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

The Committee takes due note of the information provided by the Government in response to the Committee’s previous direct request.

Article 3 of the Convention. The Committee had previously noted section 77(1) of the Labour Code which provided that a strike shall be declared if a corresponding decision was approved by secret ballot by two-thirds of the enterprise’s employees voting in favour of a strike in the enterprise; and two-thirds of the employees of a structural subdivision of the enterprise and at least half of the employees of the enterprise voted in favour of a strike in the structural subdivision of the enterprise. In this respect, it considered that the observance of the quorum provided for in section 77(1) of the Code might be difficult to reach and therefore hinder the possibility of carrying out a strike and requested the Government to amend this provision so as to lower the required quorum. The Committee notes the Government’s indication that in accordance with section 77(1) of the Labour Code, as amended on 28 May 2005, a trade union may adopt a decision to call a strike in accordance with the procedure established by its statute. Where there is no active trade union at an enterprise and the workers did not delegate the representation function to a relevant branch trade union, the decision to strike at the enterprise or its branch may be adopted by a work council following the abovementioned quorum. The Committee further notes the Government’s indication that a draft amendment of section 77 has been prepared and registered at the Parliament. The draft contains the following new quorum requirement: in case of a strike at an organization (enterprise) – vote by more than one-half of the employees is required; in case of a strike in a structural division – vote by more than one-half of the employees of the division and at least one-half of the employees of the organization as a whole is required. While noting that the proposed amendment would lower the quorum, the Committee nevertheless recalls that account should be taken only of the votes cast (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 170). The Committee requests the Government to take the necessary measures to amend section 77 of the Labour Code accordingly and to keep it informed of the measures taken or envisaged in this respect.

Concerning the Committee’s previous request to indicate the personnel of internal services concerned by the prohibition of strikes provided for in section 78 of the Labour Code, the Committee notes the Government’s statement that, in accordance with the latest amendment of section 78(1), this prohibition concerns all employees of the system of internal affairs with the exception of persons working under employment contracts. The Committee recalls in this respect that too broad a definition of the concept of public servants is likely to result in a very wide restriction or even a prohibition of the right to strike for these workers. The prohibition of the right to strike in the public service should be limited to public servants exercising authority in the name of the State (see General Survey, op. cit., paragraph 158).

In its previous comments, the Committee noted that, although the Tripartite Council (formed on the basis of an equal tripartite partnership) analysed and proposed to the Government possible solutions as to the settlement of the claims of workers employed in essential services who were prohibited from striking, the final decision was taken by the Government, as all enterprises and services in essential services were state-owned or related to objects of state significance. In this respect, the Committee felt that it would be more appropriate if the conclusions made by the Tripartite Council were final and binding, subject to review by an independent body, and in any case they should not lie with the discretionary authority of the State and requested the Government to ensure that the compensatory guarantees available to those whose strike action is restricted are seen to be impartial and reliable to the parties concerned. It further asked the Government to provide any decision taken pursuant to tripartite council conclusions. The Committee notes the Government’s statement that the proposals will be referred to the Tripartite Council for consideration, as under p. 4.2 of the Agreement on Tripartite Cooperation concluded by the Government, trade unions and employers’ organizations, the Government has undertaken to adopt resolutions on relevant economic, employment, labour and social issues only upon consideration of such issues at the National Tripartite Council if requested by the parties. The Committee recalls that the issue of concern is the power of the Government to take final decisions in settling claims of workers employed in essential services in the strict sense of the term, who are prohibited from striking. The Committee recalls once again that, where restrictions are adopted on the right to strike of workers who are employed in essential services in the strict sense of the term, compensatory guarantees should include appropriate, rapid and impartial conciliation and mediation procedures and the bodies entrusted with such functions should be independent and have the confidence of both workers and employers. It therefore requests the Government to provide information on the manner in which claims of workers in essential services are settled and on the relevant body responsible for taking the final decision in this respect. It further requests the Government to inform it of the outcome of any discussion on this matter by the Tripartite Council.

In its previous direct request, the Committee noted section 199(4) of the amended Criminal Code which provided that “organization of a strike at a nuclear facility was punishable by a penalty of corrective works for the period of up to two years or a fine”. At the same time, it noted the Government’s indication that the Code did not provide for criminal liability for engaging in strike preparations at nuclear facilities. In these circumstances, the Committee requested the Government to indicate the precise meaning of section 199(4) of the Criminal Code and to keep it informed of any use of sections 67, 199(3) and 199(4) of the Criminal Code in respect of industrial action. Regretting that no information was provided by the Government in this respect, the Committee reiterates its previous request.

With respect to the Committee’s previous request to indicate whether workers may initiate protest action in respect of the social and economic policy of the Government and have recourse to sympathy strikes, without sanction, the Government indicates that, while article 51 of the Constitution and section 76 of the Labour Code provide for workers’ right to strike in order to protect their socio-economic interests, the Law on meetings permits rallies, picket lines, demonstrations, processions and other unarmed meetings, including protest actions against governmental socio-economic policies. The Committee notes this information with interest.