Observation (CEACR) - adoptée 2001, publiée 90ème session CIT (2002)

The Committee notes the information contained in the Government’s report, which is confined to recalling the information provided in its previous reports. It recalls that its previous comments related to the following points:

  Article 2

1. Trade union rights of public servants. The Committee had noted that section 14 of the Labour Code excludes public servants and magistrates from its scope. It notes that according to the Government, the Statute of public servants provides in section 29 for the right to organize but there is still no legal text providing measures for the exercise of the right to strike. The Government also indicates that the Statute of magistrates provides for the right to organize. In this regard, the Committee once again requests the Government to send it copies of the Statute of public servants and the Statute of magistrates currently in force, as well as the text fixing the means of exercising the right to strike for public servants.

2. Trade union rights of minors. The Committee had noted that section 271 of the Labour Code provides that minors under the age of 18 years must obtain explicit authorization from their parent or guardian to join a trade union. The Committee takes due note of the Government’s statement according to which no minor can perform an act of a legal nature without the authorization of his or her parents. However, the Government had given the assurance that it would abolish this authorization concerning the decision to join a trade union. The Committee requests that the Government indicate the measures which have been taken or are envisaged to ensure the trade union rights of minors who are entitled to have access to the labour market, both as workers and as apprentices, without the requirement of parental authorization.

  Article 3

1. Election of trade union leaders. The Committee noted that the Labour Code sets certain conditions for holding the position of trade union officer or administrator.

-  Criminal record (section 275 of the Labour Code). This section provides that trade union leaders or administrators must not have served a definitive term of imprisonment of more than six months. The Committee notes the Government’s statement that court decisions have found workers guilty of misuse of funds but that it does not have access to these judgements. The Committee considers that a conviction for misuse of funds may be viewed as an act, the nature of which is such as to call into question the integrity of the person concerned and offers tangible risks for the performance of trade union duties. However, the above section is particularly broad in its wording and could therefore cover acts without any real bearing on qualities of integrity required to discharge trade union office. The Committee requests that the Government indicate the measures which have been taken or are envisaged to amend this section with a view to ensuring that only crimes prejudicial to the performance of trade union duties are taken into consideration when disbarring candidates from trade union office.

-  Belonging to the respective occupation (section 275). This section provides that the administrator or trade union leader must have belonged to the occupation or trade for at least one year. The Committee considers that provisions which require all candidates for trade union office to belong to the respective occupation or enterprise are contrary to the guarantees set forth in the Convention. Provisions of this type infringe the organization’s right to elect representatives in full freedom by preventing qualified persons, such as full-time union officers or pensioners, from carrying out trade union duties or by depriving unions of the benefits of the experience of certain officers when they are unable to provide enough qualified persons from among their own ranks. Moreover, there is also a real risk of interference by the employer through the dismissal of trade union officers, which deprives them of their trade union office (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 117). The Committee again requests the Government to modify its legislation by accepting the candidature of persons who worked previously in the respective occupation or by lifting this requirement for a reasonable proportion of trade union officers.

2. Articles 3 and 10 of the Convention. The right of workers’ organizations to organize their administration and activities to further and defend the interests of their members. The Committee had noted that the series of compulsory procedures prior to taking strike action laid down in the Labour Code (sections 191-210) would suggest that the minister was empowered to prohibit any strike.

In recent reports, the Government has indicated that it is aware of the necessity to clarify the modalities concerning the exercise of the right to strike and that a draft text to be issued under the Labour Code on this matter already existed and would be examined by the National Labour Council. The Committee once again requests that the Government provide it with a copy of the above text on the modalities for the exercise of the right to strike so that it can examine its conformity with the provisions of the Convention.

The Committee had also noted that, under the terms of section 213 of the Labour Code, a strike is legal when it is called following a vote approved by a simple majority of the employees of the workplace or the enterprise. In this regard, the Government indicated that in practice a vote of the workers concerned was not necessary and that it was sufficient for consensus to exist on this matter. The Committee requests that the Government indicate the measures which have been taken or are envisaged to bring the legislation into conformity with practice.

The Committee hopes that the Government, in the light of the comments made above, will take all the necessary measures to bring its national legislation into conformity with the Convention. It draws the Government’s attention to the availability of the Office to provide any technical assistance in this respect that it may consider necessary.