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Act on the right to organize in the public services (Act No. 18/2014)

The Committee takes note of the Government’s indication that a revision process of the Act on the right to organize in the public services (Act No. 18/2014) is underway. The Committee hopes that this ongoing revision process, which should be conducted in full consultation with the most representative workers’ and employers’ organizations, will take into account its comments on the provisions below with a view to bringing them into full conformity with the Convention. The Committee requests the Government to keep it informed of the progress achieved and to provide a copy of the new Act after its adoption.
Article 2 of the Convention. Right of workers, without distinction whatsoever, to establish and to join organizations of their own choosing without previous authorization. The Committee had previously noted that section 4 of the Act provides that the exercise of freedom of association by 16 categories of public servants (including officers of the police, the armed forces, prison services, migration services, public relief services, magistrates and various categories of public servants exercising managerial functions or in positions of trust) will be regulated by specific legislation. It had also noted that section 57 of the Act provides that all public servants and employees may, if they so wish, establish and join trade union organizations, with the exception of the public servants referred to in subsections (d) and (e) of section 4, which relate to public servants in positions of trust, diplomatic posts and officers of paramilitary forces, including forest guards and inspectors. After recalling that the right to establish and join occupational organizations shall be guaranteed for all employees in the public service and that only the armed forces and the police may be excluded from the guarantees of the Convention, the Committee requested the Government to amend section 57 of the Act and to provide any relevant information concerning the adoption of the specific legislation referred to in section 4 of that Act. Noting the Government’s indication that these issues will be addressed in the discussions held as part of the revision process, the Committee requests the Government to keep it informed of any progress made regarding the amendment of section 57 of the Act and once again requests the Government to provide information regarding the specific legislation mentioned in section 4 of the Act.
Article 3. Election of trade union representatives in full freedom. In its previous comments, the Committee had noted that section 18(2) of the Act provides that only members who, in accordance with the law, have the status of public servants may be designated trade union representatives. The Committee had also noted that section 3 of the Act stipulates that its scope of application also includes public servants and employees who are retired. Recalling that the limitation of access to the function of trade union representation to one profession or, as in the present case, to a specific professional status, may impair the right of organizations to elect their representatives in full freedom, the Committee requested the Government to indicate whether section 18(2) allows retired public servants to be appointed as trade union representatives and, should the Act not allow retired officials to be elected, to amend this provision. The Committee notes that the Government indicates that this aspect will also be discussed during the revision process and that the information requested will be provided once the new Act is approved. While taking due note of the Government’s statement, the Committee expects that the revision process will ensure that legislation is amended so as to not preclude retired public employees from being able to be elected as union officers. The Committee requests the Government to keep it informed of any evolution in this respect.
Article 3. Right of trade union organizations to formulate their programmes in full freedom. The Committee had previously noted that section 7(3) of the Act provides that the exercise of the right to strike by public servants and employees shall be regulated by specific legislation. The Committee requested the Government to provide full information on the adoption of the legislation in question and to indicate the rules which currently govern the exercise of the right to strike by public servants and employees. Noting the Government’s indication that these matters will be addressed during the revision process, the Committee expects that they will be clarified and requests the Government to provide information on any development in this regard. The Committee also reiterates its request for the Government to specify which rules currently regulate the exercise of the right to strike by public servants and employees.
Article 4. Dissolution of trade unions by judicial authority. The Committee had previously noted that section 17(c) of the Act provides that a trade union may be dissolved by judicial decision further to an action by the Attorney General, not only when it is found that the true objectives of the organization are unlawful, but also when they are contrary to public morals or very different from the aims set out in its statutes. The Committee had considered that the last two grounds enumerated in section 17(c) were vague in nature and could give rise to decisions liable to impair the guarantees set out in the Convention. Emphasizing the importance of having the grounds justifying the judicial dissolution of trade unions set out precisely in the legislation and confined to serious violations of the legal provisions in force, the Committee noted with regret the absence of any developments and expected that all necessary measures would be taken by the Government, in full consultations with social partners, so as to amend section 17(c) of the Act. The Committee notes that the Government, in its report, states that it will be able to pronounce itself on this matter after the revision process is completed. The Committee expects that, within the framework of the revision process, the Government will take all necessary measures to ensure that section 17(c) of the Act is amended in light of the above and requests the Government to keep it informed of any progress made in this respect.

