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

The Committee notes the Government’s report and its reply to the comments from the International Trade Union Confederation (ITUC) dated 27 August 2007. The Committee recalls that these comments were concerned with acts of anti-union violence, particularly a number of demonstrating workers who were reportedly injured and one detained by the police for having asked their employer to comply with an arbitration award which recognized the violation of their rights. The Committee regrets that the Government categorically denies these allegations without indicating whether an investigation had been undertaken. In this regard, the Committee recalls that it has previously emphasized that, when disorders have occurred involving loss of human life or serious injury, the setting up of an independent judicial inquiry is a particularly appropriate method of fully ascertaining the facts, determining responsibilities, punishing those responsible and preventing the repetition of such actions (see General Survey on freedom of association and collective bargaining, 1994, paragraph 29). The Committee also notes the recent comment from the ITUC, dated 29 August 2008, regarding legislative matters which are already under examination and containing allegations of acts of interference from the Government in trade union affairs and also acts of intimidation and violence against strikers on 5 June 2007. The Committee requests the Government to send its observations concerning these new comments from the ITUC. The Committee also notes Case No. 2581 examined by the Committee on Freedom of Association, in the context of which serious violations of trade union rights are alleged (see 351st Report). The Committee reiterates that it has been making comments on the following points for a number of years.

Article 2 of the Convention. Right of workers and employers without distinction whatsoever to establish and join organizations without prior authorization. The Committee previously observed that, under section 294(3) of the Labour Code, fathers, mothers or guardians may oppose the right to organize of young persons under 16 years of age. The Committee recalls that Article 2 guarantees all workers, without distinction whatsoever, the right to establish and join organizations. The Committee expresses the firm hope that section 294(3) will soon be amended to guarantee the right to organize to minors who have reached the legal minimum age (14 years) for access to the labour market, either as workers or as apprentices, without parental or guardian authorization being necessary. The Committee requests the Government to provide information in its next report on all measures adopted in this regard.

Article 3. Right of workers’ and employers’ organizations to organize their administration and activities in full freedom. The Committee previously noted that section 307 of the Labour Code provides that the accounts and supporting documents relating to the financial transactions of trade unions must be submitted without delay to the labour inspector, when so requested. The Committee notes that the Government indicates in this regard that the Labour Code indeed provides for inspecting the financial operations of trade unions but that in practice neither labour inspectors nor controllers perform this activity. The Committee reiterates once again that inspection by the public authorities of trade union finances should not go beyond the organizations’ obligation to submit periodic reports. The Committee requests the Government to take the necessary steps to amend section 307 of the Labour Code taking account of the abovementioned principle. The Committee also requests the Government once again to send copies of the instructions issued by the Director of labour and social security with regard to the inspection of the financial transactions of trade unions.

The Committee recalls that, in its previous comments, it requested the Government to take the appropriate measures to repeal or amend Decree No. 96/PR/MFPT/94 of 29 April 1994 in order to ensure full observance of the principles of freedom of association in the exercise of the right to strike in the public service. The Committee notes that the Government indicates that this Decree was repealed and replaced by Act No. 008/PR/07 of 9 May 2007 regulating the exercise of the right to strike in the public service. In this regard, the Committee raises the following points.

–      Section 11(3) of the Act imposes the obligation to declare the “possible” duration of a strike. However, the Committee notes that, under section 13(1), non-compliance with this condition would result in an illegal strike. The Committee recalls that trade unions should be able to declare strikes of unlimited duration and considers that the legislation should be amended to this effect. The Committee requests the Government to indicate the measures taken to this end.

–      The Committee notes that strikes are permitted in “essential” public services, as listed in section 19 of the Act, on condition that a minimum service is provided (section 18). The Committee notes that, under sections 20 and 21, it is the public authorities (the Minister concerned) who have the discretion to determine the minimum services and the number of officials and employees who will ensure that they are maintained. In this regard, the Committee recalls that such a service should meet at least two requirements. Firstly, and this aspect is paramount, it must genuinely and exclusively be a minimum service, i.e. one which is limited to the operations which are strictly necessary to meet the basic needs of the population or the minimum requirements of the service, while maintaining the effectiveness of the pressure brought to bear. Secondly, since this system restricts one of the essential means of pressure available to workers to defend their economic and social interests, their organizations should be able, if they so wish, to participate in defining such a service, along with employers and the public authorities. The parties might also envisage the establishment of a joint or independent body responsible for examining rapidly and without formalities the difficulties raised by the definition and application of such a minimum service and empowered to issue enforceable decisions (see General Survey, op. cit., paragraphs 160 and 161). The Committee therefore requests the Government to amend the legislation to ensure that the minimum service is limited to the operations which are strictly necessary to avoid jeopardizing the life or normal living conditions of all or part of the population, that the workers’ organizations concerned should be able to participate in defining such a service, along with the employers and the public authorities, and to indicate developments in this regard.

–      Section 22(1) provides that any refusal by officials or employees to comply with requisition orders (sections 20 and 21) makes them liable to the penalties provided for by sections 100 and 101 of Act No. 017/PR/2001 issuing the general public service regulations. In this regard, the Committee notes that these legislative provisions describe the degrees of disciplinary penalties imposed by order of gravity, but without indicating those which correspond to the different degrees of fault. The Committee requests the Government to clarify the scope of penalties for contraventions of legal provisions and also requests it to indicate any other penalties which can be imposed for violations of Act No. 008/PR/2007 regulating the exercise of the right to strike in the public service.