Demande directe (CEACR) - adoptée 2004, publiée 93ème session CIT (2005)

With reference to its observation, the Committee requests the Government to provide information on the following matters.

Article 2 of the Convention. 1. The Committee notes that, under the terms of section 269 of the new Labour Code, young persons aged 16 years of age may join a trade union unless their membership is opposed by the person vested with parental authority. Furthermore, section 153 provides that children may not be engaged, even as apprentices, before the age of 14 years or where, when they have passed this age, they are still subject to compulsory schooling. Moreover, with the exception of employment in maritime fishing, children who have reached 12 years of age may, under certain conditions, be employed in establishments in which members of their family are engaged. The Committee notes that young workers under 16 years of age are excluded from the right to organize, while those who are 16 years old may only exercise this right subject to certain conditions. The Committee recalls that the minimum age for the membership of a trade union in full freedom must be the same as that established for admission to employment. It therefore requests the Government to amend section 269 of the Labour Code so as to guarantee the right to organize of young persons who have access to the labour market in compliance with the conditions set out in the Labour Code, both as workers and apprentices, without the need for parental authorization.

2. The Committee recalls that in its previous comments it requested the Government to provide further information on the establishment of occupational organizations, particularly in the sectors of small-scale fishing and agriculture (market gardeners in Nouakchott and Nouadhibou). The Committee notes the indication in the Government’s report that the Federation of Agricultural and Stock-raising Workers of Mauritania (FAEM) and the National Fishing (Small-Scale and Industrial) Federation are emanations of occupational organizations and exercise their activities freely.

3. With regard to the public service, the Committee notes that, under section 1 of the new Labour Code, public officials appointed to a permanent post in the framework of a public administration and contractual employees of the State and public administrative establishments are excluded from the scope of application of the Labour Code. The Committee notes that under sections 18 and 107 of Act No. 93-09, of 18 January 1993, applicable to public servants and contractual employees of the State and public administrative establishments, such workers enjoy the right to organize. However, these sections also provide that the trade unions of public servants and contractual employees are governed by the provisions of the Labour Code. The Committee requests the Government to confirm that the exclusion contained in section 1 of the new Labour Code concerning public servants and contractual employees does not apply to the establishment, organization and operation of their trade unions. The Committee also notes that magistrates are excluded from the scope of application of Title 1 of the Act of 1993, granting the right to organize to public servants. The Committee requests the Government to indicate the text of the law which grants magistrates the right to establish and join trade union organizations of their own choosing.

Article 3. 1. The Committee notes that section 273 of the new Labour Code establishes that membership of the trade union is a requirement for eligibility to hold office in the management or administration of a trade union. The Committee also notes that, under section 268 of the new Labour Code, only workers belonging to the occupation represented and defended by the trade union may be members it. The Committee recalls that the combination of these two conditions may infringe the right of organizations to elect their representatives in full freedom by preventing the election of qualified persons, such as full-time union officers or by depriving unions of the experience of certain officers when they are unable to provide enough qualified persons from among their own ranks (see General Survey on freedom of association and collective bargaining, 1994, paragraph 117). The Committee therefore requests the Government to make the eligibility conditions more flexible, for example by exempting from the occupational requirement a reasonable proportion of the officers of an organization.

2. The Committee notes that section 359 of the new Labour Code provides that the exercise of the right to strike may not be accompanied by the occupation of the workplace or its immediate surroundings, subject to the possible imposition of penal sanctions established by Book VIII of the Labour Code. In this respect, the Committee notes that, under section 445, a striking worker who has occupied the workplace or its immediate surroundings in a manner which is not peaceful shall be liable to a fine and/or a sentence of imprisonment of between two weeks and four months. Furthermore, under section 361, if a worker, during the course of a strike, even where it is lawful, is in breach of the obligations and prohibitions set forth in section 359, she or he is guilty of a grave fault giving grounds for dismissal without entitlement to compensation in lieu of notice, severance allowances or damages.