Labour Act (Act No. 23/2007)

Article 3. Right of trade unions to formulate their programmes. The Committee had previously requested the Government to take the necessary measures to amend the following provisions of the Labour Act:
  • – section 189, which provides for compulsory arbitration for the essential services listed in section 205, which include the postal services, the loading and unloading of animals and perishable food stuffs, fuel supply, private security services and export processing zones (section 206 and Decree No. 75/99). The Committee recalled that compulsory arbitration to end collective labour disputes or strikes is acceptable only in cases where the strike may be restricted or prohibited, namely in the case of a dispute involving public servants exercising authority in the name of the State or 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 in situations of acute national crisis. Under these conditions, the Committee considered that disputes which may arise in services enumerated in the Labour Act should not be subject to compulsory arbitration and could be resolved within the framework of the mediation and conciliation procedures established by law;
  • – section 207, which provides that the strike notice shall indicate the duration of the strike. In this regard, the Committee noted the Government’s indication that this provision may be construed as allowing a strike of limited or unlimited duration, as nothing in the law imposes a time limit on strikes. The Committee considered in this regard that the wording of section 207 should be amended to provide explicitly for the right of workers and their organizations to call a strike of unlimited duration; and finally
  • – section 212, under which a strike may be ended by a decision of the mediation and arbitration body. In this regard, the Committee previously noted the Government’s indication that section 212(1) provides for other procedures for ending strikes, including agreement between the parties concerned or a decision by a trade union organization. The Committee recalled its view that a decision to put an end to industrial action must be taken by the workers and organizations which called the strike, and not by a mediation body.
In its last direct request, while noting the Government’s indication that it was in the process of reviewing the Labour Act and that all observations and comments made by the Committee would be taken into consideration for action, the Committee expected that the Government would take the necessary measures, in full consultation with social partners, to bring all the above-mentioned provisions into conformity with the Convention. The Committee notes that the Government, in its report, emphasizes that the amendment of sections 189, 207 and 202 is dependent on the approval of the new Labour Act and that these and other related questions may be answered after the revision is completed. The Committee trusts that the revision will be completed shortly and that the new Labour Act will ensure full conformity of all the provisions described above with the requirements under the Convention. It requests the Government to indicate all progress achieved in this respect.
The Committee reminds the Government of the possibility to avail itself of the technical assistance of the Office in relation with the revision of the Acts referred to above.

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In its previous observation, the Committee noted with regret the lack of action taken by the Government to investigate alleged acts of violence against striking workers in the sugar-cane plantation sector and emphasized that where such cases are brought to the Government’s attention, the competent authorities should begin an inquiry immediately and take appropriate measures to bring the perpetrators to justice. The Committee notes that the Government emphasizes that, through the Labour Mediation and Arbitration Commission (COMAL) and the General Inspection of Labour, it is committed to rigorously investigate the events to ascertain the facts and apply the appropriate sanctions to bring about justice. It further notes the Government’s indication that it will provide information on the matter in its next reports. Recalling that the abovementioned allegations were brought to the Government’s attention in 2008, the Committee expects that the events will be investigated shortly, and urges the Government to provide detailed information on the results of the inquiry and, in case of conviction, on the sanctions imposed.
The Committee also takes note of the observations of Public Services International (PSI) received on 1 October 2020, which refer to the conclusions of the Committee on Freedom of Association in Case No. 3296 and denounce the failure by the Government to amend the legislation to facilitate the registration of a public sector union. The Committee requests the Government to provide its comments thereon.
Article 2 of the Convention. Registration of workers’ and employers’ organizations. In its last observation, the Committee expected that the Government would take the necessary legislative measures, in full consultation with the social partners, to bring into conformity with the Convention section 150 of the Labour Act, which allows the central authority of the labour administration an unduly restrictive period of 45 days to register a trade union or an employers’ organization. It also requested the Government to provide information on the current application in practice of section 150 in the meantime (number of trade unions registered in a year and the time taken by the requesting authorities to register a union). The Committee notes the Government’s indication that: (i) the revision process of the Labour Act is not yet completed; (ii) the information on the number of trade unions registered in a year will be provided as soon as available; and (iii) the information on the time taken by the requesting authorities to register a union will be provided as soon as the new Labour Act is approved. The Committee expects that the revision process of the Labour Act will be completed in the near future and that, in full consultation with the social partners, the Government will take the necessary measures to ensure that section 150 is brought into line with the Convention. It requests the Government to inform of any evolution in this respect and to provide a copy of the new Labour Act once adopted. The Committee also reiterates its request for the Government to provide information on the practical application of the existing provision, specifically for the years 2019, 2020, and 2021 (number of trade unions registered in a year and the time taken by the requesting authorities to register a union).
Article 3. Penal responsibility of striking workers. The Committee previously expressed its expectation that the Government would take the necessary measures to amend section 268(3) of the Labour Act, under the terms of which any violation of sections 199 (freedom to work of non-strikers), 202(1) and 209(1) (minimum services) constitutes a breach of discipline for which workers who are on strike are liable under both civil and penal law. The Committee notes that the Government states that the Labour Act is still under revision and that it will inform of the new measures once the revision is completed. The Committee recalls that it considers that adequate safeguards and immunities from civil liability are necessary to ensure respect for the right of workers to exercise legitimate industrial action. It further recalls that no penal sanction should be imposed against a worker for having carried out a peaceful strike and on no account should measures of imprisonment be imposed except in cases of violence against persons or property or other serious infringements of rights and only pursuant to legislation punishing such acts. The Committee trusts that the Government will take all necessary measures to ensure that amendments to the abovementioned provisions are included in its revision of the Labour Act so as to bring these provisions into conformity with the Convention. The Committee requests the Government to provide information on any evolution in this regard and reminds it that it may avail itself of the technical assistance of the Office.
The Committee is raising other matters in a request addressed directly to the Government.

