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The Committee notes the Government’s report and the discussion which took place in the Conference Committee in June 2002. The Committee also notes the comments on the application of the Convention made by the Public and Private Employees’ Association (ANEP) on 26 November 2001. The Committee further notes the comments made recently by the Rerum Novarum Confederation of Workers and requests the Government to provide its comments in response.

1.  Slowness and ineffectiveness of recourse procedures
  in the event of anti-union acts

In its previous comments, the Committee noted the slowness of the judicial procedures in the event of cases of anti-union persecution and of those applicable in cases of breaches of the labour legislation giving rise to the imposition of penalties, which may last for one or more years, as well as, in contrast, the Government’s statement that the prior administrative procedure lasts for a period of two months as established by the Constitutional Chamber. The Committee noted that the Government, workers and employers agree upon the need for proceedings to be rapid and, within the framework of a tripartite consensus, the Executive Authority submitted to the Legislative Assembly a Bill to amend various provisions of the Labour Code (file No. 14676). The Committee noted that the Bill addresses very fully acts of anti-union discrimination and interference (dismissals, transfers, blacklists, etc.) and provides for very rapid procedures prior to dismissal, which have to be fulfilled by the employer, and summary proceedings before the judicial authorities, with compulsory time limits to ascertain the reasons for the dismissal and severe penalties for refusal to reinstate the worker where justified grounds are not proven.

The Committee notes that in its report the Government refers to recent important measures to facilitate labour proceedings and attaches statistics on the progress achieved. The Government adds that it has forwarded the comments made by the Committee of Experts to the President of the Supreme Court of Justice for analysis and consideration. Nevertheless, the Committee emphasizes that the information and statistics provided by the Government are of a general nature and do not refer specifically to judicial procedures in relation to anti-trade union discrimination. The Committee also notes that the Bill (file No. 14676) referred to in the previous paragraph is before the Permanent Committee on Social Affairs of the Legislative Assembly. Bearing in mind the importance of the problem of the slowness of judicial procedures in cases of acts of anti-union discrimination, the Committee once again expresses the firm hope that the above Bill (file No. 14676) will be adopted in the near future and requests the Government to keep it informed on this matter.

2.  Restrictions on the right to collective bargaining in the public sector,   including for employees who are not engaged in the administration
  of the State, as a result of various court rulings

In its previous observation, the Committee noted that, according to the report of the technical assistance mission which took place in September 2001, there are good grounds for believing, including the opinion expressed by the President of the Constitutional Chamber, that the Chamber’s rulings Nos. 2000-04453 of 24 May 2000 and 2000-7730 of 30 August 2000, as well as the Chamber’s vote of clarification (No. 2000-09690) of 1 November 2000, totally exclude collective bargaining for all public sector employees with a statutory employment status, including those working in public or commercial enterprises or in independent public institutions. The Committee noted in the context of this case law the recent Decree No. 29576-MTSS of 31 May 2000 (regulations for the negotiation of collective agreements in the public sector), which only excludes from this right public servants of the highest level in the public sector, and that the above regulations, in accordance with the recommendations of the technical assistance provided by the ILO, include certain substantial improvements in relation to the 1993 regulations (for example, abolition of the approval commission, a sufficiently broad scope of application in terms of the persons covered, limitations on bargaining only for the representatives of public bodies) and which were the subject of certain comments by the technical assistance mission in September 2001 with a view to developing future legislation, in which emphasis was placed on certain problems and issues.

Nevertheless, the Committee emphasized in its previous observation that the technical assistance mission, commenting on the above rulings of the Constitutional Chamber, "emphasizes the confusion, uncertainty and even legal insecurity existing with regard to the scope of the right to collective bargaining in the public sector, in terms of the employees and public servants covered (according to the rulings, the administrations of public institutions or enterprises are responsible for determining which employees have statutory status, and their decision may in turn be appealed to the judicial authorities) and in parallel concerning the validity and effect of certain collective agreements that are in force, as well as the constitutionality of the large number (according to the Government) of de facto negotiations existing, including the recent regulations respecting collective bargaining in the public sector of 31 May 2001". The mission also emphasized that the ruling of 24 May 2000 indicates that it has retroactive effect.

The Committee notes that the trade union organization ANEP emphasizes that the right to collective bargaining should be recognized in the context of municipal authorities.

