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

1. The Committee notes the Government’s report received in October 2006 and particularly the adoption of the Labour Proclamation No. 377/2003. The Committee recalls the importance of providing regularly detailed and updated information to enable it to examine how effect is given in law and in practice to the provisions of the Convention. The Committee therefore requests the Government to provide information on the manner in which the Convention is applied in practice, including for example, relevant judicial decisions of labour courts involving questions covered by the Convention and available statistics on the number of terminations for economic or similar reasons (Parts IV and V of the report form). It also requests the Government to provide detailed information on the following points.

2. Article 2, paragraphs 2 and 3, of the Convention. Workers engaged under contract of employment for definite period or piece work. The Government refers to sections 9 and 10 of the Labour Proclamation and indicates that all employment contracts that are not listed in section 10(1) are deemed to be for an indefinite period. The Committee asks the Government to indicate what adequate safeguards have been provided against recourse to contracts of employment for a definite period or piece work, the aim of which is to avoid the protection resulting from the Convention (see in this connection Paragraph 3 of Recommendation No. 166).

3. Article 2, paragraph 4. Excluded categories of workers. The Government indicates that the categories of employees enumerated in section 3(2) of the Labour Proclamation No. 377/2003, as amended by the Proclamation No. 494/2006, are excluded from the application of the Convention as they are either covered by specialized legislation, such as civil servants legislation, or their status will be adequately addressed through regulations as stipulated in section 3(3) of the Proclamation. The Committee requests the Government to provide more detailed information on regulations or specialized legislation providing protection at least equivalent to that afforded under the Convention to the categories of workers excluded from the application of this Convention.

4. Articles 4 and 5. Valid reason for termination of employment. The Committee notes that sections 26(1), 27(1), 28(1) and (2) of the Labour Proclamation deal with valid reasons for termination of employment and that sections 14(1)(c), 26(2) and 87(5) deal with invalid reasons for dismissal. The Committee welcomes information on the manner in which these provisions are applied in practice, including copies of labour court decisions.

5. Article 7. Procedure prior to termination of employment. In its report on compliance with this Article of the Convention, the Government refers to a principle in the Labour Proclamation that an employee’s employment may not be terminated unless the employee’s conduct or performance is proven in court and that, if it is terminated earlier, the court may redress the breach. The Committee is unable to find the provisions in the Proclamation that support this. Nevertheless, the Committee recalls that Article 7 requires that workers’ employment shall not be terminated before being provided an opportunity to defend themselves against the allegations made, unless the employer cannot reasonably be expected to provide such an opportunity. The Committee accordingly requests the Government to ensure in law and in practice that workers are afforded the opportunity to defend themselves before having their employment terminated.

6. Article 9, paragraph 2. Burden of proof. The Government notes that section 138(1) gives the courts jurisdiction to settle and determine dismissal and termination of employment disputes. The Committee recalls that under Article 9, paragraph 2, the Government must ensure either that there is a burden of proof resting on the employer to prove a valid reason for the termination or that courts have the power to decide the reason for termination on the basis of the evidence supplied by the parties. The Committee requests the Government to report on the manner in which section 138(1) works in practice and to ensure that these provisions of the Convention are implemented by the courts.

7. Article 12. Severance allowance and other income protection. The Committee notes that a worker who has completed his or her probation is entitled to get a severance pay from the employer only when his or her employment contract has been terminated for one of the reasons listed in section 39(1) of the Labour Proclamation, as amended by the Proclamation No. 494/2006. The Committee recalls that according to Article 12, paragraph 1, any worker whose employment has been terminated can therefore benefit from a severance allowance or separation benefits or from benefits from unemployment insurance or assistance or other forms of social security, or from a combination of such allowance and benefits. The Committee requests the Government to indicate whether effect is given to Article 12, paragraph ,1 by subparagraph (a) or (b) or by a combination thereof.

8. Articles 13 and 14. Terminations of employment for economic, technological, structural or similar reasons. The Committee notes that the Government refers in its report to section 29(3) of the Labour Proclamation which provides that whenever a reduction of the workforce takes place, the employer, in consultation with the trade union or a representative, shall give priority to workers with skills and a higher rate of productivity. The Committee asks the Government to indicate the manner in which effect is given, in law and in practice, to the provisions of Article 13 of the Convention concerning consultations of the workers’ representatives prior to terminations of employment for economic, technological, structural or similar reasons, and to Article 14 concerning notification of these terminations to the competent authority.

[The Government is asked to reply in detail to the present comments in 2009.]