Demande directe (CEACR) - adoptée 2009, publiée 99ème session CIT (2010)

The Committee notes that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

The Committee notes that, under the terms of section 248-11 of the Labour Code, certain action during a strike, such as the occupation of premises, constitutes serious misconduct. The Committee wishes to emphasize that the occupation of premises in the event of a strike should only be deemed as constituting serious misconduct in cases in which the action loses its peaceful nature or in the event of failure to respect the freedom to work of non-strikers, and the right of the enterprise management to enter the premises. In this respect, the Committee requests the Government to amend section 248-11 of the Labour Code to remove the reference to the occupation of premises in the list of acts constituting serious misconduct during a strike so as to bring it into conformity with the principles recalled above. The Committee also recalls that the freedom to work for non-strikers and the freedom of the management of the enterprise to enter into the premises should be granted.

The Committee observes that, by virtue of sections 248-11 and 248-12 of the Labour Code, read in conjunction, participation in an unlawful strike constitutes serious misconduct and those concerned may be liable to criminal prosecution. In this respect, the Committee considers that no one should be deprived of their freedom or be subject to penal sanctions for the mere fact of organizing or participating in a peaceful strike. The Committee also wishes to emphasize that the application of disproportionate penal sanctions does not favour the development of harmonious and stable industrial relations and, if measures of imprisonment are to be imposed at all, they should be justified by the seriousness of the offences committed (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 177). The Committee requests the Government to indicate the penal sanctions which could be imposed under these conditions on striking workers by virtue of section 248-12 of the Labour Code.

The Committee also requests the Government to indicate the body entrusted with deciding whether a strike is unlawful.