Observation (CEACR) - adoptée 2019, publiée 109ème session CIT (2021)

Repetition

Article 2 of the Convention. Adequate protection against acts of interference. Section 30(2) of the Labour Code. In its previous comments, the Committee considered that section 30(2) of the Labour Code does not cover all of the acts of interference prohibited by Article 2 of the Convention. The Committee also noted the Government’s indications that implementing regulations would be adopted to cover all of the acts of interference envisaged in Article 2 of the Convention, and that these regulations would also specify the penalties applicable in cases of violations of section 30(2) of the Labour Code.

The Committee notes the Government’s indication that section 152 of the Labour Code contributes to the protection of unionized workers against acts of interference by the employer by providing that terminations are unjustified when based on the opinions of the worker, the worker’s trade union activities or membership or not of a specific union.

The Committee however observes that, in relation to the implementation of the Convention, section 152 of the Labour Code affords protection to workers in the event of the unjustified termination of the employment contract, including in cases of anti-union dismissal, but does not provide specific protection against acts of interference. The Committee therefore once again requests the Government to provide information on any progress achieved concerning the adoption, as previously announced, of regulations broadening the protection against the acts of interference set out in section 30(2) of the Labour Code and establishing penalties in this regard.

Article 4. Promotion of collective bargaining. Section 40 of the Labour Code. In its previous comments, the Committee noted that, in accordance with section 40 of the Labour Code, collective agreements must be discussed by the delegates of employers’ and workers’ organizations belonging to the occupation or occupations concerned. Recalling that the level of bargaining should normally be a matter for the social partners themselves, the Committee requested the Government to indicate whether federations and confederations have the right to collective bargaining and to indicate the legislative provision which grants them this right.

The Committee notes the Government’s affirmation that federations and confederations are included in occupational unions, which therefore gives them the right to negotiate collective agreements. The Committee notes this indication. However, observing that no provision of the Labour Code appears to explicitly recognize the right of federations and confederations to conclude collective agreements, the Committee requests the Government to provide copies of collective agreements negotiated and concluded by federations or confederations.

Sections 197 and 198 of the Labour Code. In its previous comments, the Committee noted with regret that, under the terms of sections 197 and 198 of the Labour Code, representatives of trade union organizations and occupational groupings of workers (non-unionized) are on an equal footing in relation to collective bargaining. Recalling that Article 4 of the Convention promotes collective bargaining between employers’ and workers’ organizations, the Committee had requested the Government to indicate the measures taken to ensure that occupational groupings of workers can only negotiate collective agreements with employers where no trade union exists in the bargaining units concerned.

Noting the Government’s indication that measures are currently being taken with a view to amending sections 197 and 198 of the Labour Code, the Committee hopes that the Government will be in a position to report in the near future specific progress in the amendment of the above legislative provisions with a view to ensuring that occupational groupings of workers can only negotiate collective agreements with employers when there is no union in the bargaining units concerned.

Sections 367 to 370 of the Labour Code. In its previous comments, the Committee requested the Government to envisage amending sections 367 to 370 of the Labour Code, which appear to establish a procedure whereby all collective disputes are subject to conciliation and, failing resolution, to arbitration.

The Committee notes the Government’s indication that the urgent procedure of attempted conciliation and arbitration envisaged in sections 367 et seq. of the Labour Code is intended to resolve disputes within a reasonable period. Recalling that, by virtue of the principle of the promotion of free and voluntary collective bargaining set out in Article 4 of the Convention, recourse to compulsory arbitration in the case of disagreement between the parties to collective bargaining is only acceptable in relation to public servants engaged in the administration of the State (Article 6 of the Convention), essential services in the strict sense of the term or in the event of an acute national crisis, the Committee reiterates its request for the amendment of sections 367–370 of the Labour Code.

Articles 4 and 6. Public servants not engaged in the administration of the State. Section 211 of the Labour Code. In its previous comments, the Committee noted that section 211 of the Labour Code only provides for the right to collective bargaining in public services, enterprises and establishments for personnel not governed by specific conditions of service.

The Committee notes the Government’s indication that the right to bargaining established in the Labour Code cannot be applied to all personnel in public services, enterprises and establishments, except for employees recruited under private law, as public servants are excluded from the scope of application of the Labour Code.

The Committee recalls that, under the terms of Article 6 of the Convention, a distinction has to be made between, on the one hand, public servants who, through their functions, are directly engaged in the administration of the State (for example, in certain countries, officials in government ministries and other similar bodies and their auxiliary personnel), who may be excluded from the scope of application of the Convention and, on the other, all other persons employed by the Government, public enterprises or autonomous public institutions, who should benefit from the guarantees set out in the Convention (for example, employees in public enterprises, employees in municipal services and employees in other decentralized bodies, as well as public sector teachers). Emphasizing that only public servants engaged in the administration of the State may be excluded from the scope of application of the Convention, the Committee requests the Government to indicate the categories of public sector workers who are subject to specific conditions of service, and accordingly excluded from the scope of application of the Labour Code, and to indicate any texts which may accord certain of these categories the right to negotiate their terms and conditions of work and employment.

Observations of the International Trade Union Confederation (ITUC). In its previous comments, the Committee requested the Government to reply to the observations of the ITUC alleging the absence of collective bargaining in the wage determination process in the public sector and to indicate the measures taken to promote machinery for the negotiation of terms and conditions of employment in the public sector. The Committee notes with regret that the Government does not provide any information in this regard. While taking duly into account the difficulties currently experienced by the country, the Committee once again requests the Government to indicate the measures taken to promote machinery for the negotiation of terms and conditions of work and employment in the public sector.