Observation (CEACR) - adoptée 2002, publiée 91ème session CIT (2003)

The Committee notes the information provided in the Government’s report. It also notes with interest the entry into force of the new Labour Code, as amended in 2001, as well as the Civil Servant Act, as amended in 2000 and 2001.

Article 2 of the Convention. Right of workers, without distinction whatsoever, to establish and join organizations of their own choosing. The Committee notes that while section 43 of the current Civil Servant Act provides that civil servants have the right to associate, section 3(2) provides that persons implementing technical functions in the administration are not considered as civil servants. In this regard, the Committee recalls that given the very broad wording of Article 2 of the Convention, all public servants and officials should have the right to establish occupational organizations, irrespective of whether they are engaged in the state administration at the central, regional or local level, are officials of bodies which provide important public services or are employed in state-owned economic undertakings. However, to bar senior public officials from the right to join trade unions which represent other workers is not necessarily incompatible with freedom of association, but on two conditions, namely that they should be entitled to establish their own organizations, and that the legislation should limit this category to persons exercising senior managerial or policy-making responsibilities (see General Survey of 1994 on freedom of association and collective bargaining, paragraphs 49 and 57). The Committee therefore asks the Government to indicate in its next report whether the persons covered by section 3(2) of the Act have the possibility to establish their own organizations and to specify the nature of the functions exercised by these persons.

Article 3. The Committee recalls that its previous comments concerned the need to amend section 11(2) of the Act of March 1990 regarding the settlement of collective labour disputes, which provides that the decision to strike shall be taken by a simple majority of the workers of the enterprise or the unit concerned. The Committee has recalled in the past that account in a strike ballot should only be taken of the votes cast and that the quorum should be fixed at a reasonable level. It once again requests the Government to indicate in its next report the measures taken or envisaged to bring its legislation into full conformity with the Convention in this respect. Furthermore, the Committee notes that section 11(3) stipulates that the duration of the strike must be declared. In this regard, the Committeeconsiders that forcing the employees and their organizations to specify the length of a strike would restrict the right of workers’ organizations to organize their administration and activities and to formulate their programmes. The right to strike is effectively, by definition, a means of applying pressure which the workers and their organizations may use to promote and defend their social and economic interests and achieve satisfaction in their claims. The Committee therefore requests the Government to amend the legislation so as to eliminate the obligation to give notification of the duration of the strike, and asks it to include details in its next report on the measures taken in this connection.

As concerns the provision of compensatory guarantees for workers in the energy, communications and health sectors whose right to strike is denied, the Committee recalls that compensatory guarantee procedures should provide sufficient guarantees of impartiality and rapidity, arbitration awards should be binding on both parties and once issued should be implemented rapidly and fully. In this respect, the Committee takes due note of the creation, in March 2001, of the National Institute for Conciliation and Arbitration, which is not, however, yet functional. The Committee therefore requests the Government to indicate in its next report if the said institute is operational.

As concerns the Civil Servant Act, the Committee had noted that section 47 of the Act restricted the right to strike to the carrying and placing of suitable signs and symbols, protest posters and armbands. It had thus recalled that restrictions on the right to strike should be limited to public servants exercising authority in the name of the State. In its latest report, the Government indicates that the Ministry of Labour has presented on 29 May 2002 a draft Bill amending and supplementing the Civil Servant Act, which would extend the right to strike to civil servants. The Committee notes that article 24 of the draft Bill amends section 47 of the current Act and would enable public servants not only to strike symbolically but also to discontinue their work effectively. The Committee asks the Government to indicate, in its next report, the type of employees who will be covered by this new law and trusts that the said draft Bill will be adopted soon. It requests the Government to keep it informed of developments in this regard.

In addition, a request regarding certain points is being addressed directly to the Government.