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

The Committee notes the Government’s report. It also notes the following legislative texts: the Law on Trade Unions of 14 January 2000; the Labour Code of 1 January 2000; and Presidential Decree No. 2 of 26 January 1999 and its corresponding Regulations and Rules. The Committee wishes to raise the following points in respect of these texts.

Article 2 of the Convention. (a)  Right of workers and employers to establish organizations of their own choosing without previous authorization. With reference to its previous comments, the Committee takes note of Presidential Decree No. 2 on some measures on regulation of activity of political parties, trade unions and other social associations which has required all previously registered trade unions at national, branch and enterprise level to re‑register. The Committee first notes that section 3 of the Decree provides that the "activity of non‑registered associations and of associations that have not been registered shall be banned in territory of the Republic" and that "associations that have not been re‑registered shall terminate their activity and shall be liquidated according to the established procedure". The Committee further understands that legal personality is dependent upon registration under the Decree. In this respect, the Committee would first recall that national regulations governing the constitution of organizations are not in themselves incompatible with the provisions of the Convention, however, they must not be equivalent to a requirement for "previous authorization", nor must they constitute such an obstacle that they amount in practice to a prohibition.

Section 3 of the Decree sets forth minimum membership requirements at the national, branch and enterprise level; for the latter, an organization must have at least 10 per cent of the workers at the enterprise as members in order to be registered. The Committee would recall that while a minimum membership requirement is not in itself incompatible with the Convention, the number should be fixed in a reasonable manner so that the establishment of organizations is not hindered. What constitutes a reasonable number may vary according to the particular conditions in which a restriction is imposed (see General Survey on freedom of association and collective bargaining, 1994, paragraph 81). The Committee further understands that the notion of legal address necessary for registration under the corresponding Regulations and Rules has given rise to numerous denials of registration. In this respect, the Committee has considered that problems of compatibility with the Convention also arise where the registration procedure is long and complicated or when registration regulations are applied in a manner inconsistent with their purpose and the competent administrative authorities make excessive use of their discretionary powers and are encouraged to do so by the vagueness of the relevant legislation (see 1994 General Survey, paragraphs 68, 69 and 75).

In the light of the above, and given in particular the serious consequences under Decree No. 2 for non‑registration (banning of activities and liquidation), the Committee requests the Government to consider amending the Decree so as to exclude trade unions from the scope of its application and, if necessary, to institute a more simplified registration process. In the alternative, it requests the Government to amend the Decree so that the last two subsections of section 3 concerning the banning of activities of non-registered associations and their liquidation do not apply to trade unions, to amend the 10 per cent minimum membership requirement at the enterprise level so as to ensure that the right to organize is effectively guaranteed, particularly in large enterprises, and to give the necessary instructions to ensure that the notion of legal address is not construed restrictively so that the right of workers to establish organizations of their own choosing is not hindered.

(b)  Right of workers and employers, without distinction whatsoever, to establish and join organizations.  The Committee notes that the 1992 Trade Union Act, as amended on 14 January 2000, maintains the reference to "citizen" in sections 1 and 2 concerning the right to join trade unions of their own choosing. Furthermore, in the definitions section of the Labour Code of January 2000, "trade unions" are defined as a voluntary public organization that unites "citizens". In its previous comments, the Committee had recalled that the right of workers and employers, without distinction whatsoever, to establish and join organizations implied that any worker residing in the territory of a given State should enjoy the right to organize as provided for in Article 2 of the Convention. While having noted the Government’s indication that the Constitution provided this right to all persons residing and working in the territory, the Committee had requested the Government to envisage taking measures to amend the Trade Union Act in order to harmonize it with the Constitution and other national legislation and so as to bring it into conformity with the Convention. The Committee notes with regret that this amendment was not made in January when other amendments were made to the Trade Union Act and that section 1 of the new Labour Code also maintains this notion of citizenship rights in its definition of trade union. It once again requests the Government to take the necessary measures to amend sections 1 and 2 of the Act, as well as the definition section 1 of the Labour Code, so that the right to organize is clearly not limited to nationals.

