Solicitud directa (CEACR) - Adopción: 1990, Publicación: 77ª reunión CIT (1990)

1. In earlier comments, the Committee has referred to the conditions laid down by Legislative Decree No. 150 of 17 August 1981 governing entitlement to unemployment benefit (sections 43, 44(d), 46, 62 and 63(e)).

Under the above Legislative Decree the right to this benefit for workers who have lost their employment for reasons beyond their own control is made conditional both on the payment of contributions for 52 weeks or 12 months during the two years preceeding the date of loss of employment (section 43(b)), and on the inscription of the unemployed persons on the register of unemployed that must be kept by every insurance institution (section 43(c)) and also on the register of unemployed persons that must be kept by every municipality with a view to their assignment to relief works for the community (section 43(d)). Under section 44(d) the right to unemployment benefit is lost if the unemployed person refuses to carry out the relief work for the community provided for by section 43(d).

In its report, the Government states that community assistance work is assigned to those on the register of the unemployed provided that they accept the work voluntarily.

The Committee notes, nevertheless, that the current wording of sections 43(d) and 44(d) does not set out the voluntary nature of acceptance and, furthermore, refusal to perform such work results in loss of entitlement to the benefit, which is equivalent to a penalty in the sense of the Convention (paragraph 21 of the 1979 General Survey on the Abolition of Forced Labour).

The Committee requests the Government to take the necessary measures to establish in legislation the voluntary nature of the work set out in sections 43(d) and 44(d) of Legislative Decree No. 150 of 1981 by specifying that refusal to perform assistance work will not result in the loss of entitlement to the benefit and it requests it to supply information on the progress achieved to this effect.

2. Freedom of workers in the service of the State to leave their employment. In previous comments, the Committee requested the Government to provide information on the provisions governing the situation of public servants not covered by the Administrative Law (Legislative Decree No. 338 of 1960), including career members of the armed forces.

The Committee notes the adoption of the new Administrative Law (Act No. 18834 of 15 September 1989) which repeals the previous Administrative Law (Legislative Decree 338 of 1960).

The Committee notes that by virtue of section 1 of the Administrative Law that is in practice, the exceptions laid down in section 18(2) of Act No. 18575 are excluded from its scope: these include the Audit Office of the Republic, the Central Bank, the armed forces, the forces of order and public safety, municipalities and public enterprises set up by law, which will be governed by their respective legislation.

The Committee noted the amended, co-ordinated and systemised text of Legislative Decree No. 1 of 1968, the "Conditions of Service of Members of the Armed Forces", issued by Supreme Decree No. 148 of the Ministry of National Defence on 1 December 1986, and in particular sections 166 and 167, which lay down the conditions for the retirement of officers and civilian employees.

The Committee observed that the only possibility of voluntary termination of service envisaged in the Conditions of Service is the possibility for officers other than superior officers and for members of the ranks and seafarers to leave voluntarily after a period of service of 30 years which count for retirement (sections 166(b) and 169(g)).

The Committee also referred to section 174 of the Conditions of Service, under which renunciation of employment is to be considered as temporary retirement without pension (persons who have retired temporarily can be called back to serve if the authority considers this necessary, section 156). Furthermore, acceptance of retirement, when granted, only comes into effect from the date on which the order or decision accepting retirement is issued, unless, at the request of the person concerned, the authority indicates that it has been determined otherwise (section 174(2)).

The Committee also noted that the Supplementary Regulations establish the reasons for which resignation may be rejected and the maximum period for which such a situation may be maintained (section 174(3)).

The Committee notes the Government's indications that the retirement of military personnel can be deferred on grounds of acquired personal privileges, security and good service. The Government adds that persons entering the armed forces voluntarily accept the regulations that make it possible to defer retirement.

The Committee wishes to refer to paragraph 72 of the 1979 General Survey on the Abolition of Forced Labour, in which it points out that the provisions relating to compulsory military service do not apply to career military service and may not be invoked to deprive persons who have voluntarily entered into an engagement of the right to leave the service in peacetime within a reasonable period, either at specified intervals or through previous notice.

The Committee requests the Government to examine the provisions of the Conditions of Service of Members of the Armed Forces relating to termination of their career in the light of the Convention, to ensure that workers in the service of the State are free to leave their employment at their own initiative, and it requests it to indicate in its next report the measures that have been taken or are envisaged to this effect.

The Committee requests the Government to supply a copy of the Supplementary Regulations referred to in section 174(3) of the Conditions of Service.

3. In its previous direct request, the Committee referred to section 1(1) of Act No. 11625 of 1954 respecting anti-social situations and security measures.

The Committee notes, from the Government's indications in its report, that the coming into force of the above provision was subject to the adoption of a Decree (section 67) which was not issued, and that the provision therefore never came into force.

The Committee notes that by virtue of section 67 above, the coming into force of section 61 of the Act to repeal sections 305 and 306 of the Penal Code respecting vagrants and beggars is also subject to the adoption of a decree and that these sections therefore remain in force.

The Committee refers to section 305 of the Penal Code by virtue of which "all persons who have no fixed address, no means of subsistence and who habitually exercise no legal profession, job or occupation and who have the capacity to work, are vagrants".

By virtue of section 306, vagrants are punishable by minimum sentences of minor detention and are subject to supervision by the authorities.

The Committee requests the Government to examine sections 305 and 306 of the Penal Code in the light of the Convention with a view to ensuring that only persons who disturb the public order by acts other than habitual abstention from work are liable to penalties.

4. The Committee notes the information supplied by the Government concerning the Military Labour Corps.