Demande directe (CEACR) - adoptée 1990, publiée 77ème session CIT (1990)

1. Article 25 of the Convention. In its previous comments, the Committee referred to the fact that certain categories of workers (persons employed in family enterprises, persons employed in certain activities concerning pastures, animal husbandry or agriculture, and domestic servants and persons regarded as such) are excluded, by virtue of section 3 of the Labour Code, from the scope of the protection afforded against acts prejudicial to the freedom of either of the parties, provided for under section 22 of the Code.

In its previous comments, the Committee noted the information supplied by the Government that these categories of workers may, if they are unlawfully subjected to forced or compulsory labour, appeal to the court which enjoys full jurisdiction (the sharia court) in the matter. The Committee requested the Government to supply copies of the provisions making punishable the exaction of forced or compulsory labour and to indicate whether the courts to which workers may appeal under these provisions are accessible to non-Muslims.

The Committee notes the Government's indication in its most recent report that under the country's jurisdictional system, individuals may take legal action before the sharia court since it has full jurisdiction in all cases which do not, by express provision, fall within the competence of other bodies. Thus, according to the Government, categories of workers excluded from the scope of protection in the Labour Code may bring action before sharia courts, as all litigation involving them is outside of the competence of other bodies. The Government indicates that it is a settled matter amongst the sharia court and theologians that discrimination is forbidden in matters of public and private rights between Muslims and non-Muslims living in the territory of a Muslim State. The right to take legal action for the protection of personal and property rights is a basic public right, thus there is no impediment to non-Muslims injured in their person or property to bring an action before a sharia tribunal.

The Committee takes due note of the Government's indication, particularly as regards equal treatment between Muslims and non-Muslims. While noting that workers excluded from the scope of section 22 of the Labour Code may bring action before sharia courts, the Committee again requests the Government to indicate on what basis such action may be brought, i.e., where does national law define those personal rights, violation of which may give rise to legal action in conformity with Article 25 of the Convention.

2. In earlier comments, the Committee referred to sections 78 and 206 of the Labour Code. Under section 78, the employer shall not transfer the employee from his original place of employment to another place necessitating a change of residence, if such transfer is apt to cause serious prejudice to the employee and is not justified by a valid reason dictated by the nature of the work. Section 206 provides that, with due regard to section 78 of this Code, an employee who refuses, in cases of necessity, to work in a place other than his original place of residence or to perform work other than that for which he was contracted shall be liable to a fine.

In its reports, the Government indicates that in its view the provisions of sections 78 and 206 of the Labour Code are in conformity with Article 2(2)(d) of the Convention. Moreover, the Government considers that since the Labour Code has been published and thus made known to all, workers are aware of its provisions before accepting a labour contract and are entirely free to accept the contract on this basis or refuse it.

The Committee takes due note of these indications. As regards Article 2(2)(d) of the Convention, the exception from the scope of the Convention provided therein is limited to circumstances that would endanger the existence or the well-being of the whole or part of the population, such as war or the natural calamities listed in that provision; by contrast, it appears that under sections 78 and 206 of the Labour Code, performance of work other than that for which the worker was contracted may be imposed for any valid reason dictated by the nature of the work. This is not covered by Article 2(2)(d) of the Convention.

As regards the fact that workers are free to accept or reject a particular labour contract, the Committee understands that workers may be aware of the provisions of the Labour Code when accepting a labour contract; however, they have no freedom to accept or reject the provisions of sections 78 and 206 of the Labour Code, which impose on them a legal obligation to perform work other than that accepted in the labour contract; the imposition of such an obligation by law, under the menace of penalties, falls within the definition of forced or compulsory labour in Article 2(1) of the Convention.

The Committee hopes that the Government will re-examine its position in the light of the Convention and that it will indicate in its next report measures taken or contemplated to bring sections 78 and 206 of the Labour Code into conformity with the Convention.

3. Freedom of workers to leave the service. The Committee, in its previous comment, noted that persons employed by the State may at any moment leave the service by submitting a resignation request and that the service of a public servant is considered to be terminated when the Minister responsible signs the order accepting his or her resignation or after 90 days have elapsed from the date on which the resignation request was submitted. It once again requests the Government to supply copies of statutory instruments that are applicable to such cases, including the provisions governing resignation by career members of the armed forces.