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

The Committee notes the Government’s indications in its first report that: (1) Trade Union Act No. 5/92 of 28 May 1992 (hereinafter Act No. 5/92) applies generally to all employees except those in the armed forces and the police; (2) officials in the public administration are also governed by Act No. 5/97 of 1 December 1997 concerning the public service regulations (hereinafter Act No. 5/97); and (3) the aforementioned regulations cover the armed forces and security forces with adaptations according to their specific sets of regulations and also cover judges and magistrates under the same conditions (section 2 of Act No. 5/97).

Article 4 of the Convention. Protection against acts of anti-union discrimination. The Committee notes that section 6 of Act No. 5/92 states that any agreement, provision or act aimed at making an employee or his conditions of work subject to being or becoming a member of a trade union or to renouncing membership thereof shall be null and void. The Committee also notes that, with regard to the dismissal of trade union stewards, section 12(4) of the aforementioned Act states that the dismissal of a trade union representative can only be based on the grounds of a justified disciplinary measure or the definitive closure of the enterprise. Finally, the Committee notes that, in connection with the application of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the Government indicated that there is no legislation that lays down penalties for acts of anti-union discrimination. The Committee therefore requests the Government to take the necessary steps to establish penalties in law that constitute an adequate deterrent against acts of anti-union discrimination.

Article 5 of the Convention. Protection against acts of interference. The Committee notes that sections 3 and 4 of Act No. 5/92 provide that: (1) trade union organizations are independent of the State, political parties and religious institutions; any interference from any of the latter in the organization, management or finances of trade unions shall be prohibited; (2) employers and their organizations, and also any other non-trade union bodies, shall not promote the formation of trade union organizations or in any shape or form maintain or support their organization or management; and (3) the holding of any position within the executive body of a trade union shall be incompatible with the occupation of any managerial post in a political party or religious institution, and also with the holding of any office in the Government, Supreme Court, Office of the Prosecutor-General or any other post having a specific legislative or judicial function. The Committee notes that the legislation does not lay down any penalties in this sphere. The Committee therefore requests the Government to take the necessary steps to establish penalties in law that constitute an adequate deterrent against acts of interference by employers against trade unions. The Committee requests the Government to indicate whether legal provisions exist which protect trade union members against acts of discrimination based on the performance of legitimate trade union activities.

Article 6. Facilities. The Committee notes that section 12(2) of Act No. 5/92 provides that trade union representatives shall be afforded, for the exercise of the powers conferred on them by trade union rules, the following rights and facilities: (a) the use of adequate premises in the enterprise for the performance of their activity; (b) freedom of movement in work premises occupied by workers belonging to the union; (c) to display in appropriate locations in the enterprise the documents relating to the existence and activities of the trade union and the social and occupational interests of the workers; and (d) to convene, conduct and provide information on trade union meetings.

Article 7 of the Convention. Methods to allow participation in the determination of conditions of employment. The Committee notes that neither Act No. 5/92 nor Act No. 5/97 refers to collective bargaining and, consequently, neither Act mentions any appropriate measures to encourage and promote such bargaining between the public authorities concerned and public employees’ organizations regarding conditions of employment. Nevertheless, the Committee notes the Government’s statement, with respect to the application of the Collective Bargaining Convention, 1981 (No. 154), that the Labour Directorate of the Ministry of Labour might act as an intermediary between the parties to collective bargaining, including in order to ensure the effectiveness of the agreement. The Committee requests the Government to indicate whether public servants enjoy the right to collective bargaining and also to supply further information on the role of the Labour Directorate in the collective bargaining process and, if public servants do not enjoy the right to collective bargaining, to clarify whether any other method exists, such as consultation, that enables the representatives of public employees to participate in the determination of their conditions of employment.

The Committee also notes the Government’s statement concerning the adoption of a new Constitution, a copy of which will be sent to the Office. The Committee wishes to emphasize that, in its comment relating to the application of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), it has noted for several years the bill concerning the legal framework of collective bargaining which appears to be in conformity with the provisions of the Convention. According to the Government, the bill is still being examined by the Assembly of the Republic. In view of the length of time that has elapsed, the Committee expresses the hope that the aforementioned bill will be adopted in the very near future and requests the Government to indicate whether the bill also applies to public officials and employees. The Committee also requests the Government to indicate the progress of the legislative procedures relating to the adoption of the bill and to send a copy of the definitive text thereof once it has been adopted.

Article 8. Settlement of disputes. The Committee notes that section 11 of the Act concerning strikes mentions compulsory arbitration but observes that the legislation does not mention any procedures for mediation or conciliation in the event of a dispute between the parties. The Committee requests the Government to supply further information and in particular to indicate whether the Act concerning strikes applies to employees in public administration, and also the measures contemplated for inclusion in the legislation of mediation or conciliation procedures or any other mechanisms which have the confidence of the parties in the event of a dispute.

Application in practice. The Committee notes the information supplied in connection with the application of the Collective Bargaining Convention, 1981 (No. 154), to the effect that no collective agreements currently exist in the country owing to geographical factors. The Committee understands that this situation also applies to the public administration and requests the Government to promote collective bargaining or other procedures to allow workers’ organizations to participate in the determination of their conditions of employment.