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

The Committee notes the Government's reply to its previous observation.

1. In its previous comments, the Committee had noted that certificates of good conduct, living and morals are required by the labour administration before any person begins to work for wages and that when the communal authority considers that the person concerned may be suspected of carrying on an activity prejudicial to the security of the State, it refuses to issue these certificates without having to base its refusal on any provisions or procedures in this respect.

The Committee notes that, according to the Government, the question has been submitted to the Ministry of the Interior and of Communal Development for examination and appropriate follow-up. It hopes that the next report will indicate the measures taken or envisaged as a result of this examination so as to ensure that a person may be refused employment only for reasons linked to the security of the State within the limits prescribed by Articles 1, paragraph 2, and 4 of the Convention, and subject to the right of appeal set out in Article 4. In this regard, the Committee recalls paragraphs 134 to 138 and 104 of its 1988 General Survey on Equality in Employment and Occupation, in particular, where it states "the application of measures intended to protect the security of the State must be examined in the light of the bearing which the activities concerned may have on the actual performance of the job, tasks or occupation of the person concerned. Otherwise, there is a danger, and even likelihood, that such measures entail distinctions and exclusions based on political opinion or religion, which would be contrary to the Convention".

2. In its previous direct requests, the Committee had also referred to section 5 of the Legislative Decree of 19 March 1974 respecting General Regulations for State Employees and section 6 of Presidential Order No. 227/01 of 20 December 1976 respecting Regulations for Personnel of Public Enterprises, which include among recruitment criteria "good conduct, living and morals" and "loyalty to the authorities and national institutions".

Noting the Government's reply that this proof of loyalty is treated in the same way as certificates of good conduct, living and morals, the issuance of which is at the discretion of the communal authority, the Committee refers back to its comments under point I of this observation. In addition, it observes that the requirement of "loyalty to the authorities and national institutions" should not be interpreted in practice in such a way as to justify any distinction, exclusion or preference based on political opinion as regards access to employment in the public service or in public enterprises. Indeed, while it is accepted under Article 1, paragraph 2, of the Convention that political opinion may be taken into account for certain senior posts directly related to the implementation of government policy, this is not the case when criteria of a political nature are laid down for all types of public employment in general or in certain other occupations, as for example, when it is stipulated that the persons concerned must formally declare themselves and show themselves faithful to the political principles of the regime in power.

Consequently, the Committee trusts that the Government will supply in its next report information on the application in practice of the provisions referred to above and, in particular, on the number of cases and the type of employment where these provisions have been used.

3. The Committee requests the Government to refer also to the request it is addressing directly to the Government on the application of other aspects of the Convention.