Observation (CEACR) - adoptée 2008, publiée 98ème session CIT (2009)

The Committee notes from the Government’s report that a new Labour Act (Act No. 23/2007) has been adopted.

The Committee observes that some provisions of the Labour Act are not consistent with the Convention:

–      section 149, which allows the central body of the labour administration 45 days within which to register an employers’ or workers’ organization. In the Committee’s view, a protracted registration procedure is a serious obstacle to the establishment of an organization and amounts to a denial of the right of workers and employers to set up organizations of their own choosing. The Committee suggests reducing the time limit to 30 days, for example;

–      section 189, which provides for compulsory arbitration for the essential services listed in section 205 which include the postal service, the loading and unloading of animals and perishable foodstuffs, weather monitoring and fuel supply, and also for export processing zones (section 206 and Decree No. 75/99). The Committee recalls that compulsory arbitration to end  collective labour disputes or strikes is acceptable only when requested by both parties to the dispute or in cases where the strike may be restricted or prohibited, namely in the case of a dispute in the public service involving public servants exercising authority in the name of the State or in essential services in the strict sense of the term, that is, services the interruption of which would endanger the life, personal safety or health of the whole or part of the population. In these circumstances, the Committee takes the view that any disputes that arise in the abovementioned services should not be subject to compulsory arbitration and that they could be dealt with under the mediation and conciliation procedures provided for by law;

–      section 207, which provides that the notice of strike must state the duration of the strike. In the Committee’s view, workers and their organizations should be able, if they so wish, to call an indefinite strike;

–      section 212, which allows a strike to be ended by a decision of the mediation and arbitration body. The Committee considers that this is a decision for the workers and the organizations that called the strike;

–      section 268(3), which provides that any breach of sections 199 (freedom to work of non-strikers), section 202(1) and section 209(1) (on minimum services) constitutes a breach of discipline for which the workers on strike are civilly and penally liable. The Committee reminds the Government that strikes should not be subject to penal sanctions except in the event of non-compliance with prohibitions on strikes that are consistent with the principles of freedom of association, and that any penalty imposed for unlawful activities relating to strikes should be proportionate to the offence or misconduct, and that imprisonment for those organizing or participating in a peaceful strike should be excluded by the authorities.

While noting the Government’s information that the Labour Act was adopted by consensus, that the legislation is undergoing revision and a legal reform technical unit has been set up for the purpose, and that some provisions of the Labour Code that are not consistent with the Convention will be amended in due course with assistance from the ILO, the Committee expresses the hope that these amendments will be made in the near future and will cover all the points it has raised. It requests the Government to provide information in its next report on any measures taken in this regard.

Public servants. In its previous comments, the Committee noted that public servants do not have the right to organize. It noted that according to the Government, the Labour Code does not cover this matter and that through the Ministry of the Public Service a preliminary draft of a general law on public servants has been submitted to Parliament and is to regulate exercise of the right of association by this category of workers. The Committee recalls that in its previous observation it took note of a preliminary draft of a law on the exercise of trade union activities in the public administration and pointed out that the following provisions raised problems of conformity with the Convention:

–      section 2(2), which excludes firefighters, members of the judiciary and prison guards from the scope of the future Act. The Committee recalls that Article 2 of the Convention provides that all workers, without distinction whatsoever, shall have the right to establish and join organizations of their own choosing and that, in accordance with Article 9 of the Convention, only the armed forces and the police may be excluded from the right to organize;

–      section 42(2), which provides that public officials have the right to strike once conciliation, mediation and arbitration procedures have been exhausted. The Committee points out in this connection that compulsory arbitration upon application by only one of the parties in the public administration may be imposed only in the case of public servants exercising authority in the name of the State;

–      section 43, which allows disciplinary, civil and penal sanctions to be imposed when a strike affects the rights and interests of third parties, when it impedes or disrupts exercise of the right to work by officials or employees who are not on strike and when it disrupts the operation of services which are not on strike. The Committee recalls in this connection that sanctions for strike action should be possible only where the prohibitions are consistent with the principles of freedom of association; that applying disproportionate penal sanctions is not conducive to the development of harmonious and stable industrial relations; and that if penalties of imprisonment are to be imposed at all, they should be justified by the seriousness of the offences committed and should be subject to regular judicial review. In any event, a right of appeal should exist in this respect (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 177);

–      section 46(2), which establishes sentences of imprisonment and fines in instances where a strike picket obstructs the freedom of services to operate normally. The Committee refers the Government in this connection to the principle set forth in the previous paragraph.

In these circumstances, the Committee expresses the hope that the preliminary draft of the general law on public servants which will regulate the right of association and which is before Parliament, will be in full conformity with the Convention. The Committee requests the Government to provide information in its next report on the progress of this draft legislation.

Comments by workers’ organizations. In its previous observation, the Committee noted comments by the International Confederation of Free Trade Unions (ICFTU) referring to large-scale dismissals of workers in export processing zones as a reprisal for exercising the right to strike, and asked the Government to send detailed information on the circumstances in which the strike took place, the authority that declared the strike to be unlawful and the authority that allowed the dismissals. The Committee notes the Government’s response that in the case of the two strikes referred to by the ICFTU: (1) there was breach of the requirements, set in section 9 of Decree No. 75/99 of 12 October regulating working conditions in industrial export processing zones, concerning compulsory arbitration, which may be imposed ex officio by the labour administration body and prior notification of strikes, and the stipulation that strikes may be called only by the provincial or national union after confirmation from the Industrial Export-Processing Zone Council that minimum services are guaranteed; and (2) the workers dismissed filed a complaint with the Labour Court. The Committee reminds the Government that enterprise unions should likewise be able to exercise the right to strike, and refers the Government to its comments on compulsory arbitration. It recalls that dismissals of strikers on a large-scale involve a serious risk of abuse and place freedom of association in grave jeopardy. It hopes that in reviewing the dismissals in question, the judicial authorities will take into consideration the comments on the legislation.

Lastly, the Committee notes the comments of 29 August 2008 by the International Trade Union Confederation (ITUC) on the application of the Convention, and serious acts of violence against workers on strike in the sugar cane plantation sector. The Committee requests the Government to send its comments thereon.