grounds for disqualification from trade union office (see General Survey, op. cit., paragraph 120). The Committee requests the Government to indicate whether decisions have been handed down by the courts in this respect and, if so, to provide copies of these decisions.

Section 275 also provides that the administrator or trade union leader should belong to the occupation or trade for at least one year. In this respect, the Committee recalls that it considers the provisions which require all candidates for trade union office to belong to the respective occupation or enterprise are contrary to the guarantees set forth in the Convention. Provisions of this type infringe the organization's right to elect representatives in full freedom by preventing qualified persons, such as full-time union officers or pensioners, from carrying out trade union duties or by depriving unions from the benefits of the experience of certain officers when they are unable to provide enough qualified persons from among their own ranks. Moreover, there is also a real risk of interference by the employer through the dismissal of trade union officers, which deprives them of their trade union office (see General Survey, op. cit., paragraph 117). The Committee requests the Government to amend its legislation accordingly.

4. The right of workers' organizations to organize their administration and their programme of action to further and defend the interests of their members (Articles 3 and 10 of the Convention)

The Committee notes that it has always held the opinion that strike action is an intrinsic corollary of the right to organize. In light of the fact that the series of compulsory procedures prior to taking strike action laid down in the Labour Code would suggest that the Minister is empowered to prohibit any strike, the Committee has difficulty in understanding how the provisions respecting the right to organize may be applied and would be grateful if the Government would clarify this point.

Furthermore, the Committee notes that pursuant to section 213 of the Labour Code, a strike is legal after a vote approved by a simple majority of the employees of the workplace or the enterprise.

In this regard, the Committee considers that if a member 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.

The Committee requests the Government to include in its next report information on the practical application of the provisions laid down under the sections respecting the right to strike and the settlement of collective disputes and to provide information in respect of the number of strikes and the sectors in which strikes were called for the period covered by the report. It also requests the Government to indicate any measures taken or envisaged to ensure that the requirements for a vote before a strike can be held are reasonable.

5. Request for texts

The Committee notes that section 265 of the Labour Code provides that, in order to establish a trade union, certain formalities laid down in the Labour Code and its Regulations must be respected. The Committee requests the Government to provide a copy of the regulatory texts which apply to the establishment of a trade union where such texts have been adopted.

The Committee notes that it is incumbent on the Minister for Labour to define the methods of application of section 223 of the Labour Code respecting the right to strike. The Committee requests the Government to provide a copy of the methods of application in the event that they have been defined.

The Committee also notes that a Ministerial Ordinance lays down, where necessary, the methods of application of the section respecting collective disputes. The Committee requests the Government to provide a copy of this Ordinance in the event that it has been adopted.

The Committee hopes that the Government will adopt the necessary measures in light of the above comments to bring its national legislation into greater conformity with the Convention. The Committee requests the Government to inform it in its next report of any progress made in respect of the above matters, to provide a copy of any texts which amend the national legislation and any information respecting the practical application of these texts.

Observation (CEACR) - adopted 1998, published 87th ILC session (1999)

The Committee regrets to note that for the fourth year in succession it has not received the first report from the Government. The Committee nevertheless notes the Constitution of 13 March 1992 and the Labour Code of July 1993.

The Committee notes with interest that the Constitution of 1992 grants freedom of association and the right to organize peacefully (section 28) and provides for trade union activity and the right to strike (section 35). The Committee also notes with interest that the Labour Code of 1993 guarantees employers and workers the right to freedom of association, to trade union activity (sections 7 and 264) and the right to strike and to organize a lockout (section 8).

The Committee moreover is addressing a request directly to the Government for clarification on certain points in respect of the trade union rights of public servants and minors, the right of trade union associations to elect their representatives in full freedom and to organize their administration and activities and to formulate their programme without interference from the public authorities.

[The Government is asked to report in detail in 1999.]