Observación (CEACR) - Adopción: 1998, Publicación: 87ª reunión CIT (1999)

The Committee notes the new Labour Code (Act No. 5 of 1995).

Referring to its previous observations, the Committee notes with satisfaction that a certain number of legislative provisions or regulations which had been the subject of its comments are no longer included in the 1995 Labour Code, thereby improving the application of Articles 2, 3 and 4 of the Convention.

In its previous observations, the Committee had requested the Government to amend or repeal the following provisions:

-- the prior authorization for the establishment of a trade union or a federation (sections 154 and 158 of the Labour Code of 1970; section 57 of the Regulations concerning the model statutes of the General Trade Union of Manual and Non-Manual Employees);

-- the high number of workers required to form trade unions (50 for a trade union or trade union committee and 100 for a general trade union) (sections 21, 137, 138 and 139 of the Labour Code and section 51 of its Regulations).

The Committee had considered these provisions to be contrary to Article 2 of the Convention. It notes with interest that the provisions of the former Labour Code concerning prior authorization for the establishment of a trade union or a federation and the provisions which required an excessively high number of workers to form a trade union have not been included in the new Labour Code of 1995.

The Committee had also requested the Government, in its previous observations, to amend or repeal the following provisions:

-- the powers of the public authorities to interfere in the financial management of trade unions (sections 13(2) and (4), and 133(13) and (14) of the Labour Code of 1970), trade union activities (sections 145(2) and 34 of its Regulations) and the drawing up of statutes (sections 150 of the Code and 162 of its Regulations);

-- the prohibition on political activities by trade unions (section 132 of the Code);

-- the denial of the right of foreign workers to hold trade union office (section 142(3) of the Code).

The Committee considered such provisions were contrary to Article 3 of the Convention. It notes with interest that the provisions in question have not been included in the new Labour Code.

The Committee also requested the repeal or amendment of the provision which allowed the administrative dissolution of a trade union (section 157 of the Labour Code of 1970), which is contrary to Article 4 of the Convention. It notes with interest that the provision in question has not been included in the new Code. Moreover, the Committee notes that section 162 of the Code repeals the provisions of the Labour Code of 1970, as well as any text or provision which is contrary to the provisions of the Code.

The Committee requests the Government to supply copies of the regulations of the Labour Code currently in force to enable it to examine their conformity with the Convention.

In addition, the Committee had also requested the Government to amend or repeal the provisions on trade union monopoly (sections 129, 138, 139 of the Labour Code and sections 5(h), 41, 42, 43 and 47(a) of its Regulations). The Committee notes, in this respect, that the majority of provisions on which it had previously commented have not been included in the new Labour Code, but that the Labour Code of 1995 continues to refer by name to the General Federation of Trade Unions in certain provisions and, in particular, in sections 2, 131(c) and 145(2). The Committee considers that such provisions could result indirectly in making it impossible to establish a second federation to represent workers' interests.

In this respect, the Committee wishes to recall that if the Convention pronounces neither in favour of a system of trade union diversity nor of a single trade union system, it implies that pluralism should remain possible in all cases and that workers should remain free to choose to set up unions outside the established structures, should they so wish. (See General Survey on freedom of association and collective bargaining, 1994, paragraphs 92 and 96.) Therefore, the Committee requests the Government to withdraw the reference by name to the General Federation of Trade Unions and, if it so wishes, to replace it by the concept of the most representative federations.

The Committee also requested the Government to amend or repeal restrictions on industrial action by trade unions (section 16 of Ministerial Order No. 42 of 1975 concerning procedures for the settlement of labour disputes).

It recalled that these provisions are contrary to the right of workers and their organizations to organize their activities and to formulate their programme of action for furthering and defending their economic, social and professional interests, including the right to strike, without interference from the public authorities, in accordance with the principles set forth in Articles 3 and 10 of the Convention.

The Committee notes with interest that the current Labour Code recognizes the right to strike and provides for a system for the settlement of disputes (sections 128 -143) which must be complied with for these rights to come into force. Legitimate strike action is governed by sections 144-150 of the Code.

However, the Committee notes that the Code sets outs conditions which are too strict for a strike to be legitimate, namely that it can only be called following the completion of the procedures for the settlement of disputes, and under sections 130, 137 and 139 of the Code the dispute can be referred to compulsory arbitration at the request of only one of the parties (employer or worker) and the exercise of the right to strike can be suspended for 85 days. It must be approved by 25 per cent of workers in a general assembly attended by a minimum of 60 per cent of the total number of workers in the service of the employer concerned. The strike call must have been submitted to the general trade union concerned, it must have been signed by two-thirds of its members and the trade union committee must have obtained written approval from the General Federation of Trade Unions. The strike must concern more than two-thirds of the workforce of the employer concerned and three weeks' notice of intention to strike must have been given (section 145). When the strike takes place, it must comply with the procedure laid down in the Labour Code (section 146). Legitimate strikes may not incur sanctions against workers or dismissals (section 148(2)). The Committee considers that the fact that strike action must be approved by the General Federation of Trade Unions, by its very nature restricts the right of trade union organizations to organize their activities and to further and defend workers' interests.

The Committee requests the Government to amend the provisions concerning arbitration which considerably restrict the exercise of the right to strike and to repeal the provisions concerning the prior approval by the General Federation of Trade Unions in order to call a strike in order to bring its legislation into fuller conformity with the principles of freedom of association.

The Committee also requests the Government to indicate whether section 162 of the Code repeals section 16 of Ministerial Order No. 42 of 1975.

Finally, the Committee notes that foreign and casual workers, domestic workers and similar categories and certain agricultural workers are only subject to the application of the Code under certain conditions (section 3). The Committee requests the Government to indicate whether and in accordance with which provision it recognizes these workers' right to organize for the defence of their interests.

The Committee had, moreover, been informed of the drawing up of a draft Bill on trade unions. It requests the Government to supply the text as soon as it is adopted, as well as the text of any regulations to the new Labour Code and any other applicable texts, in particular, the Act respecting associations and cooperatives and the Trade Union Act mentioned in the 1991 Act respecting the public service.