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Act on the right to organize in the public services (Act No. 18/2014)

Article 2 of the Convention. Right of workers, without distinction whatsoever, to establish and to join organizations of their own choosing without previous authorization. In its previous comments, the Committee had noted that section 4 of the Act on the right to organize in the public service (Act No. 18/2014) provides that the exercise of freedom of association by 16 categories of public servants (including officers of the police, the armed forces, prison services, migration services, public relief services, magistrates and various categories of public servants exercising managerial functions or in positions of trust) will be regulated by specific legislation. The Committee had also noted that section 57 of the Act provides that all public servants and employees may, if they so wish, establish and join trade union organizations, with the exception of the public servants referred to in subsections (d) and (e) of section 4, which relate to public servants in positions of trust, diplomatic posts and officers of paramilitary forces, including forest guards and inspectors. The Committee recalled that, under the terms of Article 2 of the Convention, the right to establish and join occupational organizations shall be guaranteed for all employees in the public service and that, under Article 9(1), only the armed forces and the police may be excluded from the guarantees of the Convention. The Committee requests the Government to amend section 57 of the Act on the right to organize in the public service so as to ensure the right of workers, without distinction whatsoever, to establish and join organizations of their own choosing. It requests the Government to inform of all measures taken in this regard and to provide any relevant information concerning the adoption of the specific legislation referred to in section 4 of that Act.
Article 3. Election of trade union representatives in full freedom. The Committee previously noted that section 18(2) of the Act on the right to organize in the public service provides that only members who, in accordance with the law, have the status of public servants may be designated trade union representatives. The Committee had also noted that section 3 of the Act stipulates that its scope of application also includes public servants and employees who are retired, and requested the Government to indicate whether section 18(2) allows retired public servants to be appointed as trade union representatives. Should the Act not allow retired officials to be elected, the Committee requested the Government to amend this provision. The Committee recalls that the limitation of access to the function of trade union representation to one profession or, as in the present case, to a specific professional status, may impair the right of organizations, as recognized in Article 3 of the Convention, to elect their representatives in full freedom. In the absence of any new information in this regard, the Committee reiterates its previous request.
Article 3. Right of trade union organizations to formulate their programmes in full freedom. In its previous comments, the Committee had noted that section 7(3) of the Act on the right to organize in the public service provides that the exercise of the right to strike by public servants and employees shall be regulated by specific legislation. The Committee once again requests the Government to provide full information on the adoption of the legislation in question. While awaiting the adoption of this legislation, the Committee requests the Government to indicate the rules which currently govern the exercise of the right to strike by public servants and employees.
Article 4. Dissolution of trade unions by judicial authority. The Committee had previously noted that section 17(c) of the Act on the right to organize in the public service provides that a trade union may be dissolved by judicial decision further to an action by the Attorney General, not only when it is found that the true objectives of the organization are unlawful, but also when they are contrary to public morals or very different from the aims set out in its statutes. The Committee had considered that the last two grounds enumerated in section 17(c) were vague in nature and could give rise to decisions liable to impair the guarantees set out in the Convention and therefore requested the Government to amend this provision. In view of the very serious consequences on the exercise of freedom of association of a decision to proceed to the dissolution of a trade union, the Committee emphasizes once again the importance of having the grounds justifying the judicial dissolution of trade unions set out precisely in the legislation and also confined to serious violations of the legal provisions in force. Noting with regret the absence of any new developments in this regard, the Committee reiterates its previous requests and expects that all necessary measures will be taken by the Government, in full consultations with social partners, so as to amend section 17(c) of the Act on the right to organize in the public sector as indicated.

