Observación (CEACR) - Adopción: 2002, Publicación: 91ª reunión CIT (2003)

The Committee notes the Government’s report. The Committee points out once again that certain provisions of the Labour Code of 1996 (Act No. 185 of 30 October 1996), of the 1997 Regulations on Occupational Associations (Decree No. 55-97), and of the Civil Service and Administrative Careers Act of 1990 (Act No. 70, March 1990) have been the subject of the following comments:

(1)  the suspension, due to failure to adopt implementing regulations, of the Civil Service and Administrative Careers Act of 1990, section 43(8) which recognizes the right to organize, to strike and to collective bargaining of public servants;

(2)  restrictions on the access of foreigners to trade union office (article 21 of the 1997 Regulations on Occupational Associations);

(3)  restrictions on the functions of federations and confederations (article 53 of the 1997 Regulations);

(4)  the possibility of a dispute being submitted to compulsory arbitration 30 days after a strike has been called (sections 389 and 390 of the Labour Code); and

(5)  grounds on which a worker may lose trade union membership, which are left to the discretion of the public authority (article 32 of the 1997 Regulations).

With regard to the Civil Service and Administrative Careers Act of 1990, which, pursuant to the same Act has been suspended until the President of the Republic or the Ministry of Labour issues its implementing regulations, the Committee regrets to note that, although the Government states that there is full freedom of association and, in practice, there is nothing in the legislation to obstruct the exercise by public servants of the right to organize, and despite the years that have elapsed, the Government has not reported the adoption of any implementing regulations or the drafting of any such text. The Committee requests the Government to recognize by law and in practice the right of public servants to establish organizations to further and defend their interests, in accordance with Article 2 of the Convention, and to keep it informed of any legislation adopted to that end.

With regard to the restrictions on the access of foreign nationals to trade union office envisaged in article 21 of the Regulations on Occupational Associations, the Committee notes that, according to the Government, foreigners may avail themselves of the naturalization procedures. The Committee nonetheless points out once again that provisions on nationality which are too strict might run the risk of some workers being deprived of the right to choose their representatives freely, for example, migrant workers working in sectors where they account for a considerable proportion of the membership. According to Article 3 of the Convention, workers’ organizations must have the right to elect their representatives in full freedom. Furthermore national legislation ought to allow foreign workers to take up trade union office at least after a reasonable period of residence in the host country (see General Survey on freedom of association and collective bargaining, 1994, paragraph 118).

As to the restrictions on the right to strike of federations and confederations, the Committee observes once again that in accordance with article 53 of the 1997 Regulations on occupational associations federations and confederations, shall only intervene in labour disputes to provide advice and the moral or economic support needed by the workers concerned. The Committee again reminds the Government that, pursuant to Articles 3, 5 and 6 of the Convention, workers’ organizations, and the federations and confederations which they establish or join, shall have the right to organize their activities and to formulate their programmes.

With regard to the maintenance of compulsory arbitration in sections 389 and 390 of the Labour Code where 30 days have elapsed from the calling of the strike, the Committee notes that the Government repeats its previous statement to the effect that if a dispute is referred to compulsory arbitration after this time period has elapsed, the arbitration award should be binding only if all the parties agree to it and only in cases in which the strike has been called in an essential service in the strict sense of the term, or in the context of an acute national crisis.

The Committee hopes that the Government will pursue its efforts to bring the provisions of sections 389 and 390 of their Labour Code of 1996, and articles 21, 32 and 53 of the 1997 Regulations on Occupational Associations into conformity with the Convention. It requests the Government to provide information in its next report on progress made in this regard.