Suites données aux recommandations du comité et du Conseil d’administration - Rapport No. 327, Mars 2002

Effect given to the recommendations of the Committee and the Governing Body

1. 107. The Committee last examined this case at its June 2001 meeting when it expressed the hope that the State Enterprise Labour Relations Act (SERLA), which had entered into force on 8 April 2002, and the draft Labour Relations Act would grant fully the right to organize and to bargain collectively to state enterprise employees and private sector employees respectively [see 325th Report, paras. 81-84]. The Committee requested the Government to send a translated version of the SERLA which was received on 27 September 2001.
2. 108. The Committee notes the Government’s communication of 6 February 2002 concerning Labour Relations Act No. 3, which came into force on 17 November 2001. The Committee notes with interest that the Labour Relations Act grants state enterprise labour federations the right to join a labour confederation of the private sector. With regard to the SERLA, the Committee further notes with interest that it grants employees of state enterprises the right to form and join trade unions and federations, and bargain collectively. The Committee also notes with interest that the state enterprise employees’ associations, which were barred from collective bargaining, are now replaced by trade unions.
3. 109. The Committee notes, however, with regret a certain number of restrictions maintained by the SERLA concerning the right to organize. In particular, the Committee expresses its concern over the maintenance of a situation of trade union monopoly in state enterprises and certain measures of interference in trade union affairs. Section 40 of the Act explicitly prescribes a single-trade-union system: “each state enterprise shall have only one trade union”, and section 80 provides for an offence, punishable by imprisonment or fine or both, for any person who runs or joins a non-registered trade union. Section 46 of the Act stipulates that, the Registrar shall register the first application for registration that is lodged and fulfils the requirements set out in the Act, on a first-come first-served basis; if there is more than one application with equal representation, the Registrar shall openly arrange a drawing of lots among the applicants and shall register the drawn trade union. The Committee considers that the restriction on the setting up of more than one workers’ organization in the enterprise is clearly incompatible with the right of workers to establish and join organizations of their own choosing, which implies in particular, the effective possibility to create – if workers so choose – more than one workers’ organization per enterprise. Furthermore, measures taken against workers because they attempt to constitute an organization of workers outside the official trade union organization would be incompatible with the principle that workers should have the right to establish and join organizations of their own choosing without previous authorization [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 280 and 301]. The Committee requests the Government to take the necessary measures to amend its legislations to ensure that trade union pluralism remains possible and that employees remain free to choose to set up unions outside the already registered organization should they so wish.
4. 110. The Committee further observes that under sections 45, 62, 63 and 66, the Registrar has broad discretion to oversee certain internal affairs of the trade union, both when they seek registration and in the exercise of their programmes and activities. Under section 45, the Registrar must be satisfied that the object of an applicant trade union is not against public order or morality, but this concept is not defined under the Act. Such a discretionary power of the Registrar is tantamount to requiring previous authorization of the administrative authorities [see Digest, op. cit., para. 260]. The Committee requests the Government to take necessary measures in order to repeal this discretionary power of the Registrar. The Committee notes that section 62 appears to grant overly broad powers to the Registrar concerning access to trade union premises, financial accounts, etc. The Committee recalls in this respect that the control exercised by the public authorities over trade union finances should not normally exceed the obligation to submit periodic reports. The discretionary right of the authorities to carry out inspection and request information at any time entails a danger of interference in the internal administration of trade unions [see Digest, op. cit., paras. 442 and 443]. As concerns powers of the Registrar to dissolve a trade union when it appears to him that the activities of the trade union jeopardize national security or economy, or are harmful to the public order or good morality (section 66), the Committee recalls that measures of dissolution by the administrative authority constitute serious infringement of the principles of freedom of association. The dissolution of trade union organizations is a measure which should only occur in extremely serious cases; such dissolutions should only happen following a judicial decision so that the rights of defence are fully guaranteed. The legislation should also provide that the administrative decision does not take effect until the judicial authority has ruled on the appeal made by the trade union organization concerned [see Digest, op. cit., paras. 664, 666 and 682].
5. 111. The Committee also notes with regret that section 33 of the Act imposes a general prohibition of strikes and that penalties for strike action, even a peaceful strike action, are extremely severe: up to one year of imprisonment or a fine; or both for the participation in a strike action; and up to two years of imprisonment or a fine, or both for its instigation. The Committee recalls that the right to strike is one of the essential legitimate means through which workers and their organizations may promote and defend their economic and social interests. The right to strike may only be restricted or prohibited in the following cases: (1) in the public service only for public servants exercising authority in the name of the State; (2) in essential services in the strict sense of the term (that is, services the interruption of which would endanger the life, personal safety or health of the whole or part of the population); or (3) in the event of an acute national emergency and for a limited period of time [see Digest, op. cit., paras. 474, 475, 526 and 527]. As for the sanctions, the authorities should not resort to imprisonment in connection with the organization of or participation in a peaceful strike; such measures entail serious risks of abuses and are a grave threat to freedom of association [see Digest, op. cit., paras. 601 and 602].
6. 112. The Committee asks the Government to take the necessary measures to amend the SERLA to bring it fully into conformity with the principles of freedom of association on these and other relevant points and to keep it informed of any developments in this respect. The Committee further hopes that draft amendments to the Labour Relations Act, presently under consideration by the Council of State, will fully ensure the right to organize and to bargain collectively to private sector employees. It requests the Government to send a copy of the additional proposed amendments to the Labour Relations Act so that it may examine their conformity with the principles of freedom of association.