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

Anti-union discrimination. Articles 1 and 3 of the Convention. 1. Compensation for acts of anti-union discrimination and unfair dismissal. The Committee had noted that section 31(6) of Act No. 2821 concerning compensation in case of dismissal for anti-union reasons stipulated that in cases where the contract of employment is terminated for reasons of union membership or union activities, the provisions of sections 18, 19, 20 and 21 of the Act No. 4857 are applicable; however, the compensation afforded to a worker under section 18 of Act No. 4857 for unfair dismissal, can be inferior to that paid under section 31 of Act No. 2821.

The Committee notes from the Government’s report that compensation paid under section 21 of Act No. 4857 for unfair dismissal in violation of section 18 of this Act (which prescribes that union membership or participation in union activities outside working hours or with the consent of the employer, within working hours, shall not constitute a valid ground for termination of the contract) aims to ensure job security; consequently, the remedy prescribed (between four and eight months’ wages) is designed to compensate for losses prior to the worker’s reinstatement, or if the employer fails to reinstate the worker within one month, compensation consisting of advance notice pay and severance pay. On the other hand, the compensation stipulated in Act No. 2821 is aimed at remedying any act of anti-union discrimination including dismissal. Penal sanctions are envisaged for violation of this provision as well as compensation in case an employer discriminates between workers or dismisses workers on trade union grounds. Thus, the compensation between the two cases cannot be equivalent. The Committee takes note of this information.

2. Updating of the sanctions provided under sections 59(2) (non-reinstatement of trade union officers) and 59(3) (anti-union discrimination at the time of recruitment) of Act No. 2821. The Committee requests the Government to indicate in its next report the progress made in respect of the amendment of sections 59(2) and (3) of Act No. 2821 concerning the updating of the fines imposed for acts of anti-union discrimination.

3. In its previous comments, the Committee had requested the Government to ensure that the compensation afforded to a trade union officer who is returning to his/her post and is not reinstated for anti-union reasons has a dissuasive effect. The Committee notes from the Government’s report that the bill to amend Act No. 2821 provides that if an employer fails to reinstate an employee who wishes to return after having served as trade union officer, the employment contract shall be deemed to be terminated and the compensation amount shall be calculated on the basis of the time spent in active employment at the workplace. The basis for the calculation shall be the wage and other rights valid for a comparable worker at the time of termination. The Committee requests the Government to indicate in its next report the progress made with regard to the amendment of section 29 of Act No. 2821.