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

The Committee notes the observations dated 29 August 2008 from the International Trade Union Confederation (ITUC), which state that the legislation hampers any possibilities of launching collective bargaining, that the authorities interfere in trade union activities and that migrant workers, particularly domestic workers, and Palestinian workers do not have any trade union rights. The Committee requests the Government to send its comments in reply to these observations.

The Committee notes the information sent in the Government’s report, particularly the statement that, further to comments made on the draft new Labour Code prepared by the tripartite committee established pursuant to Ordinance No. 210/1 of 21 December 2000, a committee was given the task of reviewing the draft in order to include certain amendments concerning collective bargaining and collective agreements. The Committee also notes the indication that the committee in question may include any other amendments received within a reasonable time before submitting the draft Code to the Council of Ministers.

The Committee recalls that its previous comments referred to certain provisions of the draft Labour Code which were received in 2004. The Committee notes that a number of amendments, but not all those suggested, were made at the time to take account of its comments. In the absence of more precise information on the nature of the changes made by the committee recently mandated to review the draft in relation to the matters covered by the Convention, the Committee wishes to reiterate the following points contained in its previous comments and hopes that the Government will take due account of them when finalizing the draft new Labour Code.

Article 4 of the Convention. The Committee previously noted that the draft amendments to the Labour Code reduced the percentage of representation required by a trade union for collective bargaining from 60 to 51 per cent and requested the Government to take the necessary measures to ensure that, if no trade union represents the percentage required to be declared as the exclusive bargaining agent, collective bargaining rights are granted to the most representative unions of the unit concerned, at least on behalf of their members. The Committee recalls that problems may arise when the law stipulates that a trade union must receive the support of 51 per cent of the members of a bargaining unit to be recognized as a bargaining agent since a trade union which fails to secure an absolute majority may be denied the possibility of negotiating (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 241). In its 2006 report, the Government indicated that the Ministry of Labour wished to include a provision in the draft so that trade unions which did not cover 51 per cent of the members concerned would not be deprived of the right to bargain collectively. The Committee trusts that the Government will take the necessary measures to ensure that the draft amendment to the Labour Code will ensure that unions that do not obtain an absolute majority are not denied collective bargaining rights, at least on behalf of their members.

Article 6. In its previous comments, the Committee noted that section 224(c) of the draft amendments to the Labour Code provides with respect to the three public sector enterprises governed by Decree No. 5883 of 1994 (port administration, joint tobacco company and Radio Orient) that, should mediation fail, the dispute will be settled by an arbitration board. The Committee asked the Government to ensure that the draft be amended in such a way that recourse to compulsory arbitration is only at the request of both parties. The Committee notes that the Government indicated in its 2006 report that compulsory arbitration under the terms of this provision is provided for only in cases where a strike might endanger the life, safety or health of all or part of the population, or might cause a serious economic crisis. According to the Government, the adverse consequences of a strike should be eliminated as quickly as possible and so the arbitration board should have the power to decide to stop the strike.

The Committee recalls that, outside the essential services in the strict meaning of the term, arbitration imposed by the authorities or at the request of one party is generally contrary to the principle of the voluntary negotiation of collective agreements established in the Convention. The Committee trusts that the Government will take the necessary measures to ensure that the provisions of the Labour Code concerning dispute arbitration in public sector enterprises (section 224(c) of the draft amendments to the Labour Code) provide that recourse to compulsory arbitration shall only be at the request of both parties and in accordance with the principle reiterated above.

Finally, the Committee notes that the Government indicated in its 2006 report that the draft amendments to the Labour Code provide that workers in public administration, municipalities and state enterprises responsible for administering public services on behalf of the State or on their own behalf, including workers in public sector enterprises governed by Decree No. 5883 of 1994, shall have the right to form trade unions and bargain collectively.

The Committee requests the Government to supply detailed information on the progress made on the draft amendments to the Labour Code and trusts that due account will be taken of its comments. The Committee reminds the Government of the possibility of availing itself of technical assistance from the Office in this respect.