Solicitud directa (CEACR) - Adopción: 2004, Publicación: 93ª reunión CIT (2005)

The Committee notes that the Government’s report supplies no information in answer to its previous comments, which addressed the following matters.

Article 2 of the Convention. The Committee notes that section 8 of Act No. 1/015 of 29 November 2002 regulating the exercise of the right to organize and the right to strike in the public service requires public service unions to have at least 50 members at the time of their establishment. Section 24 provides that no union may continue unless it demonstrates that it has more than the minimum membership. The Committee recalls that, although a requirement of minimum membership is not in itself incompatible with the Convention, the number fixed should be reasonable so that the establishment of organizations is not hindered (see General Survey on freedom of association and collective bargaining, 1994, paragraph 81). In the Committee’s view, a statutory minimum of 50 members is excessive. It accordingly requests the Government to take appropriate steps to amend section 8 so as to lower the minimum membership required to establish a union in order to ensure effectively the right of public servants to establish and join organizations of their choosing, in accordance with Article 2 of the Convention.

Article 3. 1. The Committee notes that under section 10, eligibility to leadership in a public service union is subject to a minimum length of service of three years. The Committee recalls that the autonomy of organizations can be effectively guaranteed only if their members have the right to elect their representatives in full freedom. The public authorities should therefore refrain from any intervention likely to hinder the exercise of this right, in particular regarding the eligibility requirements for union leaders. The issue of length of service as a condition for eligibility should therefore be left to the discretion of the organizations and their members. The Committee accordingly requests the Government to abolish length of service as a condition for eligibility to trade union leadership so that public servants may elect their representatives in full freedom, in accordance with Article 3 of the Convention.

2. The Committee notes that section 7 of the Act provides that, in the event of a leadership conflict in a union, the Minister of the Public Service may refer the matter to the Administrative Chamber of the Supreme Court for Settlement. The Committee emphasizes that the settlement of any internal conflict in a union should be left to the discretion of the union members themselves, without any intervention by the public authorities. The Committee therefore considers that, at the very least, referral to the Administrative Chamber of the Supreme Court should be by the union members themselves. It requests the Government to take the necessary steps to amend section 7 so that the settlement of an internal conflict in a union, or at least the initiative for doing so, is left to the discretion of its members, in order to guarantee fully the right of workers’ organizations to organize their administration and activities in full freedom, in accordance with Article 3 of the Convention.

3. The Committee notes that for a strike in the public service to be legal, it must fulfil certain conditions, including: (1) prior notification must be given specifying the length of the strike, in accordance with section 30; (2) it must be called by a group of public servants, whether or not they are unionized, after approval by an absolute majority of the personnel of the public service concerned, in accordance with section 31. In the Committee’s view, to require workers and their organizations by law to specify the length of a strike may limit their right to organize their administration and activities and formulate their programmes in full freedom. As to the approval of the strike by an absolute majority of the personnel in the public service concerned, although as a principle such approval is not incompatible with the Convention, the Committee emphasizes that the ballot method, quorum and majority required should not be such that the exercise of the right to strike becomes very difficult in practice. The requirement of an absolute majority of all the personnel has always been deemed excessive by the Committee; if a member State sees fit to include in its legislation provisions requiring a vote by workers before a strike may be held, it should ensure that account is taken only of the votes cast, and that the quorum and majority are fixed at a reasonable level (see General Survey of 1994, op. cit., paragraph 170). The Committee accordingly requests the Government to take the necessary measures to amend sections 30 and 31 in order to ensure that there is no obligation to specify the length of the strike in the notification, and that prior approval of the strike requires only a simple majority of the votes cast.

4. The Committee notes that section 39 prohibits sympathy strikes. The Committee considers that a general prohibition of sympathy strikes for public servants who do not exercise authority in the name of the State and therefore have the right to strike, could lead to abuse. The workers concerned should be able to take such action provided that the initial strike they are supporting is itself lawful (see General Survey, op. cit., paragraph 168). The Committee therefore requests the Government to take the necessary steps to confine section 39 to public servants exercising authority in the name of the State.

5. The Committee notes that sections 32-35 of the Act deal with collective disputes and the procedures to be followed. It notes that, during a strike, negotiations have to be continued between the parties or under the direction of a certified mediator chosen by agreement between the parties. In the event of a disagreement as to the mediator or of failure of the mediation, an arbitration board shall be appointed by the Minister of the Public Service at the request of one of the parties. Within four clear days of its appointment, the arbitration board shall issue an award, which must be notified at once to the parties. Section 35 provides that, in the event of conciliation, the award shall be immediately enforceable. Where there is no conciliation, the dispute shall be referred to the administrative court by the losing party. The Committee recalls that public servants not exercising authority in the name of the State should enjoy the right to strike and that this right may be restricted or prohibited only in the following two cases: (1) where the public servants are engaged in essential services in the strict sense of the term, that is, services the interruption of which would endanger the life, personal safety or health of the whole or part of the population; and (2) in the event of an acute national crisis. The Committee accordingly requests the Government to indicate the effect of the intervention by the court and to state whether it gives rise to a binding decision bringing an end to the strike for public servants not considered to exercise authority in the name of the State or working in essential services.

Article 5. The Committee notes that, under section 20 of the Act, trade unions may establish central organizations, federations and confederations. Pursuant to section 21, these organizations are regulated by the provisions of Chapter I, which addresses the establishment of first-level organizations. The Committee notes that the upshot of section 21 is that first-level organizations can join only higher-level organizations of public servants, and not organizations representing other workers. The Committee points out that although first-level organizations of public servants may be restricted to this category of workers, such organizations should nonetheless be free to join federations and confederations of their choosing, including those which also group together organizations from the private sector (see General Survey, op. cit., paragraph 193). The Committee requests the Government to take the necessary measures to amend section 21 so as to guarantee the right of unions of public servants to establish and join federations and confederations of their choosing, including those which group together organizations from the private sector, in accordance with Article 5 of the Convention.

The Committee requests the Government to keep it informed of all the matters raised above in its next report.