Observation (CEACR) - adoptée 2003, publiée 92ème session CIT (2004)

The Committee notes the Government’s report and its reply to the comments made by the International Confederation of Free Trade Unions (ICFTU) in 2002, which referred among other matters to the disregard for trade union rights in export processing zones and sugar cane plantations.

The Committee 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 40 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

The Committee notes that the Government reiterates its previous comment concerning the need for 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 agreement has not been reached on this matter. The Government once again undertakes to continue to seek an agreed solution.

The Committee notes that sections 383 and 388 of the Labour Code require the agreement of two federations, supported by the votes of two-thirds of their members, to establish a confederation. 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). The Committee once again urges the Government to ensure that in the near future it removes from the applicable legislation 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 establish the criteria in this respect. The Committee also requests the Government to provide information on this matter with its next report.

Establishment of trade unions in export processing zones

The Committee notes that, according to the information provided by the Government, trade unions may be freely established in accordance with the provisions of Act No. 16-92 issuing the Labour Code and that eight collective agreements have been concluded on working conditions between enterprises in export processing zones and their trade unions, and that there are approximately 148 trade unions dispersed throughout the export processing zones in the country. With regard to the issue of trade union protection, raised by the ICFTU in its comments, the Committee notes that Title X of the Labour Code requires compliance with trade union protection and that the General Directorate of Labour of the Secretariat of State for Labour ensures compliance with trade union rights through the organization of training workshops. The Government admits the existence of isolated cases which are duly investigated and punished. The Committee requests the Government to continue ensuring that the right to organize and trade union protection are duly guaranteed in practice in export processing zones and requests it to continue providing information on this subject.

Observance of trade union rights in sugar cane plantations

With regard to the observance of trade union rights in sugar cane plantations, in relation to which the Government had indicated that 38 trade unions had been established in the various branches since the privatization of the sector, the Committee notes that, according to the comments of the ICFTU, trade union leaders do not enjoy freedom of movement in plantations to meet workers and that workers carrying out trade union activities are under threat. The Committee regrets to note that the Government has not provided any comments on this matter. The Committee considers that when their activities in relation to the persons that they represent so require, the leaders of workers’ organizations should have the right of access to sugar cane plantations in order to meet workers. The Committee requests the Government to take measures to guarantee in practice access to sugar cane plantations and the right of assembly of trade union leaders and workers, in accordance with the principles set forth in the Convention. The Committee requests the Government to keep it informed of developments in the situation.

Requirement of a majority vote to call a strike

The Committee notes the Government’s repeated statement that the social partners did not reach agreement on the amendment of section 407(3) of the Labour Code to reduce the statutory minimum requirement for calling a strike.

The Committee recalls once again 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). The Committee therefore urges the Government to amend this aspect of its legislation and to indicate the progress made in this respect in its next report.

Right to organize of employees of autonomous
and municipal state institutions

The Committee recalls that 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 enterprises (see General Survey, op. cit., paragraph 49). The Committee requests the Government to take the necessary measures to ensure that the laws and the regulations governing these organizations explicitly allow workers in autonomous state institutions to organize and to guarantee that the other rights set forth in the Convention are guaranteed.

Obstacles to the establishment of trade unions of public
servants (requirement of 40 per cent of all employees)

With regard to the requirement of 40 per cent of employees to establish associations of public servants (section 142 of Regulation No. 81-94 adopted under the Civil Service and Administrative Careers Act, as amended by Decree No. 559-01, dated 18 May 2001), which the Committee considers to be too high and which could result in a situation of trade union monopoly, the Committee notes the Government’s indication that this provision will be examined. The Committee recalls that the requirement of a minimum number of members should be maintained within reasonable limits so as not to prevent the establishment of organizations and it therefore requests the Government to adapt its legislation accordingly and to provide information on this matter with its next report.