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

The Committee notes the Labour Act No. 5 of 2007, which replaces the Labour Act No. 12 of 1990, and wishes to raise in this respect, the following points.

Scope of the Convention. The Committee recalls that it had previously requested the Government to guarantee that the rights afforded by the Convention were ensured for workers engaged in the prison service, domestic service and civil servants not engaged in the administration of the State. The Committee regrets that the new Labour Act does not apply to the abovementioned categories of workers (section 3(2)). The Committee recalls that only the armed forces, the police and public servants engaged in the administration of the State can be excluded from the guarantees of the Convention. The Committee requests the Government to ensure that the rights afforded by the Convention are guaranteed to prison service workers, domestic service workers and civil servants not engaged in the administration of the State.

Articles 1 and 3 of the Convention. Protection against acts of anti-union discrimination. The Committee recalls that it had previously requested the Government to ensure that all workers were guaranteed protection against acts of anti-union discrimination, regardless of whether their employment relationship was based or not on a written contract. The Committee notes with satisfaction that the new Labour Act applies to all employment relationships (section 3(1)). The Committee further notes with satisfaction section 50 providing for nullity of contractual provisions prohibiting trade union membership in a contract of employment, and section 83(2)(e) prohibiting dismissals and disciplinary actions on account of trade union membership and activities. The Committee also notes with satisfaction that the new Act provides remedies of reinstatement and/or compensation for anti-union dismissals (section 92(2)).

Articles 2 and 3. Protection against acts of interference. The Committee recalls that it had requested the Government to ensure sufficient protection against acts of interference by workers’ and employers’ organizations (or their agents) in each other’s affairs. The Committee notes with satisfaction that section 109(1) of the new Act prohibits an employer from promoting the establishment of workers’ organizations under its domination and provides for a sanction of not less than 50,000 dalasis in case of non-compliance with this provision. The Committee further notes that a court can order the cancellation of the registration of a workers’ association dominated by an employer or any other adequate remedy (section 109(3) and (4)).

Article 4. Measures to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers or their organizations and workers’ organizations. The Committee recalls that in its previous comments it had expressed its concern at the discretionary power of the authorities to deny registration of collective agreements. The Committee notes with satisfaction that under section 123 of the Act, the commissioner responsible for registering a collective agreement has an obligation to register such an agreement upon the application of both parties.

The Committee notes that according to section 130 of the Act, in order to be recognized as a sole bargaining agent, a trade union should represent a certain percentage of employees under a contract of service (30 per cent in the case of a single union and at least 45 per cent if the establishment in question employs at least 100 people; in this case, the bargaining agent could be composed of two or more trade unions). The Committee recalls that where, under a system for nominating an exclusive bargaining agent, there is no union representing the required percentage to be so designated, collective bargaining rights should not be denied to other unions in the unit, at least on behalf of their own members. It requests the Government to take the necessary measures in order to bring the legislation into conformity with the Convention.

The Committee further notes that section 131 of the Act provides that an employer may, if he or she wishes, organize a secret ballot to establish a sole bargaining agent. The Committee considers that the organization of a ballot for determining representativeness should be carried out by the authorities or an independent party upon a request presented by a union. The Committee requests the Government to amend section 131 of the Act in accordance with the principle above.