Observation (CEACR) - adoptée 1993, publiée 80ème session CIT (1993)

The Committee notes the Government's report, which once again includes comments from the Federation of Unions of Workers in the Service of the State (FSTSE) and from the executive board of the National Federation of Banking Unions (FENASIB), which emphasizes its previous comments and makes additional ones.

The Committee emphasizes that for several years it has been pointing out that the following provisions of the Federal Act on State Employees are not in conformity with the Convention:

- the prohibition of the coexistence of two or more unions in the same state body (sections 68, 71, 72 and 73 of the Federal Act on State Employees);

- the prohibition of a worker in the service of the State from leaving the union to which he belongs (section 69);

- the prohibition of the re-election of trade union officers (section 75);

- the prohibition of unions of public servants from joining trade union organizations of workers or peasants (section 79);

- the extension of the restrictions applicable to trade unions in general to the single Federation of Unions of Workers in the Service of the State (section 84).

The Committee also raised objections concerning section 23 of the Act issued under section 123(B)(XIIIbis) of the Constitution, which institutionalizes in the law the trade union monopoly of the National Federation of Banking Unions.

The Committee notes the Government's statement in its report that at the present time it has no information that there is any prospect of amending the legal provisions criticized by the Committee in the near future. Nor has it come to its knowledge that the members of the various unions of office-workers, nor the Federation in which they are grouped together (the FSTSE), have criticized the legal provisions respecting public employees. The Government also reports that the Federal Act on State Employees of 1963 has been amended by various decrees, the last of which was adopted in 1991.

With regard to the prohibition on two or more unions in the same state body, the Government points out in its report that the existence of two or more unions in the same state body would probably not be beneficial in view of the natural scope and divergence of interests which could arise between organizations of public servants with similar interests and conditions of employment. The FSTSE also considers that the existence of more than one union would result in the dissipation of the trade union movement and a weakening of the capacity to dialogue and present the common interests of employees of the State.

The Committee wishes to emphasize that any system of trade union unity or monopoly imposed directly or indirectly by the law is at variance with the principle of the establishment of organizations of workers and of employers in full freedom as set out in Article 2 of the Convention. The Committee wishes to point out that, in the preparatory work for Convention No. 87, the International Labour Conference did not propose to impose trade union pluralism of a compulsory nature; it confined itself to guaranteeing the possibility to establish different organizations. There is therefore a fundamental difference between a situation in which a trade union monopoly is instituted or maintained by law and the factual situation in which the workers or their trade unions join together voluntarily in a single organization, without this being the result of legislative provisions adopted to this effect.

The Committee recalls that it is not necessarily incompatible with the Convention for a legislation to establish a distinction between the most representative trade union organization and other trade union organizations, provided that this distinction is limited to the recognition of certain rights to the most representative trade union organization (particularly with regard to representation for the purposes of collective bargaining or consultations by governments). However, this distinction should not have the effect of making it possible to prohibit the existence of other trade union organizatons which some of the workers concerned wish to join.

With regard to the prohibition placed upon the members of a trade union of workers in the service of the State (section 69), the Committee notes the Government's comments and those of the FSTSE, which reiterate their previous points of view.

In this respect, the Committee also emphasizes that the public authorities are bound to refrain from any legislative intervention which limits the right of workers to join the trade union organization which they consider to be appropriate (Articles 2 and 3 of the Convention), or the right to leave such an organization.

With reference to the prohibition of the re-election of trade union officers (section 75), the Committee note the comments made by the Government and the FSTSE, which refer to observations which they made previously. The Committee also notes the observations made by the FENASIB, which considers that there should not be restrictions preventing the official recognition of an organization, nor prohibiting the re-election of trade union officers, nor setting a limit on their periods of office. The FENASIB adds that, although such provisions may be convenient, they are not in accordance with the sense of the Convention and, therefore, may be interpreted as an intervention which restricts a right.

The Committee once again wishes to point out that, in accordance with Article 3 of the Convention, organizations of workers should be left free to determine in their by-laws or statutes the conditions respecting the election of their leaders. Any legal measure adopted by the public authority which prohibits or restricts re-election to trade union office is incompatible with the Convention.

With regard to the prohibition upon unions of public servants from joining trade union organizations or central organizations of workers or peasants (section 79), the Committee, having noted the reiterated statements by the Government and the FSTSE, wishes to point out once again that, for the Convention to be fully applied, organizations of workers in the public sector should have the right to join federations or confederations which also include private sector organizations. Any limitation in this respect which has as its source the public authority is incompatible with Article 5 of the Convention. If the organizations of workers in the service of the State found it inconvenient from a functional and legal point of view to join organizations or central organizations of workers or peasants, in the Committee's view, they are the ones who should determine any limitations in their statutes and by-laws, and not the public authority.

With regard to the existence and recognition by the Government of the single Federation of Unions of Workers in the Service of the State (section 78), which is governed by the provisions on trade unions contained in the Federal Act on State Employees (section 84), the Committee notes the comments made by the Government and the FSTSE, which reiterate their observations in previous reports, as well as the indications given by the FENASIB to the effect that, even recognizing that the legal provisions in question limit the ability of trade unions to join other federations or confederations, it is the express wish of the trade unions, granted in Congress, to recognize a single federation.

In this respect, the Committee considers that the will of the workers as regards the form in which they associate is reflected through the organizations which they establish and the by-laws which they adopt. If trade union unity at the level of federations is imposed by law, it is not possible to know the extent to which such unity is the expression of the will of the workers and their associations, or is derived from the provisions of section 78, which is contrary to Article 5 of the Convention.

With regard to section 23 of the Act issued under section 123(B)(XIIIbis) of the Constitution, which institutionalizes in the law the trade union monopoly of the National Federation of Banking Unions (FENASIB), the Committee notes the information provided by the Government to the effect that, as a result of the constitutional reforms envisaged in the Official Gazette of the Federation, dated 27 June and 18 July 1990, as from the time when they are no longer part of the system of public administration bodies, relations between multiple banking institutions and their employees will begin to be governed by section 123(A) of the Constitution and the Federal Labour Act and, as a consequence, their employees will be able to establish trade union organizations under the terms of the Federal Labour Act. With regard to the national credit societies, which will remain the property of the State, the Committee notes that, according to the information supplied by the Government, there is currently no proposal for changes in their legal status. The Committee also notes the comments of the FENASIB, in which that Federation recognizes that section 23 of the Act issued under section 123(B)(XIIIbis) of the Constitution is at variance with Article 2 of the Convention, although it does not claim that changes are necessary since the trade unions of bank employees have reiterated their free will to group together in a single organization, namely the FENASIB.

In this connection, the Committee notes with interest that employees in private banks, since they are covered by the Federal Labour Act, can establish the organizations that they wish, both in terms of first-level trade unions and at the level of federations and confederations. Nevertheless, the Committee notes that employees of public banks will continue to be governed by the Act issued under section 123(B)(XIIIbis) of the Constitution, section 23 of which gives them no possibility in law of trade union pluralism at the level of the federation.

The Committee once again expresses the hope that the Government will re-examine the legislation in the light of the principles of the Convention, and that it will supply information on any measure which has been adopted or is envisaged to harmonize the Federal Act on State Employees and the Act issued under section 123(B)(XIIIbis) of the Constitution with the requirements of the Convention.