Labour Act (Act No. 23/2007)

Article 3. Right of trade unions to formulate their programmes. The Committee had previously requested the Government to take the necessary measures to amend the following provisions of the Labour Act:
  • -section 189, which provides for compulsory arbitration for the essential services listed in section 205, which include the postal services, the loading and unloading of animals and perishable food stuffs, fuel supply, private security services and export processing zones (section 206 and Decree No. 75/99). The Committee recalls that compulsory arbitration to end collective labour disputes or strikes is acceptable only in cases where the strike may be restricted or prohibited, namely in the case of a dispute involving public servants exercising authority in the name of the State or 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 in situations of acute national crisis. Under these conditions, the Committee considered that disputes which may arise in services enumerated in the Act should not be subject to compulsory arbitration and could be resolved within the framework of the mediation and conciliation procedures established by law;
  • -section 207, which provides that the strike notice shall indicate the duration of the strike. In this regard, the Committee noted the Government’s indication that this provision may be construed as allowing a strike of limited or unlimited duration, as nothing in the law imposes a time limit on strikes. The Committee considered in this regard that the wording of section 207 should be amended to provide explicitly for the right of workers and their organizations to call a strike of unlimited duration; and finally
  • -section 212, under which a strike may be ended by a decision of the mediation and arbitration body. In this regard, the Committee previously noted the Government’s indication that section 212(1) provides for other procedures for ending strikes, including agreement between the parties concerned or a decision by a trade union organization. The Committee once again recalls its view that a decision to put an end to industrial action must be taken by the workers and organizations which called the strike, and not by a mediation body.
While noting the Government’s indication that it is in the process of reviewing the Labour Act and that all observations and comments made by the Committee will be taken into consideration for action, the Committee expects that the Government will take the necessary measures, in full consultation with social partners, to bring all the abovementioned provisions into conformity with the Convention. It requests the Government to provide information on any progress achieved in this regard.
The Committee recalls that the Government can avail itself of the technical assistance of the ILO.

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The Committee had previously requested the Government to provide its comments on the 2008 observations made by the International Trade Union Confederation (ITUC) regarding the serious acts of violence committed against striking workers in the sugar-cane plantation sector. The Committee notes the Government’s indication that the Labour Mediation and Arbitration Commission (COMAL), created in 2009 to promote social dialogue, has not received any reports of violence against workers in this sector. The Committee notes with regret the lack of action taken by the Government to investigate the alleged acts of violence brought to its attention by the Committee in 2008. The Committee emphasizes that where cases of alleged violence are brought to the Government’s attention, the competent authorities should begin an inquiry immediately and take appropriate measures to bring the perpetrators to justice. The Committee expects that the Government will give full effect to this principle in the future.
Article 2 of the Convention. Registration of workers’ and employers’ organizations. In its previous comments, the Committee had requested the Government to take the necessary measures to revise section 150 of the Labour Act, which allows the central authority of the labour administration an unduly restrictive period of 45 days to register a trade union or an employers’ organization. The Committee notes the Government’s indication that this matter will be considered during the revision of the current Labour Act. The Committee therefore expects that the Government will take the necessary legislative measures, in full consultation with the social partners, to bring section 150 of the Labour Act into conformity with the Convention. It requests the Government to keep it informed on any progress achieved in this regard. In the meantime, the Committee requests the Government to provide information on the application of section 150 in practice (number of trade unions registered in a year and the time taken by the requesting authorities to register a union).
Article 3. Penal responsibility of striking workers. The Committee had previously requested the Government to take the necessary measures to amend section 268(3) of the Labour Act, under the terms of which, any violation of sections 199 (freedom to work of non-strikers), 202(1) and 209(1) (minimum services) constitutes a breach of discipline for which workers who are on strike are liable under both civil and penal law. Noting the Government’s indication that the issues above will be considered for action, the Committee recalls that penal sanctions may only be envisaged where, during a strike, violence is committed against persons or property, or other serious breaches of the law, and only in accordance with the provisions punishing such offences. The Committee reiterates its previous request and expects that all necessary measures will be taken by the Government, in full consultation with the social partners, so as to amend section 268(3) of the Labour Act. It requests the Government to inform of any progress achieved in this regard.
The Committee is raising other matters in a request addressed directly to the Government.

