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Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Central African Republic (RATIFICATION: 1964)

Other comments on C098

Observation

Direct Request

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The Committee notes the draft text of the revised Labour Code provided by the Government and notes that the Government benefited from technical assistance from the Office in this regard.

Article 1 of the Convention. Adequate protection against any acts of anti-union discrimination. The Committee notes the Government’s indication that protection measures for staff representatives, which cover both trade union delegates and elected representatives, are reinforced by sections 99 to 103 of the draft Labour Code. The Committee notes that these sections provide for: (i) the prior authorization of the labour inspector in the event of dismissal; (ii) the invalidity of the dismissal of a staff representative in the absence of authorization from the labour inspector; and (iii) the application of these measures to candidates and alternate candidates to the functions of staff representative, and to former staff representatives. However, the Committee notes that dismissals of workers who are not staff representatives on the grounds of their trade union activities shall be considered unjustified and give rise to the right, in the same way as any other type of unjustified dismissal, to damages and interest, of which the maximum amount, which varies on the basis of the seniority of the worker, is set out in section 182 of the draft Labour Code. While reaffirming that the reinstatement of a worker dismissed by reason of trade union membership or legitimate trade union activities constitutes the most effective remedy for acts of anti-union discrimination, the Committee wishes to recall that when a country opts for a system of compensation and fines, it considers that the compensation envisaged for anti-union dismissal should fulfil certain conditions: (i) be higher than that prescribed for other kinds of dismissal, with a view to the effective dissuasion of this type of dismissal; (ii) be adapted in accordance with the size of the enterprise concerned; and (iii) the amount be reviewed periodically (General Survey of 2012 on the fundamental Conventions, paragraphs 182 and 185). The Committee also notes that, with regard to the penalties applicable for acts of anti-union discrimination other than dismissal, section 39 of the draft text only provides for damages and interest in the event of the violation of section 38, which prohibits any form of anti-union discrimination by the employer. Recalling that the existence of legal provisions prohibiting acts of anti-union discrimination is not enough if they are not accompanied by effective and rapid procedures to ensure their application in practice (General Survey of 2012 on the fundamental Conventions, paragraphs 190 and 193), the Committee requests the Government to ensure that the revised Labour Code provides for such penalties for acts of anti-union discrimination.

Article 2. Adequate protection against acts of interference. The Committee previously requested the Government to provide detailed information on the progress achieved at the legislative level in expanding protection against acts of interference. Noting that the draft text of the Labour Code does not contain provisions in this regard, the Committee requests the Government to ensure that the Labour Code currently being revised provides that trade unions and employers’ organizations shall enjoy adequate protection against any acts of interference by each other.

Article 4. Promotion of collective bargaining. Section 40 of the Labour Code. The Committee previously requested the Government to specify whether, beyond the function of assisting trade union delegates mentioned by the Government, the new provisions of the draft text of the Labour Code explicitly recognize the right of federations and confederations to conclude collective agreements themselves. The Committee notes the Government’s indication that the draft text of the Labour Code, in Title V, empowers the representatives of federations to assist trade union delegates in the discussions on collective agreements. The Committee observes that section 48 of the draft text of the Labour Code reflects the spirit of the provision of the Labour Code that is currently in force and does not explicitly refer to the right of federations and confederations to conclude collective agreements themselves. The Committee requests the Government to amend section 48 of the draft text of the Labour Code to explicitly recognize the right of federations and confederations to conclude collective agreements themselves. The Committee once again requests the Government to provide copies of any collective agreements negotiated and concluded by federations or confederations.

Collective bargaining with non-unionized actors. In its previous comments, the Committee raised the need to revise the Labour Code in order to ensure that bargaining with non-unionized actors can only take place in the absence of a union in the bargaining unit. The Committee notes that the draft text of the Labour Code provides: (i) in section 4 that collective labour accords are establishment collective agreements concluded by one or more representative trade union organizations, while collective agreements, which may have a broader scope of application, are concluded by trade union representatives or “occupational groupings of workers”; and (ii) section 252 of the draft text of the Labour Code provides that staff delegates may conclude establishment agreements, either to supplement collective agreements or to set minimum conditions of work and employment in the absence of collective agreements, and that staff delegates may be assisted by representatives of their union. In view of the above, the Committee requests the Government to: (i) ensure that staff delegates can only negotiate establishment agreements in the absence of a union in the unit concerned; and (ii) specify the meaning of the concept of occupational grouping of workers and ensure that the recognition of the right to collective bargaining for these groupings does not prejudice trade unions.

Sections 367 to 370 of the Labour Code. Conciliation and arbitration. The Committee previously requested the Government to provide information on the amendment of sections 367 to 370 of the Labour Code that is currently in force which appear to establish a procedure whereby all collective disputes are subject to conciliation and, failing resolution, to arbitration. The Committee notes that sections 458 to 461 of the draft text of the Labour Code reproduce the provisions of sections 367 to 370 of the Labour Code that is currently in force without substantive modification. In this regard, the Committee recalls 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 certain specific circumstances, namely: (i) in essential services in the strict sense of the term, that is those the interruption of which would endanger the life, health or personal safety of the whole or part of the population; (ii) in the case of disputes in the public service involving public servants engaged in the administration of the State; (iii) when, after protracted and fruitless negotiations, it becomes obvious that the deadlock will not be broken without some initiative by the authorities; or (iv) in the event of an acute crisis (General Survey of 2012 on the fundamental Conventions, paragraph 247). The Committee therefore requests the Government to amend sections 458 et seq. of the draft text of the Labour Code as indicated above.

Articles 4 and 6. Right to collective bargaining of 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 that is currently in force provides for the possibility for the personnel of public services, enterprises and establishments that are not governed by specific conditions of service to conclude collective agreements. The Committee requested the Government to: (i) provide a list of public services and establishments that are not governed by specific legislative or regulatory conditions of service; (ii) specify whether the public servants in public establishments governed by such conditions of service can participate in genuine mechanisms for the collective bargaining of their terms and conditions of work and employment; and (iii) indicate whether the provisions of section 211 are affected by the text of the draft Labour Code. Noting that section 255 of the draft text of the Labour Code takes up the provisions of section 211 in identical terms, and in the absence of information provided by the Government on this point, the Committee requests the Government to indicate, on the one hand, the list of public services and establishments that are not governed by specific legislative or regulatory conditions of service and, on the other, whether, in law or practice, public servants who are governed by such conditions of service can participate in genuine mechanisms for the collective bargaining of their terms and conditions of work and employment.

The Committee requests the Government to ensure that the provisions referred to above are amended as indicated so that the Labour Code that is adopted is in full conformity with the Convention.

The Committee is raising other matters in a request addressed directly to the Government.