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

The Committee notes the Government’s report. It further notes the observations made by the International Confederation of Free Trade Unions (ICFTU) on the application of the Convention and requests the Government to transmit its comments thereon. It recalls that its previous comments referred to:

-  the requirement that federations must obtain a two-thirds majority vote of their members to be able to establish a confederation (section 383 of the Labour Code of 1992);

-  the opposition of certain enterprises in export processing zones to the establishment of trade unions and the disregard for trade union protection;

-  respect for trade union rights in sugar cane plantations;

-  the requirement in the law of a majority of 51 per cent of votes in order to call a strike (section 407(3) of the Labour Code);

-  the exclusion from the scope of the Labour Code (Principle III) and of the Civil Service and Administrative Careers Act of employees of autonomous and municipal state institutions (section 2); and

-  the requirement of 60 per cent of the total number of employees in the respective institution for public servants to be able to establish organizations (section 142(1) of the Regulations adopted under the Civil Service and Administrative Careers Act).

Establishment of confederations

1. The Committee notes that the Government requires the agreement of the social partners to remove the requirement of the percentage set out in section 383 of the Labour Code of 1992, and that it undertakes to convene the Advisory Labour Council to hear the various opinions on this matter.

The Committee notes that, by virtue of sections 383 and 388 of the Labour Code, the agreement of two federations, supported by the votes of two-thirds of their members, is still required to establish a confederation. The Committee recalls in this respect the commitments made by the Government in the past, which it has failed to fulfil, that it would submit to the National Congress a Bill allowing federations to set out in their rules the necessary requirements to establish confederations, after consulting the most representative occupational organizations. Accordingly, the Committee recalls that provisions which make the establishment of higher level organizations subject to the fulfilment of various excessive conditions are contrary to Article 5 of the Convention (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 191). It urges the Government to ensure that it removes from the applicable legislation in the near future the restrictions relating to the requirement for two-thirds of the members of federations to vote for the establishment of a confederation, so that it is left to the rules of federations to lay down the criteria in this respect. It also requests the Government to provide information on this matter with its next report.

Establishment of trade unions in export processing zones

2. The Committee notes that, according to the information provided by the Government, the resistance of certain enterprises in export processing zones to the establishment of trade unions is an attitude that is now past history, and that the establishment of trade unions is a fact in those enterprises. The Committee also notes that, according to the Government, eight collective agreements have been concluded on conditions of work between enterprises in export processing zones and that there are 148 trade unions dispersed throughout all the export processing zones in the country.

The Committee notes, however, that the Government does not refer to the problems raised concerning the recognition of and respect for trade union protection in export processing zones, as requested in its observation of 1999. It therefore once again requests the Government to provide information on this matter with its next report, as well as on the specific observations made by the ICFTU in respect of trade union rights in these zones.

Observance of trade union rights in sugar cane plantations

3. The Committee notes that, according to the information provided by the Government, since the privatization of the sugar cane plantations sector, there are 38 trade unions in the various branches of sugar cane production.

Requirement of a majority vote to call a strike

4. The Committee notes the Government’s repeated statement that at present the social partners have not reached any agreement with regard to section 407(3) of the Labour Code for the reduction of the statutory minimum requirement for calling a strike. In its report, the Government states that it will convene the Labour Advisory Council so that employers and workers can reach agreement as a basis for the preparation of draft legislation reducing this requirement.

The Committee recalls that the Government should ensure that account is taken only of the votes cast and that the quorum is fixed at a reasonable level (see General Survey, op. cit., paragraph 170). It therefore requests the Government to amend its legislation in this respect and to indicate the progress made in its next report.

Right to organize of employees of autonomous
and municipal state institutions

5. The Committee notes that by Decree No. 559-01 of 18 May 2001, the President of the Republic amended section 142 of Regulations No. 81-94 adopted under the Civil Service and Administrative Careers Act, reducing the minimum number of employees required to be able to establish associations of public servants in each institution under the Executive Authority to 40 per cent. The Committee nevertheless recalls that, by requiring organizations to have a minimum number (or percentage) of members as a condition of registration, restrictions are placed on the right of workers to establish organizations of their own choosing, tantamount to prior authorization, which is contrary to Article 2 of the Convention. The Committee continues to consider that 40 per cent is too high and therefore requests the Government to adapt its legislation accordingly and to provide information on this matter in its next report.