The Committee notes the information contained in the Government’s report on the various measures taken by the Minister of Labour (to intervene with the President of the Legislative Assembly and the leaders of the legislative groups) and the Bills submitted for the proper application of the Convention in relation to the issues raised above, including a Bill to approve Convention No. 151 (placed as item No. 17 of the first readings for the second part of the plenary session), a Bill to approve Convention No. 154 (item No. 18), a Bill to reform article 192 of the Constitution (with a view to which the legislative is examining the possibility of establishing the corresponding commission) and a Bill respecting the negotiation of collective agreements in the public sector and to add a subsection (5) to section 112 of the General Act on public administration (under examination by the Permanent Committee on Social Affairs). The Government hopes that the discussion and examination of these draft texts will result in improvements in the application of Convention No. 98.

Recalling that the Convention only allows for the exclusion from its scope of application of public servants engaged in the administration of the State (Article 6 of the Convention), the Committee expresses the firm hope that the draft texts referred to by the Government will be adopted in the very near future and requests the Government to keep it informed in this respect.

3.  Subjecting collective bargaining in the public sector
  to criteria of proportionality and rationality

The Committee noted previously that the ruling of the Constitutional Chamber of 30 August 2000 concerning the RECOPE oil refinery (a public enterprise) declared unconstitutional certain clauses of a collective agreement (relating to the vacation bonus, paid and unpaid leave for personal reasons, the attendance bonus for employees who comply with the duty to attend work, etc.) on grounds, in particular, of the criteria of legality, proportionality, rationality and equality, and referring to the unreasonable and disproportionate privileges which in certain cases are secured with public funds. The Committee insists that only on grounds of procedural flaws or non-compliance with minimum legal standards, including constitutional provisions, could clauses of agreements be struck down and it emphasized that the ruling in question may have very prejudicial effects on the confidence placed in collective bargaining as a means of resolving conflicts and may give rise to a loss of autonomy of the parties and the devaluation of collective bargaining itself.

The Committee previously expressed the hope that in future the authorities would take into account the above principle and would refrain from striking down clauses of collective agreements on the basis of the criteria of mere proportionality and rationality. The Committee notes the Government’s indication in its report that it has forwarded the proposals of the ILO’s supervisory bodies to the President of the Supreme Court of Justice for analysis and consideration, in the context of the principle of the separation of powers, so that the judicial authorities can take into account the principles indicated by the Committee of Experts. The Government reports that various deputies have recently lodged an appeal on grounds of unconstitutionality against various sections of the collective agreement in force in the "RECOPE" enterprise and that the Ministry of Labour joined the action of the trade union of the enterprise in order to maintain the collective agreement in force.

The Committee reiterates its previous conclusions on this matter, and requests to be kept informed in this respect.

4.  Collective bargaining in the private sector

In its previous observation, the Committee noted with concern the enormous imbalance in the private sector between the number of collective agreements concluded by trade union organizations (12, with very low coverage - 7,200 workers) and the direct accords concluded by non-unionized workers (130). The Committee noted that the trade union confederations link this imbalance with the permanent workers’ committees which, in their opinion, mostly act as hidden agents of employers or solidarist associations, an allegation that is denied by employers. In their previous communications, two trade union organizations made allegations concerning the conclusion of unlawful direct accords in the passenger and cargo transport sector.

The Committee once again emphasizes that the ILO’s instruments envisage direct negotiation between employers’ and workers’ representatives only in the absence of trade union organizations. The Committee points out that Convention No. 98 advocates "encouraging and promoting negotiation with workers’ organizations" by means of collective agreements and requests the Government to take the necessary measures to promote collective bargaining within the meaning of the Convention and for the holding of an investigation by independent persons of the reasons for the increase in direct accords with non-unionized workers. The Committee notes the Government’s indication in its report that it has requested the technical assistance of the ILO Subregional Office for Central America and the collaboration of the judiciary, to which it has transmitted the comments of the Committee of Experts. The Committee reiterates its previous conclusions and hopes that it will be possible to note progress in the near future.

Finally, the Government indicates in general that it has requested the technical assistance of the ILO Subregional Office for Central America for the discussion of the various issues relating to the Convention in a tripartite context, and that a tripartite commission has been established to examine the draft texts of labour law, and met for the first time in September 2002. The Committee requests the Government to keep it informed of any progress achieved in relation to the various issues raised in this observation.