Demande directe (CEACR) - adoptée 2000, publiée 89ème session CIT (2001)

The Committee notes the information provided in the Government’s report and the entry into force of the Labour Code on 1 July 1999.

Articles 2 and 3 of the Convention.  The Committee notes that under section 3.1 of the Labour Code an employee is defined as a "citizen" and under section 6.1 "employees" have the right to assemble with other employees for protecting their interests. Furthermore, section 3 of the Trade Union Rights Act and article 16(10) of the Constitution also refer to "citizen" rights to join and form trade unions. Section 113.2 of the Labour Code provides that regulations governing the employment of foreign citizens shall be adopted by the Government. The Committee would draw the Government’s attention to paragraph 63 of its 1994 General Survey on freedom of association and collective bargaining in which it states that the right of workers, without distinction whatsoever, to establish and join organizations implies that anyone legally residing in the territory of a given State benefits from the trade union rights provided by the Convention, without any distinction based on nationality. The Government is therefore requested to indicate in its next report the measures taken or envisaged to ensure trade union rights for non-national workers.

The Committee further notes that the determination of an "employee" under section 3.1 is based on the existence of a "contract of employment". The Government is requested to indicate in its next report whether this definition has the effect of excluding certain groups of workers who are not governed by a contract of employment.

Finally, the Committee notes that the Government’s report refers to the 1997 Law on Non-Governmental Organizations in respect of Article 2 of the Convention. The Committee notes however that section 3(1) of this Law provides that the Law is not applicable to trade unions. It requests the Government to specify whether this Law is indeed invoked for the registration of workers’ and employers’ organizations and, if not, to indicate the procedures governing registration of these organizations.

Article 3.  The right of workers’ organizations to organize their activities and to formulate their programmes.  1.  Third-party intervention.  The Committee notes that section 10.1 prohibits third-party involvement in collective bargaining, under penalty of a fine established in section 141.1.10. Furthermore, section 120.9 prohibits third parties from organizing a strike also under penalty of a fine. The Committee considers that these prohibitions constitute a serious restriction on the free functioning of trade unions and requests the Government to indicate in its next report the measures taken or envisaged to amend these two provisions so that unions may have recourse to third persons where necessary in the organization of their activities, negotiation of their agreements and organization of industrial action.

2.  Sympathy strikes.  The Committee further notes that section 120.9 noted above would appear to have the impact of prohibiting sympathy strikes. In this respect, the Committee recalls that workers should be able to engage in sympathy strikes, provided the initial strike they are supporting is itself lawful. (See 1994 General Survey, paragraph 168.) The Committee requests the Government to confirm whether sympathy strikes are indeed prohibited under this section and, if so, to indicate in its next report the measures taken or envisaged to amend this section so as to ensure that workers will not be punished for engaging in sympathy action when the initial strike is lawful.

3.  Strike duration.  The Committee also notes that section 120.4.2 requires that strike notice include an indication of the duration of the strike. The Committee considers that a requirement that the duration of a strike be announced when giving strike notice is contrary to the right of workers’ organizations to organize their activities and formulate their programmes in full freedom. The right to strike is, by definition, a means of pressure available to workers and their organizations for the promotion and defence of their economic and social interests. The Committee therefore requests the Government to indicate in its next report the measures taken or envisaged to repeal the obligation to notify the duration of a strike when giving strike notice.