Demande directe (CEACR) - adoptée 1997, publiée 86ème session CIT (1998)

The Committee notes the Government's report, including the judgements of the Labour Court attached thereto.

1. Article 1. The Committee had noted the conclusions of the Committee on Freedom of Association in Case No. 1590 concerning the need to provide compensation to trade union members who had been victimized due to their trade union activities. In its report, the Government states that in its opinion, this matter is closed for the following reasons: (i) the Court of Appeal found that the dismissals were lawful (pursuant to the Trade Union and Trade Dispute Laws, 1964, which has now been repealed); (ii) the former employers could not be compelled to provide compensation as they have left the country; (iii) the Government does not have the finances to provide such compensation due to budgetary constraints. The Committee notes that the first two of these reasons were raised by the Government within the context of Case No. 1590. On the first issue the Committee on Freedom of Association responded as follows:

Where national laws, including those interpreted by the high courts, violate the principles of freedom of association, the Committee has always considered it within its mandate to criticize the laws, provide guidelines ... the Committee does not consider here whether the Government has acted in a manner consistent with national law. Rather, it is considering only whether and how national law conforms to international standards, and in particular the ILO Conventions ... (287th Report of the Committee, paragraph 213).

The Committee on Freedom of Association also stressed the importance of financial compensation for the employees who had been dismissed for their participation in a strike, having noted that the enterprise had left Lesotho (287th Report, paragraph 221). While noting the Government's further concerns regarding budgetary constraints, the Committee reiterates the point raised by the Committee on Freedom of Association regarding the importance of compensating employees dismissed on the basis of their trade union activities. Where there is no remedy for a violation of a fundamental right, the right becomes illusory.

The Committee notes that pursuant to the Labour Code Order, 1992, as interpreted by the Labour Court, there is now protection against dismissal for participation in a strike. The Committee takes particular note of several Labour Court cases in which remedies for anti-union discrimination were ordered. Given that the new legislation provides protection for workers engaging in strikes and given that the enterprise at issue in Case No. 1590 has left Lesotho, the Committee will not pursue this matter further.

2. Article 4. The Committee repeats its request to the Government to supply information on the practical application of this Article of the Convention, including the number of agreements signed, the signatory organizations and the sectors covered.

3. Article 6. The Committee notes that according to the Government's report, the Labour Code Order, 1992, does not apply to public officers by virtue of the provisions of section 35 of the Public Service Act No. 13 of 1995, which came into effect on 9 April 1996. The Committee requests the Government to specify the scope of the exclusion and forward to it a copy of this legislation.