Solicitud directa (CEACR) - Adopción: 2008, Publicación: 98ª reunión CIT (2009)

1. The Committee notes the detailed reply to its 2006 direct request provided by the Government in its report received in July 2008. The Government indicates that the application of the Convention does not raise particular difficulties. With reference to its previous direct request, the Committee would be grateful if the Government would provide in its next report any court ruling or other decision based on sections 35, 37 and 38 of the Labour Code in relation to the justification of termination of employment (Article 4 of the Convention) or based on section 39 of the Labour Code respecting serious misconduct (Article 11).

2. Article 2. Listed Exclusions. The Committee recalls that the Government in its first report listed only two categories of workers for exclusion under Article 2, paragraph 4 of the Convention, namely workers in public enterprises and seafarers. The Committee notes that article 4 of the Labour Code provides that these categories of workers are subject to special laws which may not be less favourable than those contained in the Code. The Government is requested to include in its next report copies of these laws and to indicate how these categories are provided the protection afforded by the Convention.

3. Article 2. Purported exclusions. The Committee notes that in article 3 of the Labour Code, the following workers, in addition to those listed in the first report, may be excluded from the application of the Code: workers in mining; workers in the film industry; professional journalists; and janitors. These categories of employees were not listed for exclusion in the Government’s first report as requested by Article 2, paragraph 6 of the Convention and, accordingly, may not be excluded from the protection afforded by the Convention. The Committee notes, however, the Government’s reply that these categories of workers are provided protection of the Convention because article 4 of the Labour Code states that they are subject to special laws that may not be less favourable than the Code and that, to the extent that the special laws do not cover a matter, the Code applies. The Committee notes that it is permissible for a Member to give effect to the Convention in more than one law and it is unnecessary to regard them as exclusions.

Domestic workers and workers in the traditional sector are excluded from the application of the Code under article 4. This article of the Code provides that these categories are to be regulated by special laws. The Government indicates in its reply that it considers these categories to be excluded under Article 2, paragraph 5, of the Convention. The Committee notes that these categories of workers were not listed in the Government’s first report and accordingly cannot constitute exclusions for the purposes of Article 2. The Government is requested to provide in its next report copies of the special laws which apply to domestic workers and workers in the traditional sectors and to indicate how these categories of workers are provided the protection afforded by the Convention.

4. Article 7. Procedure prior to termination. The Government indicates that section 62 of the Labour Code requires that a hearing be held prior to termination, and the failure to do so will be considered by the courts to be a wrongful dismissal. The Committee also notes the decisions of the Supreme Court provided by the Government with its report. It recalls that workers may not be dismissed for reasons related to their conduct without being given an opportunity to defend themselves against the allegations made (unless the employer cannot reasonably be expected to provide this opportunity). The Committee requests the Government to continue providing it with court decisions applying this Article of the Convention.

5. Article 8. Examination by appeal bodies. The Government indicates that section 65 of the Labour Code guarantees dismissed workers recourse to a competent court irrespective of the reason for dismissal. It indicates that the courts that are competent in respect of termination for disciplinary reasons are also competent in respect of other grounds for dismissal. The Committee invites the Government to provide any available statistics with its next report on the activities of the courts in respect of the number of cases related to termination of employment, the outcome of these cases, the nature of the relief and the average time taken for a decision to be made.

6. Terminations for reasons of an economic, technological, structural or similar nature. The Committee notes with interest the Government’s statement that the procedure envisaged in section 66 of the Labour Code, under which employers habitually engaging ten or more employed persons may terminate all or part of these employed persons for economic reasons, does not affect the employment relationship as it exists in establishments engaging fewer than ten employed persons and does not in any way have the effect of allowing the obligations attached to such a relationship to be evaded. The Government indicates that in the event of collective dismissals in an establishment engaging fewer than ten employed persons, the competent courts nevertheless treats such cases as cases of individual dismissal. The Committee requests the Government to include information in its next report on the number of dismissals for economic or similar reasons during the period covered by the report.