Demande directe (CEACR) - adoptée 2005, publiée 95ème session CIT (2006)

The Committee notes the Government’s report.

Article 2 of the Convention. Right of workers, without distinction whatsoever, to establish trade union organizations. In its previous comments, the Committee noted that the Constitution, the Labour Code and the Trade Union Rights Act referred to right of "citizens" to join and form trade unions and that section 113.2 of the Labour Code provided that regulations governing the employment of foreign citizens should be adopted by the Government. The Committee asked the Government to send the regulations adopted in this respect, including the provisions related to foreign workers’ right to organize. Noting that no information was provided by the Government in this respect, the Committee requests that the Government indicate whether the right to organize is guaranteed to foreign workers and asks it to send the relevant legislative provisions in this respect.

The Committee previously noted that, according to article 15, paragraph 1, of the Law on Government Service and the information in the Government’s report, it would appear that government administrative employees (governing and executives posts) did not enjoy the right to organize and it has asked the Government to indicate the manner in which all workers, including managerial level public servants, were ensured the right to organize. The Committee notes that the Government reiterates its previous statement to the effect that, while the state special or administrative services officers have the right to organize, public administrative officers do not enjoy such a right. The Committee therefore requests that the Government take the necessary measures in order to ensure that senior officials and public servants holding managerial or supervisory positions of trust should be entitled to establish their own organizations.

Article 3. The right of workers’ organizations to organize their activities and to formulate their programmes. Noting that the Government’s report contains no information on the matters raised in its previous observation, the Committee hopes that the next Government’s report will contain full information on the following issues.

1. Third-party intervention. The Committee notes that section 10.1 of the Labour Code prohibits third-party involvement in collective bargaining, under penalty of a fine established in section 141.1.10 and that section 120.9 prohibits third parties from organizing a strike also under penalty of a fine. Considering that these prohibitions constitute a serious restriction on the free functioning of trade unions, the Committee requests the Government to indicate the measures taken or envisaged to amend these two sections of the Labour Code so that unions may have recourse to third persons where necessary in the organization of their activities, negotiation of their agreements and organization of industrial action.

2. Sympathy strikes. The Committee further notes that section 120.9 noted above would appear to have the impact of prohibiting sympathy strikes. In this respect, the Committee recalls that workers should be able to engage in sympathy strikes, provided the initial strike they are supporting is itself lawful (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 168). The Committee requests that the Government confirm whether sympathy strikes are indeed prohibited under this section and, if so, to indicate in its next report the measures taken or envisaged to amend this section so as to ensure that workers will not be punished for engaging in sympathy action when the initial strike is lawful.

3. Strike duration. The Committee also notes that section 120.4.2 requires that strike notice includes an indication of the duration of the strike. The Committee considers that a requirement that the duration of a strike be announced when giving strike notice is contrary to the right of workers’ organizations to organize their activities and formulate their programmes in full freedom. The right to strike is, by definition, a means of pressure available to workers and their organizations for the promotion and defence of their economic and social interests. The Committee therefore asks the Government to amend its legislation so as to ensure that no legal obligation to notify the duration of a strike is imposed on workers’ organizations and to keep it informed of measures taken or envisaged to repeal this requirement.