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Repetition

Article 2 of the Convention. Right of workers and employers, without distinction whatsoever, to establish and join organizations. Definition of worker. The Committee takes note that the definition of “worker” in section 2 of the draft Labour Code refers to a person who undertakes to perform work for an employer for remuneration, thus excluding from the Code’s scope of application workers who are not under a contract of employment. Similarly, its section 159 recognizes the right to establish a trade union to “every person engaged in employment”. The Committee recalls that Article 2 of the Convention does not apply only to employees but more broadly to all workers without distinction whatsoever, and that national laws and regulations may only exclude from the guarantees of the Convention the armed forces and the police. The Committee requests the Government to indicate if other laws or regulations recognize the rights enshrined in the Convention to workers outside of the scope of the draft Labour Code, including in particular self-employed workers and workers without employment contract, and to take the necessary measures to ensure that these workers can establish and join organizations for furthering and defending their interests and otherwise enjoy the guarantees under the Convention.

Minors. The Committee notes that the draft Labour Code does not allow persons below 15 years of age to join a trade union and participate in its activities (section 177). It further notes that persons of 14 years of age may participate in apprenticeships (section 127(4)) and that the employment of persons of 13 and below 15 years of age may be permitted under certain conditions (section 128(4)). The Committee recalls that minors who have reached the minimum legal age for admission to employment, both as workers and as apprentices, should be admissible for trade union membership (see the 2012 General Survey on the fundamental Conventions, paragraph 78). The Committee therefore requests the Government to take the necessary measures to amend section 177 in order to guarantee the right to organize for minors having access to the labour market in compliance with the conditions laid down in the draft Labour Code.

Civil service. The Committee notes that the draft Civil Service Law provides that federal civil service employees are only entitled to associate in trade unions or other organizations if the exercise of their rights is not unfavourable to the public interest (article 8.1.6). The Committee recalls that the guarantees under the Convention also apply to public servants (see the 2012 General Survey on the fundamental Conventions, paragraph 64) and deems that the right to establish or join organizations of their own choosing (to further and defend their interests as workers) may not be limited for public servants on account of considerations such as public interest. The Committee requests the Government to take the necessary measures to amend the draft Civil Service Law so as to ensure that the right of workers to establish and join organizations of their own choosing is recognized to all civil service employees, with the sole possible exception of the armed forces and the police, and without subjecting the enjoyment of such right to public interest considerations.

Right of workers and employers to establish and join organizations without previous authorization. Amalgamation of organizations. The Committee notes that the amalgamation procedure for trade unions and employers’ organizations is regulated by section 172 of the draft Labour Code, which stipulates that an amalgamation may only occur if at least 50 percent of the members of each organization have voted, and if the number of voters in favour of the proposed amalgamation exceeds by at least 20 percent the number of voters against it. The Committee requests the Government to review this provision in consultation with the social partners, with a view to leaving the setting of internal decision-making requirements for amalgamation to the bylaws of the organizations concerned.

Article 3. Right of organizations to elect their representatives. Election procedures. The Committee notes that section 179(6) of the draft Labour Code allows the Registrar to issue directions to trade unions and employers’ organizations to ensure that their elections are conducted in accordance with the basic rules on election of officials set out in section 179 (prohibiting discrimination and providing for secret ballot elections at least once every five years, and the communication of the results to the Registrar within 14 days), as well as with their respective constitutions. The Committee recalls that, while legislation may promote democratic principles in relation to trade union election processes, the manner in which the elections are carried out should be left to the autonomy of the organizations concerned and provisions that could allow control over the electoral procedure by the administrative authorities, such as through the issuance of directions, are incompatible with the Convention (see the 2012 General Survey on the fundamental Conventions, paragraph 101). The Committee requests the Government to amend the draft Labour Code to remove any control by the Registrar over trade union election processes.

Conditions of eligibility of representatives. The Committee takes note that the draft Labour Code sets out restrictions with regard to the eligibility for office of representatives of workers’ and employers’ organizations. It notes that trade union executives may not be less than 18 years of age (section 177(1)(b)), and that officials may not represent more than one organization (section 178(2)). Recalling that the determination of conditions of eligibility for office is a matter that should be left to the organizations’ bylaws, the Committee requests the Government to take the necessary measures to remove the above-mentioned restrictions from the draft legislation.

The Committee further notes that trade union officials and trustees must not have been previously convicted of a criminal offence involving fraud or dishonesty (sections 178(5) and 182(3)), and recalls that conviction for an act 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 performance of trade union duties should not constitute grounds for disqualification from trade union office (see the 2012 General Survey on the fundamental Conventions, paragraph 106). The Committee requests the Government to provide information on the application in practice of these provisions, and to indicate in particular whether the exclusion from trade union office eligibility is permanent or may be limited in time – for example, in light of national regulations concerning criminal records.

