Solicitud directa (CEACR) - Adopción: 2000, Publicación: 89ª reunión CIT (2001)

The Committee notes the information contained in the Government’s detailed first report. It would appreciate receiving a copy of the National Collective Agreement mentioned in the Government’s report, as well as further information on the following points.

Article 2, paragraph 2(a), in conjunction with Article 2, paragraph 3, of the Convention.  The Committee notes that under section 18 of the Labour Code there are two possible types of contracts - contracts for an indeterminate period and fixed-term contracts. Fixed-term contracts may last for up to five years, but are to be used only when the work relationship cannot be established for an indeterminate period, taking into account the nature of future work or the interests of the workers. The Committee recalls that fixed-term contracts may be excluded under the Convention, but are intended only to allow firms to hire workers for defined tasks for a relatively short period of time. It also points out that the uncertain future needs of the enterprise are taken into account in Article 4, which allows firms to terminate employment for reasons related to the operational needs of the enterprise. It would appreciate receiving further information on the percentage of the workforce engaged on fixed-term contracts and what safeguards exist to protect workers against abuse of fixed-term contracts.

Articles 4 and 5.  The Committee notes that under section 143(1) of the Labour Code a worker cannot be dismissed except by a decision of the administration that hired him or her, and only for the reasons listed in legislation. It notes, however, that under section 263, other laws may be enacted concerning valid bases for dismissal for certain categories of workers, and under section 33 other valid bases may be determined by agreement. It would appreciate receiving further information in regard to the bases which have been established by law or by agreement for dismissal of a worker.

The Committee also notes that section 42 of the Labour Code permits the dismissal of a worker on the request of the administrative court, if he or she has violated or does not respect the law, although the worker may appeal. Please forward information on how often, and under what circumstances, section 42 is used.

Article 7.  The Committee notes that under section 40 of the Labour Code in case of individual dismissal for reasons related to the worker, the employer must first consult the union. If the worker to be dismissed is not a member of a union, the employer must consult the "superior hierarchical organization". Please indicate whether the union or superior hierarchical organization would examine the allegations before agreeing to the termination.

Article 9, paragraph 2(a).  The Committee notes that there is no indication in the Government’s report or the Labour Code as to who has to discharge the burden of proof in an appeal against dismissal. The Committee recalls that under paragraph 2 of Article 9, the burden must be either shared or carried by the employer, but should not be borne alone by the worker. Please provide further information on the legislative or other provisions in regard to the burden of proof in an appeal against dismissal.

Article 10.  The Committee notes that neither the Government’s report nor the Labour Code specifies the remedies to be awarded in case of unjustified dismissal. Please provide information on what remedies are available.

Article 11.  Section 45/2 of the Labour Code states that a worker is entitled to a minimum of two months’ notice in case of lay-off. In case of mass redundancies, the employer is required to notify the union three months in advance. However, there is no indication of the right to notice in the case of termination related to an individual. The Committee recalls that under this Article of the Convention a reasonable period of notice is required in all cases of termination, including ones related to the capacity or conduct of the individual worker. The only exception is in cases of serious misconduct, the nature of which would make it unreasonable to require an employer to continue the employment relation during the period of notice. Please provide further information on the period of notice generally required in cases of termination of employment related to the capacity or conduct of the individual worker.

Article 12.  The Committee notes that section 45/3 of the Labour Code specifies the indemnities due to a worker in case of termination related to the needs of the enterprise, and section 41 specifies the indemnities due to a worker in case of termination on account of military service, or another worker returning to fill the post, or inability to transfer the worker to another post. Furthermore, under section 45/4 all unemployed persons, defined as those capable of and willing to work, are entitled to unemployment assistance or government-sponsored work, provided they are unemployed "for reasons independent of themselves", and have no position or income. Please clarify whether persons who are dismissed for reasons related to their capacity or conduct also qualify for unemployment assistance.

Article 13, paragraph 1(b).  Section 45/2 of the Labour Code states that in case of mass redundancies, the employer must give the union a minimum of three months’ notice. However, it does not require the employer to provide an opportunity for consultation on the measures to be taken to avert or minimize the number of terminations. The Committee recalls that under Article 13, paragraph 1(b), the employer shall, in accordance with national law and practice, give the workers’ representatives concerned, as early as possible, an opportunity for consultation on measures to be taken to avert or to minimize the terminations and to mitigate the adverse effects of any terminations on the workers concerned. Please provide further information on how this provision is given effect.

Article 13, paragraph 2.  Section 45/2 of the Labour Code states that the requisite procedures apply in case of mass redundancies. Please specify what is regarded as mass redundancy for the purpose of paragraph 1 of Article 13, in particular the minimum number or percentage of the workforce affected for redundancy to be considered a mass redundancy.

Part V of the report form.  Please provide further information on the manner in which the Convention is applied in practice, including statistics on the number of appeals against termination, the outcome of such appeals, and any remedies awarded.