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

The Committee notes with regret that the Government’s report contains no reply to its previous comments. It hopes that the next report will include full information on the matters raised in its previous direct request, which read as follows:

Articles 1(1) and 2(1) of the Convention. Freedom of persons in the service of the State to terminate employment. In its earlier comments, the Committee referred to section 2.2, Chapter 41 (“Resignation – Officers”) of the Defence Force Manual, under which the commander of the Defence Force may reject the resignation of an officer if, in the opinion of the commander, such resignation would seriously prejudice the ability of the Defence Force to carry out current or future operations. According to section 5 of the same Chapter, the Defence Council may accept or reject the resignation of an officer; in the latter case the officer has the right of appeal to a higher authority.

The Committee pointed out that the effect of statutory provisions preventing termination of employment of indefinite duration by means of notice of reasonable length is to turn a contractual relationship based on the will of the parties into service by compulsion of law, and is thus incompatible with the Convention. Furthermore, the provisions relating to compulsory military service included in the Convention do not apply to career military service; therefore, persons who have voluntarily entered into an engagement may not be deprived of the right to leave the service in peacetime within a reasonable period, either at specified intervals, or with previous notice, subject to the conditions which may normally be required to ensure the continuity of the service.

The Committee notes the provisions of section 32 of the Defence Force Act, reproduced by the Government in its report, according to which the period of service required of a member of the Defence Force may be either a fixed period or a period ending when the member attains a prescribed age, and at the end of such period of service a member of the Defence Force is entitled to be discharged with all convenient speed from the Force, except in time of war or during a defence standby, when the Defence Council may extend the period of service for a period ending not later than the end of the war or defence standby. It also notes the Government’s repeated statement that, with the current retrenchment exercise being carried out in the Defence Force, as the country is in peacetime, the number of the Defence Force will gradually decline and voluntary discharges from the Force are allowed. The Committee further notes that the Government shares its view that the existing provisions governing the resignation of officers are not compatible with the Convention, as well as the Government’s intention to provide copies of the Committee’s comments to the Ministry for Defence with the view of possible revision of these provisions.

The Committee expresses the firm hope that the necessary measures will be taken in order to bring the provisions governing the resignation of officers into conformity with the Convention and with the indicated practice. Pending the revision, the Committee requests the Government to continue to provide information on the application of these provisions in practice, indicating the number of applications to resign accepted and refused, as well as the reasons for refusal. Please also supply a copy of the full updated text of the Defence Force Act.