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The Committee notes that the Government’s report has not been received. It hopes that the next report will contain full information on the matters raised in its previous comments initially made in 2015.
Repetition
Article 2 of the Convention. Right of workers, without distinction whatsoever, to establish and to join organizations of their own choosing without previous authorization. The Committee notes that section 4 of the Act on the right to organize in the public service provides that the exercise of freedom of association by 16 categories of public servants (including officers of the police, the armed forces, prison services, migration services, public relief services, magistrates and various categories of public servants exercising managerial functions or in positions of trust) will be regulated by specific legislation. The Committee also notes that section 57 of the Act provides that all public servants and employees may, if they so wish, establish and join trade union organizations, with the exception of the public servants referred to in subsections (d) and (e) of section 4, which relate to public servants in positions of trust, diplomatic posts and officers of paramilitary forces, including forest guards and inspectors. In this regard, the Committee recalls that, under the terms of Article 2 of the Convention, the right to establish and join occupational organizations shall be guaranteed for all employees in the public service and that, under Article 9(1), only the armed forces and the police may be excluded from the guarantees of the Convention. The Committee therefore requests the Government to specify the categories of public servants who do not benefit from freedom of association under the terms of section 57 of the Act on the right to organize in the public service, and to provide any relevant information concerning the adoption of the specific legislation referred to in section 4 of that Act.
Article 3. Election of trade union representatives in full freedom. The Committee notes that section 18(2) of the Act on the right to organize in the public service provides that only members who, in accordance with the law, have the status of public servants may be designated trade union representatives. The Committee observes that, under the terms of this provision, a part of state workers, and particularly public employees, who are explicitly covered by the present Act, cannot have access to functions as trade union representatives. Further noting that section 3 of the Act indicates that its scope of application also includes public servants and employees who are retired, the Committee would need supplementary information as to whether section 18(2) allows retired public servants to be appointed as trade union representatives. Recalling that the limitation of access to the function of trade union representation to one profession or, as in the present case, to a specific professional status, may impair the right of organizations, as recognized in Article 3 of the Convention, to elect their representatives in full freedom, the Committee requests the Government to indicate whether retired public servants may, under the terms of current section 18(2) of the Act on the right to organize in the public sector, be elected as trade union representatives. The Committee also requests the Government to take the necessary measures, in consultation with the trade union organizations concerned, to amend section 18(2) so that public employees, whether current or retired, are able to exercise the functions of trade union representation. The Committee requests the Government to provide information on any progress achieved in this regard.
Article 3. Right of trade union organizations to formulate their programmes in full freedom. The Committee notes that section 7(3) of the Act provides that the exercise of the right to strike by public servants and employees shall be regulated by specific legislation. The Committee requests the Government to provide full information on the adoption of the legislation in question, and to indicate, while awaiting the adoption of this legislation, which rules govern the exercise of the right to strike by public servants and employees.
Article 4. Dissolution of trade unions by judicial authority. The Committee notes that section 17(c) of the Act provides that a trade union may be dissolved by judicial decision further to an action by the Attorney-General, not only when it is found that the true objectives of the organization are unlawful, but also when they are contrary to public morals or very different from the aims set out in its statutes. In view of the very serious consequences on the exercise of freedom of association of a decision to proceed to the dissolution of a trade union, the Committee emphasizes the importance of having the grounds justifying the judicial dissolution of trade unions set out precisely in the legislation and also confined to serious violations of the legal provisions in force. In this regard, the Committee considers that the last two grounds enumerated in section 17(c) are vague in nature and could give rise to decisions liable to impair the guarantees set out in the Convention. The Committee therefore requests the Government to take the necessary measures, in consultation with the trade union organizations concerned, to amend section 17(c) of the Act on the right to organize in the public sector as indicated.
Labour Act
Article 3. Right of trade unions to formulate their programmes. The Committee recalls that in its previous comments it requested the Government to take the necessary measures to amend the following provisions of the Labour Act:
  • – section 189, which provides for compulsory arbitration for the essential services listed in section 205, which include the postal services, the loading and unloading of animals and perishable food stuffs, fuel supply, private security services and export processing zones (section 206 and Decree No. 75/99). The Committee recalls that compulsory arbitration to end collective labour disputes or strikes is acceptable only in cases where the strike may be restricted or prohibited, namely in the case of a dispute involving public servants exercising authority in the name of the State or 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 in situations of acute national crisis. Under these conditions, the Committee considers that disputes which may arise in services enumerated in the Act should not be subject to compulsory arbitration and could be resolved within the framework of the mediation and conciliation procedures established by law;
  • – section 207, which provides that the strike notice shall indicate the duration of the strike. In this regard, the Committee noted the Government’s indication that this provision may be construed as allowing a strike of limited or unlimited duration, as nothing in the law imposes a time limit on strikes. The Committee considers in this regard that the wording of section 207 should be amended to provide explicitly for the right of workers and their organizations to call a strike of unlimited duration; and finally
  • – section 212, under which a strike may be ended by a decision of the mediation and arbitration body. In this regard, the Committee noted previously the Government’s indication that section 212(1) provides for other procedures for ending strikes, including agreement between the parties concerned or a decision by a trade union organization. The Committee once again recalls its view that a decision to put an end to industrial action must be taken by the workers and organizations which called the strike, and not by a mediation body.
While noting the Government’s indication that it will submit the Committee’s recommendations concerning the amendment of section 205 of the Act to the Labour Advisory Commission, the Committee requests the Government to take the necessary measures in consultation with the social partners to amend the various provisions of the Labour Act referred to above. Recalling that the Government may have recourse to ILO technical assistance, the Committee requests the Government to provide information on any progress achieved in this regard.

