Demande directe (CEACR) - adoptée 2006, publiée 96ème session CIT (2007)

The Committee takes note of the information in the Government’s report.

Article 2 of the Convention. 1. The Committee noted in its previous comments that under section 269 of the new Labour Code, young persons of 16 years of age may join a trade union unless their membership is opposed by the person vested with parental authority. The Committee notes from the report that the Government believes that parental authority was deemed necessary in order to protect young persons against acts of violence liable to occur when trade unions hold elections. The Committee reminds the Government that the minimum age for joining a trade union in full freedom must be the same as that established for admission to employment, and again asks the Government to amend section 269 of the Labour Code in order to remove any obstacles that prevent young people who have access to the labour market, whether as workers or as apprentices, from exercising the right to organize without the need for parental authorization.

2. With reference to its previous comments on the public service, the Committee notes the information sent by the Government to the effect that the exclusion from the scope of the Labour Code of public servants and contractual employees of the State and public establishments (section 1) does not apply to the establishment, organization and running of their unions. The Committee notes, however, that the Government confirms that magistrates are not allowed to set up trade union organizations, but may form mutual associations for the defence of their material and moral interests. The Committee reminds the Government that magistrates are not covered by the exceptions allowed by Article 9 of the Convention and that they ought, therefore, like all other categories of workers, to have the right to establish and join trade unions of their own choosing. It accordingly asks the Government to take measures to ensure that magistrates have the right to establish and join occupational organizations of their own choosing. Please report on all measures taken or envisaged to this end.

Article 3. 1. In its previous comments, the Committee noted that section 273 of the new Labour Code establishes that membership of a trade union is a requirement for eligibility to hold office as a manager or administrator of the union and that, under section 268 of the new Code, only workers belonging to the occupation represented and defended by the union may be members of it. The Committee points out 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 or by depriving unions of the experience of certain officers when they are unable to provide enough qualified persons from among their own ranks. It asks 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. In its report, the Government indicates that unions usually have technical advisers who also fulfil the role of permanent officers and that they are recruited from among lawyers and retired labour inspectors. The Government adds that this issue may be examined in the committee responsible for drafting the implementing legislation for the Labour Code. The Committee requests the Government to keep it informed of all measures taken in this regard.

2. In its previous comments, the Committee noted that section 359 of the new Labour Code provides that the exercise of the right to strike may not be accompanied by occupation of the workplace or its immediate surroundings, under penalty of the penal sanctions established by Book VIII of the Code. The Committee also noted that according to 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 serious misconduct giving grounds for dismissal without entitlement to compensation in lieu of notice, severance allowance or damages.

The Committee notes in this connection the Government’s statement in its report that to prevent non-striking workers from exercising their right to work is a non-peaceful act under section 359. The Committee reminds the Government that the right to strike must be exercised in observance of the freedom to work of non-strikers, but that restrictions on strike pickets and workplace occupations should be limited to cases where the action ceases to be peaceful. The Committee requests the Government once again to take the necessary measures to amend section 359 so as to limit the prohibition and, hence, the possibility of dismissing workers, to cases in which the action is not peaceful.