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

The Committee previously asked the Government to reply to the observations of the International Confederation of Free Trade Unions, dated 10 August 2006, relating to problems in giving effect to the Convention in practice (registration applications blocked at the Office of the Public Prosecutor and pressure from the public authorities in favour of a trade union organization). The Committee notes that, in its reply, the Government refutes the observations made by the ICFTU concerning the blocking of trade union registrations at the Office of the Public Prosecutor and points out, as an example, the recent registration (March 2008) of a tenth trade union confederation. The Committee also notes the observations of the International Trade Union Confederation (ITUC), dated 29 August 2008, which relate to legislative matters already raised by the Committee.

In its previous comments, the Committee asked the Government to take the necessary measures to amend its legislation so as to bring it into full conformity with the Convention.

Article 2 of the Convention. Right of workers to establish and join organizations of their own choosing, without previous authorization. The Committee previously asked the Government to amend section 269 of the Labour Code in order to remove any obstacles that prevent minors who have access to the labour market from exercising the right to organize. In its reply, the Government maintains that parental authorization was deemed necessary to protect minors and that this position does not contradict the provisions of the Convention. The Committee is bound to recall that, under Article 2 of the Convention, the minimum age for joining a trade union in full freedom must be the same as that established for admission to employment, without the permission of the parents or guardian being necessary. The Committee therefore trusts that the Government will take the necessary measures without delay to amend section 269 of the Labour Code in order to guarantee the right to organize of minors who are of the minimum legal age for admission to employment (14 years according to section 153 of the Labour Code), whether as workers or as apprentices, without the permission of their parents or guardians being necessary.

Furthermore, the Committee has been making comments for several years on the need to ensure the exercise of freedom of association of magistrates. The Committee notes that the Government reiterates that magistrates are not allowed to set up trade union organizations but may form neutral associations for the defence of their material and moral interests. In this regard, the Committee is bound to recall that magistrates are not covered by the exceptions allowed by Article 9 of the Convention and that they ought to enjoy, like all other categories of workers, the right to establish and join trade unions of their own choosing, in accordance with Article 2 of the Convention. The Committee therefore trusts that the Government will take the necessary measures without delay to ensure that magistrates enjoy the right to establish and join occupational organizations of their own choosing and will indicate all measures taken or envisaged in this regard.

Article 3. Right of workers’ organizations to elect their representatives in full freedom and to organize their administration and activities without interference from the public authorities. In its previous comments, the Committee noted that section 278 of the Labour Code extends the procedure for the establishment of trade unions to any changes in their administration or management, and therefore has the effect of subjecting such changes to the approval, either of the Prosecutor-General or of the courts. The Committee indicated that this provision therefore gives rise to serious risks of interference by the public authorities in the organization and activities of trade unions and their federations. It recalled that the establishment or amendment of the statutes of an organization of workers is the responsibility of the organization itself and should not be subject to the prior consent of the public authorities in order to take effect. It therefore asked the Government to amend section 278 of the Labour Code so as to provide that any change in the administration or management of a union may take effect as soon as the competent authorities have been notified and without the requirement of their approval.

Compulsory arbitration. In its previous comments, the Committee observed that sections 350 and 362 of the Labour Code allow compulsory arbitration in instances which go beyond essential services in the strict sense and in situations which cannot be deemed to constitute an acute national crisis. The Committee recalled that the prohibition or restriction of the right to strike by means of compulsory arbitration can be justified only in the cases of: (1) 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; (2) an acute national crisis, and then only for a limited period and to the extent necessary to meet the requirements of the situation. The Committee therefore asked the Government to amend the relevant sections of the Labour Code so as to limit the prohibition on strikes by means of compulsory arbitration only to essential services in the strict sense of the term and to situations of acute national crisis.

Duration of mediation. In its previous comments concerning the prohibition on strikes for the duration of the mediation procedure established under section 362 of the Labour Code, the Committee recalled that it was possible to require the exhaustion of conciliation and mediation procedures before a strike may be called, on condition that the procedures are not so complex or slow that a lawful strike becomes impossible in practice or loses its effectiveness. However, the Committee considered that the maximum period of 120 days for mediation provided for in section 346 of the Labour Code was too long. The Committee therefore asked the Government to indicate the measures taken or envisaged to amend section 346 of the Labour Code.

The Committee notes that the Government indicates in its report that activities have recently been carried out with technical support from the Office aimed at validating various draft texts implementing the Labour Code. It adds that the amendments requested to the sections of the Labour Code which are the subject of comments by the Committee (sections 278, 350–362, 346, etc.) could be examined in the process under way of revising the texts implementing the Labour Code. The Committee notes these indications and hopes that the Government’s next report will give an account of concrete progress made in the revision of the Labour Code (through the adoption of implementing texts or any other measures) to bring it into full conformity with the Convention. The Committee trusts that the Government will take due account of all the points raised and hopes that the technical assistance provided to the Government by the Office will continue with regard to these matters.

The Committee is addressing a direct request to the Government on other matters.