Right of organizations to organize their administration and activities and to formulate their programmes. Financial management. The Committee notes that sections 186, 187, 188(2) and 189 of the draft Labour Code regulate in detail several aspects related to the financial management of workers’ and employers’ organizations and allow the Registrar to request accounts from their officials and to seek injunctions and court orders to restrain the expenditure of their funds. The Committee recalls that the supervision of the financial management of organizations should not go beyond the obligation to submit annual financial reports, and that the verification of accounts should only be carried out if there are serious grounds to believe that the actions of the organization are contrary to its rules or the law, or if a reasonable proportion of members file a complaint (see the 2012 General Survey on the fundamental Conventions, paragraph 109). The Committee requests the Government to amend the draft legislation to ensure that, beyond the obligation to submit annual financial reports, administrative authorities are only allowed to control and inspect the financial management of organizations in cases in which serious grounds of unlawful activity or the initiative of a certain percentage of members warrant such an intervention.

Internal administration. The Committee notes that sections 182(6), 183, 185 and 190 of the draft Labour Code allow public authorities to control matters such as the transfer of workers’ and employers’ organizations’ property and the deduction of trade union dues. The Committee recalls that the organizations’ freedom to organize their administration includes the right to dispose of all their fixed and moveable assets unhindered. It further recalls that the deduction of trade union dues by employers and their transfer to trade unions is a matter that should not be solely determined by law but be dealt with through collective bargaining without any intervention by the public authorities (see the 2012 General Survey on the fundamental Conventions, paragraph 114). The Committee requests the Government to take the necessary measures to amend the draft legislation so as to limit the supervisory powers of the administrative authorities to control the internal administration of organizations.

Right to strike. Public service. The Committee notes that while the draft Labour Code authorizes the right to strike for public employees except civil servants exercising authority in the name of the state (section 226(3)(b)), the draft Civil Service Law provides that federal civil service employees should only be entitled to strike if the strike does not become detrimental to public interest (article 8.1.5). The Committee recalls that the prohibition of exercising the right to strike in the public service should be limited to public servants exercising authority in the name of the State, a category that does not include, among others teachers, postal workers or railway employees (see the 2012 General Survey on the fundamental Conventions, paragraph 130). It also considers that provisions prohibiting strikes on the basis of potential detriment to public order or national interest are not compatible with the right of organizations to organize their administration and activities and to formulate their programmes (see the 2012 General Survey on the fundamental Conventions, paragraph 132). The Committee requests the Government to amend the draft Civil Service Law in order to ensure that prohibitions to exercise the right to strike may only relate to civil servants exercising authority in the name of the State, or to essential services in the strict sense of the term and situations of acute national crisis.

Compulsory arbitration. The Committee takes note that sections 208(1)(e) and 224(2) of the draft Labour Code could respectively allow compulsory arbitration as a result of an administrative decision by the Federal Alternative Dispute Resolution Commission or following the request of any of the parties to the Labour Court. The Committee considers that recourse to compulsory arbitration to bring an end to a collective labour dispute is only acceptable when the two parties to the dispute so agree, or when a strike may be restricted or prohibited in the case of disputes concerning public servants exercising authority in the name of the State, essential services in the strict sense of the term or situations of acute national crisis. The Committee requests the Government to ensure that arbitration, whether conducted by the Federal Alternative Dispute Resolution Commission or by the Labour Court, may only take place with the approval of both parties or in circumstances in which a strike may be restricted or prohibited.

Article 4. Prohibition of dissolution or suspension of organizations by administrative authority. The Committee notes that section 174(1)(b) of the draft Labour Code stipulates that the Registrar must cancel or suspend the registration of an organization if he or she is satisfied that the organization has ceased to exist. It further notes that section 174(2) provides that the Registrar may cancel or suspend the registration of an organization if he or she is satisfied that the organization was registered as a result of fraud, misrepresentation or mistake, is operating in contravention of the Code, is being used for an unlawful purpose, has failed to conduct elections in accordance with the requirements of the Code, or is not independent. The Committee also takes note that although a decision of dissolution, cancellation or suspension by the Registrar may be appealed before the Labour Court, an appeal does not appear to suspend the effect of such decision (sections 174(5) and 176). It recalls that the dissolution and suspension of trade union organizations constitute extreme forms of interference by the authorities and should therefore be accompanied by all the necessary guarantees, especially a normal judicial procedure, which should have a suspensory effect (see the 2012 General Survey on the fundamental Conventions, paragraph 162). The Committee requests the Government to modify the draft legislation to minimize the Registrar’s powers with regard to cancellation and suspension of registration and to ensure that in case of judicial appeal against a decision to dissolve an organization or to suspend or cancel its registration, such decision does not take effect until the end of the appeal procedure.

Application of the Convention in practice. The Committee requests the Government to provide statistical information on the number of workers’ and employers’ organizations registered, the sectors and the number of workers covered.