Observación (CEACR) - Adopción: 2009, Publicación: 99ª reunión CIT (2010)

The Committee notes the comments made by the International Trade Union Confederation (ITUC) dated 26 August 2009. It requests the Government to send its observations on this matter.

The Committee also notes the adoption of Act No. 13/2009 of 27 May 2009 issuing the new Labour Code.

Articles 1 and 2 of the Convention. In its previous comments the Committee asked the Government to take steps to establish sufficiently dissuasive penalties for acts of anti-union interference and discrimination. The Committee notes that, according to the provisions of section 114 of the new Labour Code, any act which infringes the provisions providing protection against acts of discrimination and interference shall constitute an offence and incur the payment of damages. The Committee notes that the amount of damages has not been fixed, except for wrongful termination of an unemployment contract, as laid down by section 33 of the Code. In the latter case, the damages vary from three to six months’ wages, and may amount to as much as nine months’ pay where the worker has more than ten years’ service with the same employer, or where staff delegates or union representatives are concerned. The Committee requests the Government to provide further information on the amount of damages applicable for acts of discrimination against trade union members or officials, other than the dismissal of trade union representatives.

Article 4. With reference to its previous comments concerning compulsory arbitration in the context of collective bargaining, the Committee notes with regret that the collective dispute settlement procedure provided for in section 143 ff. of the new Code culminates, in cases of non-conciliation, in referral to an arbitration committee whose decisions may be the subject of an appeal to the competent jurisdiction, whose decision shall be binding. The Committee recalls that, except for the cases of public servants engaged in the administration of the State and essential services in the strict sense of the term, arbitration imposed by the authorities or at the request of one party is generally contrary to the principle of the voluntary negotiation of collective agreements established by the Convention, and thus the autonomy of bargaining partners (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 257). The Committee requests the Government to take the necessary steps to amend the legislation in such a way that, except in the circumstances referred to above, a collective labour dispute in the context of collective bargaining may be submitted to the competent legal authority only with the agreement of both parties.

Moreover, with reference to its pervious comments, the Committee notes that section 121 of the Code provides that, at the request of a representative organization of workers or employers, the collective agreement shall be negotiated within a joint committee convened by the Minister of Labour or his delegate or the competent labour inspector. The Committee recalls that such a provision may well restrict the principle of free and voluntary negotiation of the parties within the meaning of the Convention, and even of being applied where one party wishes to have a new collective agreement even before the existing agreement has expired. The Committee requests the Government to take steps to amend section 121 of the Labour Code so that recourse to a joint committee for negotiating a collective agreement is possible only with the agreement of both parties.

With regard to the question of the extension of collective agreements, the Committee notes that, under section 133 of the Labour Code, at the request of a representative workers’ or employers’ organization, whether or not it is a party to the agreement or on its own initiative, the Minister of Labour may make all or some of the provisions of a collective agreement binding on all employers and workers covered by the occupational and territorial scope of the agreement. The Committee requests the Government to take the necessary steps to amend the legislation so that the extension of collective agreements is the subject of in-depth tripartite consultations (even where provision is made, as is the case in section 136 of the Code, for the parties affected by the application of an extended collective agreement to file a request for an exemption with the Minister of Labour).

Article 6. With reference to its previous comments, the Committee notes that, under section 3 of the Code, any person governed by the general or individual public service regulations is not subject to the provisions of the Code other than for matters determined by an Order of the Prime Minister. The Committee regrets that the national authorities have not taken the opportunity afforded by the reform of the Labour Code to guarantee the right to collective bargaining for public servants covered by the Convention and requests the Government to indicate any measures taken or contemplated to this end.

Finally, the Committee requests the Government to supply information in its next report on the activities of the National Labour Council with regard to collective bargaining, on the number of collective agreements concluded, and on the sectors and numbers of workers covered.