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The Committee notes that the Government’s report has not been received. It is therefore bound to repeat its previous comments initially made in 2015.
Repetition
In its previous comments, the Committee noted the 2010 observations made by the International Trade Union Confederation (ITUC) concerning the application of the Convention. The Committee once again requests the Government to provide its comments in this respect. With regard to the ITUC’s observations of 2008 relating to serious acts of violence against striking workers in the sugarcane plantation sector, the Committee requests the Government to provide information on investigations carried out in relation to these matters and, in cases in which the alleged violations are found to be true, to take the appropriate measures to remedy them.
Article 2 of the Convention. Registration of workers’ and employers’ organizations. In its previous comments, the Committee requested the Government to take the necessary measures to revise section 150 of the Labour Act, which allows the central authority of the labour administration a period of 45 days to register a trade union or an employers’ organization. While noting that the Government had indicated in a previous report that this period is justified by the fact that the country does not have a modern computerized communications system, the Committee recalls that the excessive duration of the registration procedure represents a serious obstacle to the establishment of organizations, and that this time requirement should be shortened to a reasonable length, for example, not exceeding 30 days. The Committee therefore requests the Government to initiate consultations with the social partners with a view to amending section 150 of the Labour Act as indicated, and to provide information on any progress achieved in this regard.
Article 3. Penal responsibility of striking workers. In its previous comments, the Committee requested the Government to take the necessary measures to amend section 268(3) of the Labour Act, under the terms of which any violation of sections 199 (freedom to work of non-strikers), 202(1) and 209(1) (minimum services) constitutes a breach of discipline for which workers who are on strike are liable under both civil and penal law. Noting that the Government’s report does not reply to the Committee’s comment on this point, the Committee recalls that penal sanctions may only be envisaged where, during a strike, violence is committed against persons or property, or other serious breaches of the law, and only in accordance with the provisions punishing such offences. The Committee therefore requests the Government to take the necessary measures to amend section 268(3) of the Labour Act as indicated, and to provide information on any progress achieved in this regard.
The Committee is raising other matters in a request addressed directly to the Government.
The Committee hopes that the Government will make every effort to take the necessary action in the near future.

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Adoption of the Act on the right to organize in the public service

While welcoming the adoption on 27 August 2014 of the Act on the right to organize in the public service, which recognizes the freedom of association of public servants and determines the legal framework for its exercise, the Committee is addressing the following questions and comments to the Government concerning certain provisions of the Act:
Article 2 of the Convention. Right of workers, without distinction whatsoever, to establish and to join organizations of their own choosing without previous authorization. The Committee notes that section 4 of the Act on the right to organize in the public service provides that the exercise of freedom of association by 16 categories of public servants (including officers of the police, the armed forces, prison services, migration services, public relief services, magistrates and various categories of public servants exercising managerial functions or in positions of trust) will be regulated by specific legislation. The Committee also notes that section 57 of the Act provides that all public servants and employees may, if they so wish, establish and join trade union organizations, with the exception of the public servants referred to in subsections (d) and (e) of section 4, which relate to public servants in positions of trust, diplomatic posts and officers of paramilitary forces, including forest guards and inspectors. In this regard, the Committee recalls that, under the terms of Article 2 of the Convention, the right to establish and join occupational organizations shall be guaranteed for all employees in the public service and that, under Article 9(1), only the armed forces and the police may be excluded from the guarantees of the Convention. The Committee therefore requests the Government to specify the categories of public servants who do not benefit from freedom of association under the terms of section 57 of the Act on the right to organize in the public service, and to provide any relevant information concerning the adoption of the specific legislation referred to in section 4 of that Act.
Article 3. Election of trade union representatives in full freedom. The Committee notes that section 18(2) of the Act on the right to organize in the public service provides that only members who, in accordance with the law, have the status of public servants may be designated trade union representatives. The Committee observes that, under the terms of this provision, a part of state workers, and particularly public employees, who are explicitly covered by the present Act, cannot have access to functions as trade union representatives. Further noting that section 3 of the Act indicates that its scope of application also includes public servants and employees who are retired, the Committee would need supplementary information as to whether section 18(2) allows retired public servants to be appointed as trade union representatives. Recalling that the limitation of access to the function of trade union representation to one profession or, as in the present case, to a specific professional status, may impair the right of organizations, as recognized in Article 3 of the Convention, to elect their representatives in full freedom, the Committee requests the Government to indicate whether retired public servants may, under the terms of current section 18(2) of the Act on the right to organize in the public sector, be elected as trade union representatives. The Committee also requests the Government to take the necessary measures, in consultation with the trade union organizations concerned, to amend section 18(2) so that public employees, whether current or retired, are able to exercise the functions of trade union representation. The Committee requests the Government to provide information on any progress achieved in this regard.
Article 3. Right of trade union organizations to formulate their programmes in full freedom. The Committee notes that section 7(3) of the Act provides that the exercise of the right to strike by public servants and employees shall be regulated by specific legislation. The Committee requests the Government to provide full information on the adoption of the legislation in question, and to indicate, while awaiting the adoption of this legislation, which rules govern the exercise of the right to strike by public servants and employees.
Article 4. Dissolution of trade unions by judicial authority. The Committee notes that section 17(c) of the Act provides that a trade union may be dissolved by judicial decision further to an action by the Attorney-General, not only when it is found that the true objectives of the organization are unlawful, but also when they are contrary to public morals or very different from the aims set out in its statutes. In view of the very serious consequences on the exercise of freedom of association of a decision to proceed to the dissolution of a trade union, the Committee emphasizes the importance of having the grounds justifying the judicial dissolution of trade unions set out precisely in the legislation and also confined to serious violations of the legal provisions in force. In this regard, the Committee considers that the last two grounds enumerated in section 17(c) are vague in nature and could give rise to decisions liable to impair the guarantees set out in the Convention. The Committee therefore requests the Government to take the necessary measures, in consultation with the trade union organizations concerned, to amend section 17(c) of the Act on the right to organize in the public sector as indicated.

