Observation (CEACR) - adoptée 1998, publiée 87ème session CIT (1999)

The Committee notes the information contained in the Government's report.

The Committee recalls its previous comments concerning sections 1, 3, 4 and 5 of Legislative Decree No. 92-03 of 30 September 1992 on combating subversion, as well as sections 43 and 48 of Act No. 90-02 of 6 February 1990 on compulsory arbitration, and that these sections contain provisions which could jeopardize the right of workers' organizations to administer their activities and formulate their programme of action to defend the economic, social and occupational interests of their members, without interference from the public authorities.

The Committee notes in the first instance that the Government reiterates the response provided in its previous report, namely that Legislative Decree No. 92-03 of 30 September 1992 is not directed against the right to strike or the right to organize. The Committee, nevertheless, recalls that section 1, read in conjunction with sections 3, 4 and 5 of Decree No. 92-03, defines as subversive acts any offence directed, in particular, against the stability and the normal functioning of institutions, which aim to: (1) obstruct the operation of establishments providing public services; or (2) impede traffic or freedom of movement in public places or highways, under penalty of severe sanctions, including up to 20 years' imprisonment.

The Committee requests the Government to take measures, through legislation or regulation, to ensure that these provisions cannot be enforced against workers who are peacefully exercising their right to strike, which is an intrinsic corollary of the right to organize protected by the Convention.

Moreover, the Committee notes with interest that the Government's report indicates that the supervisory, advisory and aid programmes developed by the labour inspection services in the labour market, as well as those to resolve labour disputes, do not reveal any major obstacles in respect of the exercise of the right to organize as well as the right to strike.

The Committee, nevertheless, recalls that the power conferred on the Minister or the competent authority, under sections 43 and 48 of Act No. 90-02 of 6 February 1990, to refer an industrial dispute to the Arbitration Commission can only be used in the event of continued strike action and after the failure of mediation, provided for under section 46. The Minister, the Wali or the President of the Communal Peoples' Assembly concerned can, "when urgent social and economic needs require" and after consultation with the employer and the workers' representatives, refer the industrial dispute to the National Arbitration Commission.

The Committee wishes to recall once again that compulsory arbitration should only be used at the request of both parties and/or that arbitration to end a strike should only be imposed when strikes occur in essential services in the strict sense of the term, namely those whose interruption would endanger the life, personal safety or health of the whole or part of the population, or where the extent and duration of the strike could provoke an acute national crisis. The Committee therefore requests the Government to amend its legislation accordingly to bring it into greater conformity with the principles of freedom of association.

The Committee requests the Government to indicate in its next report the measures taken or envisaged to bring its legislation into conformity with the requirements of the Convention.