Observación (CEACR) - Adopción: 2006, Publicación: 96ª reunión CIT (2007)

The Committee notes the comments of 10 August 2006 by the International Confederation of Free Trade Unions (ICFTU) which address legislative matters already raised by the Committee, and practical problems in giving effect to the Convention (registration applications blocked at the Office of the Public Prosecutor and intervention by public authorities in favour of an organization). The Committee requests the Government to send its comments on these observations with its next report.

Article 2 of the Convention. In its previous comments, the Committee noted that the procedure for acquisition of legal personality envisaged by the new Labour Code sets specific time limits and is ultimately subject to review by the courts, and that it applies to the amendment of the internal rules of trade unions. The Committee asked the Government to report any cases of refusal to issue a registration receipt and any rejection of amendments under this procedure. The Committee notes the Government’s statement that it has been notified of no refusals to deliver registration receipts or rejections of amendments.

Article 3. Right of workers’ organizations to elect their representatives in full freedom and to organize their administration and activities without interference from the public authorities. 1. In its previous comments, the Committee noted that section 278 of the new Labour Code extends the procedure for the establishment of trade unions to any changes in their administration or management. This provision therefore has the effect of subjecting such changes to the approval either of the Prosecutor-General or of the courts, and therefore gives rise to serious risks of interference by public authorities in the organization and activities of trade unions and their federations. In its report, the Government indicates that if the statutes as amended and the changes made to a union’s administration or management are lawful, there is no reason for the Prosecutor-General to withhold approval, and that section 278 therefore needs no amendment. The Committee points out that the establishment and amendment of the statutes of an organization of workers is the responsibility of the organization itself and should not be subject to the prior consent of the public authorities in order to take effect. Accordingly, it once again asks the Government to amend section 278 so as to provide that any change in the administration or management of a union may take effect as soon as the competent authorities have been notified and without the requirement of their approval.

2. Compulsory arbitration. In its previous comments, the Committee observed that the new Labour Code, in sections 350 and 362, allows compulsory arbitration in instances which go beyond essential services in the strict sense and in situations which cannot be deemed to constitute an acute national crisis. According to section 362, a strike is unlawful when it occurs either during the course of mediation or after notification of the Minister of Labour’s decision to refer the dispute to arbitration under the conditions set in section 350, or following the award of the Arbitration Council. The Committee noted in this connection that under section 350, the Minister of Labour may decide to refer a collective dispute to arbitration at any time, in light of the circumstances and impact of the dispute, and when he considers the strike to be prejudicial to public order or contrary to the general interest.

The Committee notes that in its report, the Government states that strikes are not prohibited and are one of the levers of freedom of association laid down in the Labour Code. Furthermore, the Minister decides to resort to arbitration only where he deems the strike to be prejudicial to public order or contrary to the general interest, i.e. to essential services, after mediation and conciliation proceedings have been exhausted.

The Committee nonetheless points out that the prohibition or restriction of the right to strike by means of compulsory arbitration can be justified only in the cases of: (1) 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; (2) an acute national crisis, and then only for a limited period and to the extent necessary to meet the requirements of the situation. The Committee again asks the Government to take the necessary steps to amend the relevant provisions of the Labour Code so as to limit the prohibition on strikes by means of compulsory arbitration to essential services in the strict sense of the term and to situations of acute national crisis.

3. Duration of mediation. Lastly, with regard to the prohibition on strikes for the duration of the mediation procedure established in section 362 of the Labour Code, the Committee pointed out that it is possible to require the exhaustion of conciliation and mediation procedures before a strike may be called on condition that the procedures are not so complex or slow that a lawful strike becomes impossible in practice or loses its effectiveness. The Committee observed in its last observation that the maximum period of 120 days for mediation provided in the Labour Code appeared too long in this respect. The Committee notes that in its report, the Government states that it could envisage reducing the maximum of 120 days in order to meet the Committee’s demands and that a committee is to be set up to draft implementing legislation for the Labour Code. The Committee requests the Government to report on the progress of the above committee’s work and to inform it of the measures taken or envisaged to amend section 346 of the Labour Code.

The Committee is addressing a direct request to the Government on other matters.