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

The Committee notes the information supplied by the Government in its report.

1. With regard to the Committee's previous comments on the need to adopt specific provisions, accompanied by effective and sufficiently dissuasive sanctions, to guarantee the protection of workers against any act of anti-union discrimination by employers and the protection of workers' organizations against acts of interference by employers, the Government refers to various provisions of the draft Trade Unions Act which would guarantee such protection, in conformity with Articles 1 and 2 of the Convention.

The Committee firmly hopes that the draft Trade Unions Act will be adopted shortly and requests the Government to send a copy thereof as soon as it is adopted.

2. With reference to its previous comments on the need to adopt appropriate measures to encourage and promote the full development and utilization of machinery for the voluntary negotiation of collective agreements, the Committee notes with interest that section 32 of the new Labour Code (No. 25 of 1997) stipulates that: "The union committee or workers' representatives shall collectively discuss, agree upon and sign the draft collective agreement at a general meeting of the workers and on their behalf. Such agreement shall be binding upon all the workers. Any collective agreement not collectively discussed with the workers shall be invalid" (subsection 2) and that "it shall be forbidden to conclude an individual contract of employment with terms at variance with those of a collective agreement in respect of work covered by the said collective agreement" (subsection 4(a)). The Committee further notes that employers and the union committees or general union representing workers in more than one workplace may conclude a common collective agreement (section 33(1)) and that employers and union committees that are not parties to such agreement may accede to it (section 33(2)). The Committee requests the Government to keep it informed of the application in practice of these provisions, i.e. the number of collective agreements concluded, the sectors covered, the number of workers covered, etc.

3. With regard to the Committee's previous comments on the need to amend sections 68, 69 and 71 of the Labour Code of 1970 which governed the compulsory registration of collective agreements and the possibility of their cancellation in the event that they did not conform with the security and/or economic interests of the country, the Government indicates that Act No. 5 of 1970 was repealed by the new Labour Code, Act No. 5 of 1995, as amended by Act No. 25 of 1997.

The Committee notes that section 34(2) of the new Labour Code provides for the compulsory registration of collective agreements. The Committee recalls that provisions of this kind are compatible with the Convention, provided they merely stipulate that approval may be refused if the collective agreement has a procedural flaw or does not conform to the minimum standards laid down by general labour legislation. On the other hand, if legislation allows the authorities full discretion to deny approval or stipulates that approval must be based on criteria such as compatibility with general or economic policy of the Government, it in fact makes the entry into force of the collective agreement subject to prior approval, which is a violation of the principle of autonomy of the parties (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 251). In this respect, the Committee notes that section 32(6) of the new Labour Code stipulates that a collective agreement shall be invalid if any of its terms is "likely to cause a breach of security or to damage the economic interests of the country ...". Since this provision makes a collective agreement subject to prior approval before it can enter into force, or allows the agreement to be cancelled on the grounds that it runs counter to the Government's security and/or economic interests, the Committee considers it to be contrary to Article 4 of the Convention and requests the Government to take the necessary measures to amend it in line with the principles enunciated above. The Committee requests the Government to keep it informed of any developments in this regard.