Observation (CEACR) - adoptée 2007, publiée 97ème session CIT (2008)

The Committee notes the Government’s report. The Committee regrets that the Government failed to provide its observations on the comments of the International Confederation of Free Trade Unions (ICFTU, now ITUC – International Trade Union Confederation) concerning restrictions imposed on the right to strike and the alleged violation of trade union rights in practice. The Committee once again requests the Government to provide its observations thereon.

In its previous observation, the Committee had noted that the Labour Code was amended in 2006 and that several of its previous recommendations were not reflected in the amended Code. The Committee therefore once again requests the Government to take the necessary measures to modify the following sections of the Labour Code so as to bring it into conformity with Article 3 of the Convention:

–      section 410 of the Labour Code, so as to repeal the obligation to indicate the duration of a strike;

–      section 412 of the Labour Code, so as to ensure that any disagreement concerning minimum services in organizations responsible for safety, health and life of people and vital interests of society, where the minimum services must be ensured during a strike, is settled by an independent body having the confidence of all parties to the dispute and not the executive body;

–      section 413 of the Labour Code, so as to ensure that, when a strike is prohibited, any disagreement concerning a collective dispute is settled by an independent body and not by the Government.

The Committee further notes from the Government’s report that the right to strike is restricted or prohibited in the following services: postal services (section 9 of the Federal Postal Service Act of 17 December 1994), municipal services (section 11(1(10)) of the Federal Municipal Services Act of 8 January 1998) and railways (section 26 of the Federal Rail Transport Act of 10 January 2003), which the Committee does not consider essential, i.e. those services the interruption of which would endanger the life, personal safety or health of the whole or part of the population and in which restrictions and even prohibition may be justified. The Committee is of the opinion that 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 impose an outright ban on strikes, which should be limited to essential services in the strict sense of the term. In the view of the Committee, such a service should meet at least two requirements. Firstly, and this aspect is paramount, 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. It would be highly desirable for negotiations on the definition and organization of the minimum service not to be held during a labour dispute, so that all parties can examine the matter with the necessary objectivity and detachment. The parties might also envisage the establishment of a joint or independent body responsible for examining rapidly and without formalities the difficulties raised by the definition and application of such a minimum service and empowered to issue enforceable decisions (see General Survey of 1994 on freedom of association and collective bargaining, paragraphs 160–161). The Committee therefore requests the Government to take the necessary measures to amend its legislation so as to take into account the abovementioned principle.

The Committee notes that no information was provided by the Government in respect of the right to strike of public servants not exercising authority in the name of the State (previously prohibited by section 11 of the Law on fundamentals of state employment). In this regard, the Committee notes that the Law on civil service of 27 July 2004 repealed the Law on fundamentals of state employment. While the new law does not seem to expressly prohibit the right to strike in civil service, the Committee notes that section 18(6) stipulates that “civil servants must observe restrictions imposed on civil servants by the legislation”. The Committee requests the Government to indicate whether there are any legislative restrictions imposed on the right to strike of civil servants other than civil servants exercising authority in the name of the State.

Finally, the Committee notes the Government’s indication that the Ministry of Health and Social Development, together with the federal government authorities concerned and the social partners, was currently engaged in work to amend specific legislative acts so as to bring them into conformity with the recommendations of the ILO. The Committee hopes that further legislative reform will take into account its previous comments and requests the Government to keep it informed of any further developments in this respect.

The Committee is addressing a request concerning other matters directly to the Government.