Observación (CEACR) - Adopción: 2005, Publicación: 95ª reunión CIT (2006)

The Committee notes the information in the Government’s report. It also notes the comments of the International Confederation of Free Trade Unions (ICFTU) dated 31 August 2005, to which the Government responded in a communication dated 27 October 2005.

1. Article 2 of the Convention. Right to establish trade unions without prior authorization. In its last observation, the Committee requested the Government to indicate the measures taken to amend the provisions of the Labour Code requiring the filing of trade union by-laws in order to obtain legal personality from the authorities, including the Ministry of the Interior, under penalty of a fine. The Committee likewise requested the Government to provide information on the practical effect given to these provisions, indicating in particular whether penalties had been imposed in recent years. The Committee notes that, according to the Government, the Committee’s comments are being studied in the process to amend the labour legislation and that no penalties have been imposed in connection with the above provision. The Committee requests the Government to provide information on developments in this respect in its next report.

2.  Article 2. Right of workers without distinction whatsoever to establish trade unions. The Committee requested the Government to amend Ordinance No. 38 PR/MTPTPT of 18 June 1968, which affords seafarers neither the right to organize nor the right to strike, and provides for sentences of imprisonment for breaches of labour discipline, in order to grant seafarers the guarantees provided by the Convention. The Committee notes that section 78 of Act No. 98-015 of 15 May 1998 issuing the general conditions of service of seafarers, establishes the right to organize of all seafarers. The Committee also notes that a new Merchant Marine Code is still under preparation.

3. Article 3. Right of workers’ organizations to organize their administration and activities and to formulate their programmes. The Committee asked the Government to abolish the requirement to notify to the authorities the duration of a strike laid down in Act No. 2001-09 of 21 June 2002 on exercise of the right to strike. The Committee notes that, according to the Government, the provisions on the duration of a strike do not restrict the right to strike given that article 8 of the Act on the exercise of the right to strike indicates that a strike can be resumed.

4. The Committee notes the comments by the ICFTU to the effect that the law allows the Government to requisition public servants in a strike and to declare strikes unlawful for specific reasons such as threat to the peace and public order. According to the ICFTU, some Government departments prevent public employees from taking strike action by taking advantage of the leeway allowed by the law to draw up long lists of employees liable for requisitioning. The Committee notes that, according to the Government, the requisitions take place in conformity with the provisions of the Act on the exercise of the right to strike and therefore, are not aimed at preventing strikes. The Committee recalls that the requisition of workers involves the possibility of abuse as a means to settle industrial disputes and points out that such measures are undesirable except where essential services have to be maintained in particularly serious circumstances (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 163). In addition, the Committee recalls that requisitioning may be used to ensure the operation of essential services in the strict sense of the term and for public servants exercising authority in the name of the State.

5. The Committee trusts that these comments on points it has made previously will be taken fully into account so that the legislation can be brought into line with the Convention. It requests that the Government keep it informed in this respect. The Committee reminds the Government that it may avail itself of technical assistance from the Office in preparing any draft legislation, and asks the Government to send any texts once they have been adopted.