Observación (CEACR) - Adopción: 1991, Publicación: 78ª reunión CIT (1991)

The Committee has noted the discussion on this case which took place in the Conference Committee in 1989. It notes that a government representative assured the Committee that the Government endeavoured to give every guarantee to workers in every sector in the spirit of securing social security and well-being for everyone. However, a number of temporary and exceptional provisions had been implemented, in the light of the very specific situation brought about by the war in order to secure the pursuance of work on certain projects, without which there would have been a health risk to the population. The situation now having evolved, the Government was reconsidering some of these provisions in the light of the economic and social development of the country.

The Committee notes that in its report received on 14 September 1990, the Government indicates that there has been no change concerning the application of the Convention. In these circumstances, the Committee is bound to raise again the following points:

Article 1(c) and (d) of the Convention. 1. The Committee, in earlier comments, referred to section 364 of the Penal Code, under which a penalty of imprisonment (involving an obligation to work) may be imposed on any official and any person in charge of a public service who leaves his work, even after having resigned, or who abstains from performing his duty or work if he thereby might endanger the life, health or personal safety of the population, cause riots or unrest among the population or paralyse a public service. The Committee noted from the Government's report dated 30 December 1986 that the same persons are to be punished with heavier prison terms under section 241 of the draft new Penal Code.

The Committee also noted the Government's reference, in its report dated 15 October 1987, to section 36, paragraph III of the Labour Code (Law No. 71 of 1987), under which workers may terminate their labour contract by giving notice. The Committee further noted that under Decision No. 150 of 1987 of the Revolutionary Command Council, referred to in the new Labour Code, all workers of state services and the socialist sector are to be public officials and thus excluded from the scope of the new Labour Code, whose application is thus limited to the private, co-operative and mixed sectors. Moreover, section 364 of the Penal Code and section 241 of the draft new Penal Code apply even to persons having formally resigned.

The Committee referred the Government to paragraphs 110 and 114 to 116 of the 1979 General Survey on the Abolition of Forced Labour and indicated that the Convention does not protect persons responsible for breaches of labour discipline which are committed either in the exercise of functions that are essential to safety or in circumstances where life and health are in danger. Since the scope of the national provisions is not limited to such circumstances, but includes, inter alia, cases falling within Article 1(c), the Committee requested the Government to re-examine the provisions in the light of the Convention. Referring also to Convention No. 29, under which workers must remain free to terminate their employment by reasonable notice, the Committee asked the Government to supply information on any amendment made or contemplated in section 241 of the draft Penal Code, as well as on application in practice of section 364 of the Penal Code.

In the absence of an indication that these provisions have undergone revision, the Committee again requests the Government to re-examine these provisions in the light of Conventions Nos. 29 and 105 and to supply information on any amendment made or contemplated, as well as on their application in practice, including in particular, copies of any court decisions defining or illustrating their scope.

Article 1(d). 2. In its earlier comments, the Committee pointed out that under section 132 of the Labour Code all labour disputes that are not settled by mutual agreement must be submitted to the Supreme Labour Court, whose judgement was final, without appeal and binding on the parties. The Committee noted that under section 132 of the new Labour Code (Law No. 71 of 1987) unresolved trade disputes are referred to the Labour Dispute Chamber of the Court of Cassation, whose judgement is final according to section 133. Section 136(I) of the new Code provides (as did section 134 of the former Code) that if an employer does not give effect to the decision of the Chamber, the workers have the right to strike and sanctions may be imposed against the employer.

The Committee noted that except for the strike action allowed under section 136, the right to strike does not appear to be recognised. The Committee asks the Government to indicate the penalties applicable to workers who go on strike in disregard of a final judgement under section 133 of the Labour Code, that is, otherwise than in the case envisaged in section 136.

3. In its earlier comments, the Committee pointed out that section 197, subsection 4, read together with section 216 of the Penal Code provides for imprisonment (involving the obligation to work) for a fixed period or for life as a punishment for stopping activities of public services or bodies, public utility associations, state industrial installations or public establishments of importance to the national economy. The Government had stated in earlier reports that officials of the State and of government establishments have no right to strike, that section 197, subsection 4, is applied without qualification and makes no distinction between the essential and the non-essential services provided by the undertakings, and that the penalty of imprisonment for disrupting work is a threat intended to induce persons to remain at work who would otherwise leave it, thereby causing a disruption in the activities of the services in question.

The Committee had pointed out that under the above-mentioned provisions of the Penal Code, penalties involving the imposition of compulsory prison work can be inflicted for stoppages of work in a wide range of activities and industrial installations. The Committee had asked the Government to indicate the measures taken or under consideration to ensure the observance of the Convention in this regard, for example by restricting the application of these provisions to officials whose functions include the exercise of public authority and to employees of essential services whose interruption would endanger the life, personal safety or health of the whole or part of the population.

The Committee noted the Government's statement in its report dated 15 October 1987 that article 19 of Law No. 104 of 1981 regarding the State Organisation for Social Reform provides that work is a part of the implementation of the punishment and not a punishment in itself. Further, the Government indicated that sections 87, 88 and 89 of the Penal Code provide for imprisonment, but do not contemplate the imposition of forced labour within the penal establishment. The Committee observed that under sections 87 and 88 of the Penal Code, concerning imprisonment and penal servitude, persons sentenced are to be assigned to specified work. Referring to the explanations provided in paragraphs 102 to 109 of its 1979 General Survey on the Abolition of Forced Labour, the Committee recalled that the Convention prohibits the use of "any form" of compulsory labour, including compulsory prison labour, in the five cases specified in the Convention. Thus, the imposition of sanctions involving compulsory prison labour of any kind on persons sentenced for breaches of labour discipline, or for participation in a strike, is covered by Article 1(c) and (d) of the Convention.

The Committee again requests the Government to re-examine section 197, subsection 4, and section 216, read together with section 87, of the Penal Code and to indicate the measures taken or contemplated to ensure the observance of the Convention.

4. In the same connection the Committee previously noted that section 152 of the draft new Penal Code corresponds to section 197, paragraph 4 of the Penal Code; the Government stated that section 152 of the draft new Penal Code provides for a penalty of imprisonment for life to be imposed on anybody who voluntarily destroys, deteriorates or damages public property or a socialist sector enterprise, with the aim of overthrowing the socialist republic system and that this provision applies not only to officials or persons in charge of a public service but likewise to any person who commits one of those acts. The Committee requests again that the Government supply a copy of the precise wording of the provision referred to as well as any indications enabling it to ascertain whether the scope of the draft provision shall be limited to damages caused by violence or misappropriation of public funds, or whether this provision could also apply to a strike; in the latter case the Committee request the Government to indicate any measure taken or contemplated to ensure the observance of the Convention.