Observación (CEACR) - Adopción: 2001, Publicación: 90ª reunión CIT (2002)

The Committee notes the Government’s report. It recalls that its previous comments related to the following matters.

1. Articles 2, 5 and 6 of the Convention. In its previous comments, the Committee asked the Government to amend sections 7, 13 and 52 of Act No. 35 of 1976, as well as sections 14, 16, 17 and 41 of Act No. 12 of 1995 to ensure that all workers who so wish have the right to establish occupational organizations outside the existing trade union structure. The Committee notes the information contained in the Government’s report to the effect that section 7 above provides that "the trade union structure is established in the form of a pyramid based on trade union unity". In its report, the Government emphasizes that trade union unity emanates from the will of the workers and is not imposed upon them.

With regard to section 13 of Act No. 35 of 1976, the Government states in its report that this provision establishes a classification of occupational groups for industries which are similar or interlinked, or which have a common product, on condition that each group of similar categories is entitled to establish a single general trade union at the level of the Republic. It appears that the workers have the right to join organizations enumerated in the legislation and to leave them, as indicated by the Government, but they do not have the right to establish or join an organization outside the established trade union structure. The Committee recalls in this respect the importance of the right of workers to establish organizations of their own choosing, and that this right is breached where the law maintains a trade union monopoly.

With regard to the right, referred to by the Government in an earlier report, of the General Confederation of Trade Unions to establish trade union organizations, the Committee recalled the primary importance that it attaches to the right of workers to establish and join organizations within the meaning of Article 2. Furthermore, the preference of the trade union movement for a unified system is not sufficient to justify a monopoly established by law. The Committee reiterates that, even where at some point all workers have preferred to unify the trade union movement, they should still 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, paragraph 96). The Committee therefore once again urges the Government to ensure that sections 7, 13 and 52 of Act No. 35 of 1976, as well as sections 14, 16, 17 and 41 of Act No. 12 of 1995, are amended to secure for all workers the right, should they so wish, to establish occupational organizations at all levels outside the existing trade union structure and it requests the Government to indicate in its next report the measures which have been taken or are envisaged in this respect.

2. Article 3. The Committee recalls that its previous comments concerned sections 41 and 42 of Act No. 12 of 1995. It also recalls that the procedures for the nomination and election to trade union office should be fixed by the rules of the organization concerned, and not by law or by the single trade union central organization designated by the law. The Committee notes the information provided by the Government in its report to the effect that the General Confederation of Trade Unions confines itself to setting the dates of elections and the procedures for the selection of candidates, which is a purely organizational function and does not concern the authority of the confederation or the supervision of trade union organizations. The Government adds that the selection procedures for candidates and elections for trade union office must be determined by the specific rules of the trade union organizations and not by law or by a single trade union central organization with the support of the law. The Committee nevertheless recalls that section 41 above provides that the date and procedure for nomination and election to the executive boards of trade union organizations shall be determined by a decision of the competent minister, with the approval of the General Confederation of Trade Unions. Section 42 sets out the manner of filling vacancies and also permits the General Confederation to determine the conditions and modalities of the dissolution of such boards in the event of a reduction in the number of members. The Committee expresses the firm hope that the Government will make the necessary amendments to ensure that each workers’ organization is able to elect its representatives in full freedom in accordance with Article 3 of the Convention.

With reference to sections 62 and 65, the Committee notes that, according to the Government’s statement, financial control is confined to general organizations and to the General Confederation of Trade Unions. The Committee recalls that it is contrary to Article 3 to empower the single central trade union organization designated by the law to exercise financial control. It once again requests the Government to take the necessary measures to ensure that section 62, which provides that the Confederation shall determine the financial rules of trade unions and obliges lower level unions to pay a certain percentage of their income to higher level organizations, and section 65 of Act No. 12 of 1995, which provides that the confederation shall control all trade union activities, are amended so that workers’ organizations have the right to organize their administration, including their financial activities, without interference, in accordance with Article 3.

3. Articles 3 and 10. The Committee notes that the information provided in the Government’s report is the same as that supplied in its previous report. The Committee is therefore bound to recall its concerns regarding the following provisions:

(i)  sections 93 to 106 of the Labour Code, as amended by Act No. 137 of 1981, providing for compulsory arbitration at the request of one of the parties in services other than those that are essential in the strict sense of the term;

(ii)  section 70(2)(b) of Act No. 35 of 1976 authorizing the Public Prosecutor to ask the criminal courts to remove from office the executive committee of a trade union that has provoked work stoppages or absenteeism in a public service; and

(iii)  section 14(i) of Act No. 12 of 1995 requiring the General Confederation to approve the organization of strike action.

With regard to sections 93 to 106 of the Labour Code, the Committee noted in its previous comment that the Government had referred to a new draft Labour Code establishing a system of mediation in the event of labour disputes, which may then lead to arbitration at the request of both parties. A new tripartite arbitration board was also to be created by the draft text. The Committee requests the Government to provide copies of the provisions of the new draft Labour Code mentioned by the Government and to report on the progress achieved in the adoption of the above text.

In relation to section 70(2)(b) of Act No. 35 of 1976, which provides for the dissolution of the executive committee of a trade union that has provoked work stoppages or absenteeism in a public service, the Government reiterates its statement that this section is limited to enterprises providing general services, public facilities or services responding to the needs of the population. The Committee recalls that it has always considered that any restriction or limitation on the right to strike should be limited to public servants exercising authority in the name of the State or to essential services the interruption of which would endanger the life, personal safety or health of the whole or part of the population (see 1994 General Survey, paragraphs 158 and 159), and it considers that the scope of the enterprises covered by section 70(2)(b) goes beyond this definition. However, it recalls that, in order to avoid damages which are irreversible or out of all proportion to the occupational interests of the parties to the dispute, as well as damages to third parties, namely the users or consumers who suffer the economic effects of collective disputes, the authorities could establish a system of minimum service in other services which are of public utility rather than imposing an outright ban on strikes (see 1994 General Survey, paragraph 160). The Committee therefore requests the Government to indicate the measures taken to amend section 70(2)(b) taking into account the above principles.

Finally, with regard to section 14(i) of Act No. 12 of 1995, the Committee notes the information provided by the Government in its report to the effect that the General Confederation is empowered to approve the organization of a strike by workers. The Government adds that this prerogative supports and reinforces the objective of the trade union movement. In this respect, the Committee recalls that the requirement of the approval of the General Confederation to organize a strike is not in conformity with the Convention, as it denies first level organizations the right to organize their activities and to formulate their programmes independently, including the decision on whether to call a strike. The Committee once again urges the Government to amend the legislation in order to bring it into conformity with Article 3 of the Convention, so that first level organizations have the right to organize all their activities, whatever they may be, without the imposition by law of the requirement of prior authorization by the General Confederation.

The Committee is also addressing a request directly to the Government.