CMNT_TITLE

Part V of the report form. Application in practice. The Committee notes the Government’s report received in November 2009 in reply to its 2007 direct request. The Government indicates that no legislation has been adopted in the field of application of the Convention and that access to court decisions is difficult. The Committee notes that court decisions may be the means of giving full effect to important provisions of the Convention. The Committee hopes that progress will be made, possibly with ILO assistance, and that the Government will be in a position to provide up-to-date information in its next report on the application of the Convention in practice, including court decisions concerning grounds for termination and periods of notice (Articles 4, 5, 6 and 11 of the Convention), statistics on the number of appeals against termination, the outcome of such appeals, the nature of the remedy awarded and the average time taken for an appeal to be decided. In view of the global crisis, it would be important to include information in the next report on the number of negotiated departures, in accordance with the provisions of section 73 of the Labour Code, for economic reasons (Articles 13 and 14 of the Convention).

Article 2(3). Adequate safeguards against recourse to contracts of employment for a specified period of time. In reply to the Committee’s previous comments, the Government indicates that section 55 of the Labour Code is never used to circumvent the provisions of the Convention. The Committee notes that, under sections 54 and 55 of the Labour Code, contracts for an unspecified duration may be renewed freely without any limitation on the number of times and without any loss of status. Contracts for an unspecified duration may be concluded for the replacement of a temporarily absent worker, for the length of a season, for an occasional increase in workload or for work that does not form part of the customary activities of the enterprise. In view of the fact that contracts for an unspecified duration may be renewed freely, the Committee notes that excessive use of contracts for an unspecified duration would be tantamount to avoiding the protection resulting from the Convention. The Committee requests the Government to indicate in its next report the measures taken or contemplated in order to provide adequate safeguards against the excessive use of contracts for an unspecified duration.

Article 8. Period for exercising the right of appeal. The Government indicates that in practice the period of two years is respected and that workers may avail themselves of the provisions of the Civil Code in order to take action. The Committee requests the Government to indicate the manner in which civil law provisions have enabled a deadline to be fixed for exercising the right of appeal against termination.

Article 10. Provision of compensation, declaring unjustified termination invalid, and reinstatement. The Government refers to section 85(a) of the Labour Code, which states that the amount of compensation shall be fixed taking into account many factors including, among others, damage caused. The Government indicates that this compensation is not to be confused with compensation for failure to give notice or severance pay, and that this remains at the discretion of the judge. The Committee requests the Government to supply examples of relevant court decisions on the application of this provision of the Convention.

Article 11. Period of notice. The Government refers to Annex 1 of the interoccupational collective agreement of 1972, which determines the conditions and period of notice, taking account in particular of the length of contract and the occupational categories listed in Annex 1. In its previous comments the Committee noted the provisions of section 81 of the Labour Code, according to which termination of an employment contract of indefinite duration is subject to a period of notice notified by the party that takes the initiative to terminate the contract. The conditions and period of notice were due to be the subject of an opinion from the Labour Advisory Committee and a government decree. The Committee hopes that the regulatory measures provided for by the 1996 Labour Code will be adopted in the very near future. It again requests the Government to supply examples of relevant court decisions relating to the appraisal by the courts of the concept of serious misconduct (section 83 of the Labour Code).

Article 12(3). Severance allowance. In reply to previous comments, the Government indicates that the severance allowance is not payable in cases of termination of employment resulting from serious misconduct to workers covered by the provisions of section 34 of the 1972 interoccupational collective agreement. Moreover, section 79 of the Labour Code states that workers whose employment is terminated for economic reasons shall be entitled to a tax-free allowance paid by the employer and equal to one month’s gross salary, in addition to the period of notice and any severance allowance for economic reasons. The Committee requests the Government to describe the impact, if any, of serious misconduct on severance benefits for workers whose employment is terminated for economic reasons.