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

1. The Committee notes with regret that the Government has not provided any information on the application of the Convention since its first report received in December 2003, which referred in particular to Labour Code Order No. 24 of 1992 and the Labour Code (Codes of Good Practice) Notice, 2003. The Committee recalls the importance of regularly providing precise and up to date information so that it can assess the extent to which effect is given to the provisions of the Convention. The Committee trusts that the Government will be in a position to supply a report containing precise and up to date information, particularly in reply to the points raised in the Committee’s 2004 direct request, which referred to the matters below.

2. Article 2, paragraph 3, of the Convention. Adequate safeguards against recourse to contracts of employment for a specified period of time. Please provide copies of any additional legislation or relevant case law which indicates that adequate safeguards are provided against recourse to contracts of employment for a specified period of time which are aimed at avoiding the protection resulting from the Convention, and specifically to clarify the position in law and in practice with respect to trainees and apprentices.

3. Article 2, paragraphs 4 and 6. Categories of employed persons excluded from the scope of the Convention. The Committee previously noted that the Labour Code excludes from its scope members of the armed forces, the police force and “any other disciplined force within the meaning of Chapter II of the Lesotho Independence Order of 1966” (section 2(2)(a)). It further noted that other public servants have also been excluded by the Labour Court (Exemption) Order No. 22 of 1995. Please provide copies of the provisions which govern protection against termination of employment for these categories of workers and indicate whether the organizations of employers and workers concerned were consulted on such exclusions. Please also continue to provide information in subsequent reports on the effect that has been given, or is proposed to be given, to the Convention in respect of public servants, workers on probation and trainees or apprentices.

4. Article 4. Valid reason for termination. Please continue to supply information on how the provisions in section 19(2) of the Code of Practice on legitimate reasons for termination based on operational requirements of the undertaking are applied in practice.

5. Article 9, paragraph 3. Burden of proof. Please provide information on the effect given in practice to the requirement for a judicial examination of terminations for economic or similar reasons, as well as on whether the reasons invoked by employers are sufficient reasons to justify termination for economic or similar reasons.

6. Article 14. Notification to the competent authority. The Government stated in its report that effect is given to this provision of the Convention only through the “practice of some companies”. The Government is requested to submit information on how it is ensured that effect is given to this provision in practice.

7. Part V of the report form. Application of the provisions of the Convention in practice. Please provide general information on the manner in which the Convention is applied in practice, including on the consultations with workers’ representatives in case of terminations for reasons of an economic, technological, structural or similar nature (Article 13, paragraph 1), and available statistics on the activities of the Directorate of Dispute Prevention and Resolution and of the Labour Court of Appeal (Article 8) (number of appeals against unjustified termination, the outcome of such appeals, the nature of the remedy awarded and the average time taken for an appeal to be decided).

[The Government is asked to reply in detail to the present comments in 2008.]