Demande directe (CEACR) - adoptée 2010, publiée 100ème session CIT (2011)

The Committee notes the comments submitted by the International Trade Union Confederation (ITUC), dated 24 August 2010.

Article 2 of the Convention. Right of workers and employers, without distinction whatsoever, to establish and join organizations. In its previous comments, the Committee requested the Government to take the necessary measures so as to ensure that judges and temporarily and permanently appointed officials in the public service enjoy the right to establish and join organizations. The Committee notes that the Government indicates in its report that judges as well as other categories of public employees are not covered by the Labour Code, but have their own statutes and associations. Noting that a Law on the Status of Judges and Prosecutors is being prepared, the Committee requests the Government to take into account that judges should enjoy the right to establish and join organizations of their own choosing for the promotion and defence of their occupational interests, and to provide information in this respect in its next report.

Furthermore, in its previous comments, the Committee noted that “civil servants of the legislative order” were employees of the secretariats of the National Assembly and Senate, and were thereby excluded from the provisions of the Common Statute of Civil Servants. The Committee notes that both the Committee on Freedom of Association (Case No. 2222) and the ITUC refer to civil servants’ associations that are registered, but that are not recognized as unions by the Labour Ministry, in particular teachers’ associations. Furthermore the Committee notes that the Government indicated during the discussions in the Conference Committee on the Application of Standards in June 2010 that it was considering guaranteeing the right of freedom of association to civil servants. The Committee recalls that with the exception of the members of the police and the armed forces, the guarantee of the right of association should apply to all workers, including public servants and officials. All public servants and officials should have the right to establish occupational organizations, irrespective of whether they are engaged in the state administration, are officials of bodies which provide important public services or are employed in state-owned economic undertakings (see General Survey of 1994 on freedom of association and collective bargaining, paragraphs 48, 49 and 55). Moreover, all workers, whether they are employed on a permanent or temporary basis, should have the right to establish and join organizations of their own choosing. Recalling that the Conference Committee expressed the hope that the necessary measures will be taken in the near future to ensure freedom of association rights for civil servants, the Committee requests the Government to provide information in its next report on any legislative measure taken or contemplated to ensure that civil servants, including teachers, legislative employees and temporary officers, enjoy the right to establish and join organizations of their choosing.

Right of workers to establish organizations without previous authorization. The Committee had previously requested the Government to indicate whether workers’ and employers’ organizations might be refused registration and in that case, to indicate the permissible grounds for such a refusal. The Committee noted that the Government indicated that the criteria and procedures for the registration were set out in Prakas No. 021 and that, if authorities do not reply within two months after receipt of an organization’s registration form, the organization is considered to be registered. The Committee takes due note of the Government’s statement, in its report, that there has not been any refusal of registration and that a request for registration only has to meet the criteria set out in the Labour Code and Prakas No. 021 to be successful.

Article 3. Right to elect representatives freely. The Committee had previously requested the Government to amend section 269(3) of the Labour Law, which disqualifies persons convicted of any crime from being elected to the post of responsible for the administration and management of a professional organization, as well as section 2(3) of Prakas No. 021 on the registration of professional organizations, which provides that the persons responsible for the leadership and administration of the organization should never have been convicted of any criminal acts, in order to limit this restriction to convictions clearly touching upon the integrity of the person concerned. The Committee notes that the Government indicates in its report that the Ministry will continue to implement the existing labour law until the Trade Union Law is in force. The Committee recalls that conviction on account of offences, the nature of which is not such as to call into question the integrity of the person concerned and is not such as to be prejudicial to the exercise of trade union functions, should not constitute grounds for disqualification from holding trade union office, and any legislation providing for disqualification on the basis of any offence is incompatible with the principles of freedom of association. In the framework of the drafting of the Trade Union Law, the Committee requests the Government to take the necessary measures to ensure that the abovementioned principle will be taken into account, and to provide information in this respect in its next report.

Furthermore, the Committee had previously requested the Government to amend section 269(4) of the Labour Law, which requires trade union members to be engaged in the profession or the job for at least one year before being elected to trade union office. The Committee notes that the Government indicates in its report that the Ministry will continue to implement the existing labour law until the Trade Union Law is in force. The Committee recalls that provisions of this type infringe the organizations’ right to elect representatives in full freedom by preventing qualified persons from carrying out union duties or by depriving unions of the benefit of the experience of certain officers when they are unable to provide enough qualified persons among their own ranks. The Committee considers that in order to bring such legislation into conformity with the Convention, it would be desirable to make it more flexible, either by admitting as candidates persons who have previously been employed in the occupation concerned, or by exempting from the occupational requirement a reasonable proportion of the officers of an organization (see General Survey, op. cit., paragraph 117). In the framework of the drafting of the Trade Union Law, the Committee requests the Government to take the necessary measures to ensure that the abovementioned principle will be taken into account, either by exempting from the occupational requirement a reasonable proportion of the officers of an organization, or by admitting as candidates persons who have been engaged in the industry for less than one year and those who have previously been employed in the organization concerned.

Right to strike. Previously, the Committee had requested the Government to amend section 326(1) of the Labour Law, which provides that a minimum service should be arranged in the enterprise where a strike is taking place and if there is no agreement between the parties to the dispute, that the Ministry of Labour shall determine the minimum services in question. The Committee notes that the Government indicates in its report that the Ministry will continue to implement the existing labour law until the Trade Union Law is in force. The Committee recalls that the authorities may establish a system of minimum service in services which are of public utility in order to avoid damages which are irreversible or out of all proportion to the occupational interests of the parties to the dispute, as well as damages to third parties, namely the users or consumers who suffer the economic effects of collective disputes. Minimum services could be appropriate in situations in which a substantial restriction or a total prohibition of strike action would not appear to be justified and where, without calling into question the right to strike of the large majority of workers, one might consider ensuring that users’ basic needs are met or that facilities operate safely or without interruption (see General Survey, op. cit., paragraphs 160 and 162). In the framework of the drafting of the Trade Union Law, the Committee once again requests the Government to take the necessary measures to ensure that minimum services will be in keeping with the abovementioned principles and, in particular, to: (1) amend section 326(2) of the Labour Law, which provides that workers who are required to provide minimum service and who do not appear for such work are considered guilty of serious misconduct; and (2) amend the legislation so as to ensure that any disagreement concerning the establishment of minimum services is settled by an independent body having the confidence of all the parties to the dispute, and not the executive or administrative authority.

Article 5. Right of organizations to affiliate with international organizations. The Committee had previously requested the Government to indicate whether the unions of professional organizations have the right to affiliate with international organizations, and to specify the relevant legislative provisions. The Committee notes that the Government indicates in its report that although no legal provisions provide for this right at present, in practice, many trade unions are affiliated with international organizations and that the upcoming Trade Union Law will include a provision guaranteeing this right. The Committee requests the Government to indicate in its next report the progress made to include expressly this right in its legislation, in order to align the law with its practice.