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

Article 2 of the Convention. Right of workers and employers, without distinction whatsoever, to establish and join organizations. Previously, the Committee had requested the Government to provide copies of the laws providing for the right to establish and join organizations of judges, as well as temporary and permanently appointed officials in the public service. In this regard, the Committee notes that the Government does not refer to any laws specifically covering the above categories of public employee, but instead reiterates that employees of the legislature and judiciary are not covered by the Common Statutes for Civil Servants. In these circumstances, the Committee recalls that with the exception of the members of the police and the armed forces, the guarantee of the right of association should apply to all workers, including public servants and officials. All public servants and officials should have the right to establish occupational organizations, irrespective of whether they are engaged in the state administration, are officials of bodies which provide important public services or are employed in state-owned economic undertakings (see General Survey of 1994 on freedom of association and collective bargaining, paragraphs 48, 49 and 55). Moreover, all workers, whether they are employed on a permanent or temporary basis, should have the right to establish and join organizations of their own choosing. The Committee therefore asks the Government to take the necessary legislative measures so as to ensure that judges and temporarily and permanently appointed officials in the public service enjoy the right to establish and join organizations. Further noting the Government’s indication that “civil servants of the legislative order” – also excluded from the provisions of the Common Statutes for Civil Servants – are employees of the Secretariats of the National Assembly and Senate, the Committee requests the Government to indicate the legislation which ensures that these categories of public employee enjoy the right to establish and join organizations, and to provide copies of the relevant legislation.

Right of workers to establish organizations without previous authorization  The Committee had previously noted section 268 of the Labour Law concerning the registration procedure and requested the Government to provide details on the registration procedure and, in particular, to indicate whether workers’ and employers’ organizations might be refused registration. The Government indicates, in this regard, that new criteria and procedures relating to registration are set out in Prakas No. 021, dated 15 February 2006. The Government further states that if the authorities do not reply within two months after receipt of an organization’s registration form, the organization is considered to be registered. While noting these indications, the Committee nevertheless observes that Prakas No. 021 of 2006 does not state whether organizations’ requests for registration might be refused, and on what basis. Accordingly the Committee requests the Government to indicate whether workers’ and employers’ organizations might be refused registration and, if that is the case, to indicate the permissible grounds for such a refusal. It further asks the Government to provide details on the registration procedure and to indicate any cases where registration may have been denied.

Article 3. Right to elect representatives freely. The Committee had previously requested the Government to amend section 269(3) of the Labour Law, which disqualifies persons convicted of any crime from being elected to the post of responsible for the administration and management of a professional organization, as well as section 2(3) of Prakas No. 21 of 2006 on the registration of professional organizations, which provides that persons responsible for the leadership and administration of the organization should never have been convicted of any criminal acts, in order to limit this restriction to convictions clearly touching upon the integrity of the person concerned. The Government indicates in this regard that these matters would be addressed in the upcoming Trade Union Law. In these circumstances, the Committee expresses the hope that under the Trade Union Law persons may only be disqualified from holding trade union office for convictions clearly touching upon the integrity of the person concerned. It requests the Government to indicate the progress made with respect to the drafting of the Trade Union Law and to provide it with a copy upon its adoption.

The Committee had also previously requested the Government to amend section 269(4) of the Labour Law, which requires trade union members to be engaged in the profession or the job for at least one year before being elected to trade union office. The Committee notes the Government’s indication that the purpose of that requirement is to ensure that trade union officials possess knowledge and experience. The Government further states that it would consider amending section 269(4), although it did not presently intend to do so. In this regard, the Committee recalls that provisions of this type infringe the organizations’ right to elect representatives in full freedom by preventing qualified persons from carrying out union duties or by depriving unions of the benefit of the experience of certain officers when they are unable to provide enough qualified persons among their own ranks. In order to bring such legislation into conformity with the Convention, it would be desirable to make it more flexible, either by admitting as candidates persons who have previously been employed in the occupation concerned, or by exempting from the occupational requirement a reasonable proportion of the officers of an organization (see General Survey, op. cit., paragraph 117). Accordingly, the Committee requests the Government to amend section 269(4) of the Labour Law in order to bring it into conformity with the Convention, either by exempting from the occupational requirement a reasonable proportion of the officers of an organization, or by admitting as candidates persons who have been engaged in the industry for less than one year and those who have previously been employed in the organization concerned.

Right to strike. Previously, the Committee had requested the Government to amend section 326(1) of the Labour Law, which provides that a minimum service should be arranged in the enterprise where a strike is taking place and if there is no agreement between the parties to the dispute, that the Ministry of Labour shall determine the minimum services in question. The Committee notes the Government’s indication that in drafting the Trade Union Law it would consider defining “minimum services” narrowly, so as to refer only to minimum services to ensure public safety or protection against destruction of productive assets, or in public utilities. The Government further states that it would consider empowering the Arbitration Council or another independent arbitrator to determine minimum services under the Trade Union Law. In these circumstances, the Committee recalls that the authorities may establish a system of minimum service in services which are of public utility 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. Minimum services could be appropriate in situations in which a substantial restriction or a total prohibition of strike action would not appear to be justified and where, without calling into question the right to strike of the large majority of workers, one might consider ensuring that users’ basic needs are met or that facilities operate safely or without interruption (see General Survey, op. cit., paragraphs 160 and 162). The Committee trusts that minimum services provided for under the Trade Union Law will be in keeping with the abovementioned principles. Moreover, the Committee once again requests the Government to take the necessary measures to: (1) amend section 326(2) of the Labour Law, which provides that workers who are required to provide minimum service and who do not appear for such work are considered guilty of serious misconduct; and (2) amend the legislation so as to ensure that any disagreement concerning the establishment of minimum services is settled by an independent body having the confidence of all the parties to the dispute, and not the executive or administrative authority.

Article 5. Right of organization to affiliate with international organizations.  The Committee had previously requested the Government to indicate whether the unions of professional organizations have the right to affiliate with international organizations, and to specify the relevant legislative provisions. The Government states in this respect that although no legal provisions provide for this right at present, in practice many trade unions are affiliated with international organizations. Further noting the Government’s indication that the Trade Union Law would include a provision guaranteeing this right, the Committee requests the Government to indicate the progress made in this regard.