The Committee emphasizes that restrictions on strike pickets and workplace occupations should be limited to cases where the action ceases to be peaceful (see General Survey, op. cit., paragraph 174). The Committee requests the Government to amend section 359 so as to limit the prohibition and, as a consequence the possibility of dismissing workers, to cases in which the action is not peaceful.

With regard to penal sanctions in the case of action which is not peaceful, as envisaged in section 445, the Committee recalls that, where certain prohibitions of, or restrictions on, the right to strike which are in conformity with the principles of freedom of association sometimes provide for civil or penal sanctions against strikers and trade unions which violate these provisions, such sanctions should not be disproportionate to the seriousness of the violations (see General Survey, op. cit., paragraph 178). The Committee requests the Government to keep it informed of any application in practice of section 445 to workers participating in strike pickets.

3. The Committee notes that under section 360 of the new Labour Code, the competent administrative authority may at any time requisition employees of private enterprises, public services, enterprises or establishments occupying posts that are essential to the security of persons and property, the maintenance of public order, the continuity of public services or the satisfaction of the essential needs of the nation. The competent authority shall establish the conditions and procedures for the requisitioning of workers in the posts concerned. In this respect, the Committee notes the copy provided by the Government of the joint Order of 6  June 2004, issued by the Minister of the Interior, Posts and Telecommunications and Minister of the Public Service and Employment "determining the list of establishments considered to be essential services for the population which could be concerned by requisitioning as envisaged by Act No. 70-029 of 23 January 1970". Section 1 of the Order of 6 June 2004 defines as essential services or establishments the armed and security forces, civil protection services, water and electricity services, telecommunication services, health and social services, sanitation, waste-water treatment and rubbish collection services. The Committee notes that the Ministers of the Interior, Posts and Telecommunications and the Public Service and Employment may update this list whenever necessary.

The Committee recalls that requisitioning is not desirable except: (1) in the event of an acute national crisis; (2) in the case of public servants exercising authority in the name of the State; and (3) in the case of the maintenance of essential services in the strict sense of the term, that is those of the interruption of which would endanger the life, personal safety or health of the whole or part of the population. In this respect, the Committee notes that the list determined by the Order of 6 June 2004 appears compatible with the Convention and hopes that any further revision will remain limited to essential services in the strict sense of the term. The Committee requests the Government to keep it informed in this respect.

However, the Committee notes that under section 360 the requisitioning of employees is not limited to workers occupying posts that are essential for the fulfilment of essential needs and that the Order pre-dates the Labour Code. The Committee therefore requests the Government to indicate whether the Order of 6 June 2004 can nevertheless be considered as determining the list of posts envisaged by section 360 and, if so, whether it is the sole list that exists or whether other lists have been adopted or are envisaged. The Committee requests the Government to provide any texts issued under section 360 so that it can examine their compatibility with the Convention. With regard to the reference to the continuity of public services set out in section 360, and while awaiting further information on the determination of the list of posts concerned by requisitioning, the Committee draws the Government’s attention to the following considerations. 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 other services which are of public utility rather than imposing an outright ban on strikes. Such a minimum service should meet at least two requirements. Firstly, it must genuinely and exclusively be a minimum service, that is one which is limited to the operations which are strictly necessary to meet the basic needs of the population or the minimum requirements of the service, while maintaining the effectiveness of the pressure brought to bear. Secondly, since this system restricts one of the essential means of pressure available to workers to defend their economic and social interests, their organizations should be able, if they so wish, to participate in defining such a service, along with employers and the public authorities (see General Survey, op. cit., paragraphs 160 and 161).

Article 5. The Committee notes that under section 290, lawfully established occupational trade unions may constitute federations freely in any form whatsoever, including federations and confederations, at the local, regional or national levels. The Committee requests the Government to indicate whether federations and confederations have the right to affiliate freely with international organizations of workers, in accordance with Article 5.