Article 3. (a)  Right of workers’ organizations to organize their activities in full freedom.  In its previous comments, the Committee urged the Government to amend Order No. 158 of 28 March 1995, which established a list of essential services in which strikes were prohibited that went beyond the notion of essential services in the strict sense of the term. The Committee now notes with satisfaction that, with the entry into force in January 2000 of the new Labour Code, Order No. 158 has been effectively repealed.

The Committee notes, however, that section 388 of the Labour Code permits legislative limitations on the right to strike in the interests of national security, public order, health of the population, and rights and freedom of other persons. Furthermore, section 393 permits the President to postpone, or to stop, the strike for up to three months in the same abovementioned cases; yet section 388 provides that a strike may be carried out not later than three months from the date upon which it has been declared. The Committee would first recall the right of unions to organize their activities (Article 3 of the Convention) implies the recognition of the right to strike and that this right may only be limited, or even prohibited, in cases of acute national crisis, or for public servants exercising authority in the name of the state or essential services in the strict sense of the term, that is to say only those the interruption of which would endanger the life, personal safety or health of the whole or part of the population, and requests the Government to confirm its understanding that sections 388 and 393 would only be used in such cases. As concerns the presidential power to postpone a strike for up to three months, potentially rendering illegal any strike action due to the limitation on the time period for exercising the strike once it has been declared, the Committee requests the Government to take the necessary measures to amend the legislation so that the powers under section 393 would not effectively render impossible the exercise of legitimate industrial action.

As concerns the requirements for strike notification under section 390 of the Labour Code, the Committee notes that these include a statement 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 repeal the obligation to notify the duration of a strike when giving strike notice.

Furthermore, the Committee notes that strike notification must include proposals on minimum services to be carried out during the period of the strike and that the provision of such services is an obligation under section 392. The Committee would draw the Government’s attention to paragraph 160 of its 1994 General Survey where it has considered that, in order to avoid damages which are irreversible or out of all proportion to the occupational interests of the parties to the dispute, as well as damages to third parties, namely the users or consumers who suffer the economic effects of collective disputes, the authorities could establish a system of minimum service in services which are of public utility. The Committee considers however that the notion of minimum service should be limited to such cases and not used excessively to require such a service in all undertakings, regardless of the limited impact the industrial action might have on third parties. Moreover, the Committee notes that, where the parties fail to agree on the extent of such a minimum service, the final determination will be made by the local executive and administrative body. In cases of disagreement concerning minimum services, however, the Committee considers that it is preferable for such disagreements to be resolved by an independent body. The Committee therefore requests the Government to amend the Labour Code so as to ensure that the final determination concerning the minimum service to be provided in the event of disagreement between the parties be made by an independent body and to further ensure that minimum services are not required in all undertakings but only in the situations outlined above or to ensure the safe operation of necessary facilities.

(b)  Right to elect their representatives in full freedom.  The Committee takes note of the instructions dated 11 February 2000 issued by the head of the presidential administration which calls upon the ministers and chairs of government committees to interfere in the elections of branch trade unions. It recalls that the autonomy of organizations can be effectively guaranteed only if their members have the right to elect their representatives in full freedom (Article 3 of the Convention). The public authorities should therefore refrain from any interference which might restrict the exercise of this right, whether as regards the holding of trade union elections, conditions of eligibility or the re-election or removal of representatives (see 1994 General Survey, paragraph 112). The Committee therefore requests the Government to take the necessary measures to ensure that such interference may not occur, including through the revocation of the relevant instructions.

Article 5.  The Committee notes that section 388 prohibits financial assistance from foreign legal persons to strike participants. The Committee draws the Government’s attention to paragraph 197 of its 1994 General Survey wherein it considers that legislation which prohibits trade unions from receiving financial aid or subsidies from foreign organizations poses serious difficulties in respect of the right of organizations to affiliate with international organizations and receive the assistance and benefits which come from such affiliation. The Committee therefore requests the Government to take the necessary measures to amend this section so that national workers’ organizations may receive assistance, even financial, from international workers’ organizations, even when its purpose is to assist in the exercise of freely chosen industrial action.

The Committee is also addressing a request directly to the Government.

[The Government is asked to report in detail in 2001.]