Labour Act

Article 3. Right of trade unions to formulate their programmes. The Committee recalls that in its previous comments it requested the Government to take the necessary measures to amend the following provisions of the Labour Act:
  • – section 189, which provides for compulsory arbitration for the essential services listed in section 205, which include the postal services, the loading and unloading of animals and perishable food stuffs, fuel supply, private security services and export processing zones (section 206 and Decree No. 75/99). The Committee recalls that compulsory arbitration to end collective labour disputes or strikes is acceptable only in cases where the strike may be restricted or prohibited, namely in the case of a dispute involving public servants exercising authority in the name of the State or 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 in situations of acute national crisis. Under these conditions, the Committee considers that disputes which may arise in services enumerated in the Act should not be subject to compulsory arbitration and could be resolved within the framework of the mediation and conciliation procedures established by law;
  • – section 207, which provides that the strike notice shall indicate the duration of the strike. In this regard, the Committee noted the Government’s indication that this provision may be construed as allowing a strike of limited or unlimited duration, as nothing in the law imposes a time limit on strikes. The Committee considers in this regard that the wording of section 207 should be amended to provide explicitly for the right of workers and their organizations to call a strike of unlimited duration; and finally
  • – section 212, under which a strike may be ended by a decision of the mediation and arbitration body. In this regard, the Committee noted previously the Government’s indication that section 212(1) provides for other procedures for ending strikes, including agreement between the parties concerned or a decision by a trade union organization. The Committee once again recalls its view that a decision to put an end to industrial action must be taken by the workers and organizations which called the strike, and not by a mediation body.
While noting the Government’s indication that it will submit the Committee’s recommendations concerning the amendment of section 205 of the Act to the Labour Advisory Commission, the Committee requests the Government to take the necessary measures in consultation with the social partners to amend the various provisions of the Labour Act referred to above. Recalling that the Government may have recourse to ILO technical assistance, the Committee requests the Government to provide information on any progress achieved in this regard.

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The Committee notes the observations of the Business Associations Confederation of Mozambique (CTA), attached to the Government’s report, indicating that the content of the Convention is fully taken into account in the laws and regulations in force. The Committee also notes the observations of the International Organisation of Employers (IOE), received on 1 September 2014.
In its previous comments, the Committee noted the 2010 observations made by the International Trade Union Confederation (ITUC) concerning the application of the Convention. The Committee once again requests the Government to provide its comments in this respect. With regard to the ITUC’s observations of 2008 relating to serious acts of violence against striking workers in the sugarcane plantation sector, the Committee requests the Government to provide information on investigations carried out in relation to these matters and, in cases in which the alleged violations are found to be true, to take the appropriate measures to remedy them.
Adoption of the Act on the right to organize in the public service. Further to its previous comments concerning the lack of recognition of the right to organize of public servants, the Committee notes with satisfaction the adoption of the Act on the right to organize in the public service, of 27 August 2014, which recognizes the freedom of association of public servants and establishes the legal framework for its exercise. The Committee is addressing this subject with a series of questions for the Government in a direct request.
Article 2 of the Convention. Registration of workers’ and employers’ organizations. In its previous comments, the Committee requested the Government to take the necessary measures to revise section 150 of the Labour Act, which allows the central authority of the labour administration a period of 45 days to register a trade union or an employers’ organization. While noting that the Government had indicated in a previous report that this period is justified by the fact that the country does not have a modern computerized communications system, the Committee recalls that the excessive duration of the registration procedure represents a serious obstacle to the establishment of organizations, and that this time requirement should be shortened to a reasonable length, for example, not exceeding 30 days. The Committee therefore requests the Government to initiate consultations with the social partners with a view to amending section 150 of the Labour Act as indicated, and to provide information on any progress achieved in this regard.
Article 3. Penal responsibility of striking workers. In its previous comments, the Committee requested the Government to take the necessary measures to amend section 268(3) of the Labour Act, under the terms of which any violation of sections 199 (freedom to work of non-strikers), 202(1) and 209(1) (minimum services) constitutes a breach of discipline for which workers who are on strike are liable under both civil and penal law. Noting that the Government’s report does not reply to the Committee’s comment on this point, the Committee recalls that penal sanctions may only be envisaged where, during a strike, violence is committed against persons or property, or other serious breaches of the law, and only in accordance with the provisions punishing such offences. The Committee therefore requests the Government to take the necessary measures to amend section 268(3) of the Labour Act as indicated, and to provide information on any progress achieved in this regard.
The Committee is raising other matters in a request addressed directly to the Government.

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The Committee notes the comments made by the International Trade Union Confederation (ITUC) in a communication dated 24 August 2010 on the application of the Convention. The Committee requests the Government to send its observations thereon and on the ITUC’s comments of 2008 concerning serious acts of violence against striking workers in the sugar cane plantation sector.

In its previous comments, the Committee noted that a new Labour Act had been adopted (Act No. 23/2007) some provisions of which are inconsistent with the Convention, namely:

–      section 150, which allows the central body of the labour administration 45 days within which to register an employers’ or workers’ organization. The Committee pointed out that such a protracted registration procedure is a serious obstacle to the establishment of an organization, amounting to a denial of the right of workers and employers to set up organizations of their own choosing, and that this time requirement should be shortened to a reasonable length not to exceed 30 days. The Committee notes in this connection that, according to the Government, the time requirement was prescribed taking account of the country’s social and economic development and the fact that Mozambique lacks a modern and computerized communication system, which slows down the transmission of information from one region to another;

–      section 189, which allows compulsory arbitration for the essential services listed in section 205, which include the postal service, the loading and unloading of animals and perishable foodstuffs, weather monitoring and fuel supply, and also for export processing zones (section 206 and Decree No. 75/99). The Committee points out that compulsory arbitration to end collective labour disputes or strikes is acceptable only when requested by both parties to the dispute or where a strike may be restricted or prohibited, namely in the case of a dispute in the public service involving public servants exercising authority in the name of the State or in essential services in the strict sense of the term, that is, services the interruption of which would endanger the life or personal safety or public health of the whole or part of the population. In these circumstances, the Committee takes the view that any disputes arising in the above-mentioned services should not be subject to compulsory arbitration and that they could be settled under the mediation and conciliation procedures provided for by law;

–      section 207, which provides that the notice of strike must state the duration of the strike. The Committee expressed the view that workers and their organizations should be able, if they so wish, to call an indefinite strike. In this connection it notes the information from the Government to the effect that since nothing in the law imposes a time limit on strikes, this provision may be construed as allowing a strike to be unlimited in time or indefinite;

–      section 212, which allows a strike to be ended by a decision of the mediation and arbitration body. The Committee notes in this connection the Government’s specification that section 212, subsection 1, provides for other procedures for ending strikes, including agreement between by the parties concerned or a decision of the trade union organization. The Committee is of the view that such a decision should be taken only by the workers and organizations that declared the strike and not by a mediation body; and

–      section 268(3), which provides that any violation of sections 199 (freedom to work of non-strikers), 202(1) and 209(1) (minimum services), constitutes a breach of discipline for which the workers on strike are liable under both civil and penal law. The Committee points out that workers engaging in peaceful strike action should not be liable to penal sanctions and hence to any prison sentence. Such sanctions may be envisaged as regards strikes only in the event of violence against persons or property or other serious breaches of the law, and only in accordance with the provisions punishing such offences. However, even in the absence of violence, if a strike is unlawful due to breach of procedure, proportionate disciplinary sanctions may be applied against the strikers.

The Committee reminds the Government that in its previous comments it noted that the legislation was undergoing revision by a “legal reform technical unit” set up for the purpose and that some provisions of the Labour Code that are inconsistent with the Convention would be amended in due course with assistance from the ILO. The Committee accordingly requests the Government to provide detailed information in its next report on the progress made in revising the legislation, and hopes that the draft provisions will take account of the Committee’s comments on sections 189, 212 and 268(3) of the Labour Code.

Public servants. In its previous comments the Committee noted that public servants do not have the right to organize. It notes in this connection the adoption of Act No. 14/2009 of 17 March 2009 issuing the General Regulations for Civil Servants and Government Officials (EGFAE). Its notes that sections 76 and 77 provide that the establishment, merger, federation and dissolution of public servants’ unions and occupational associations and the right of public servants to strike shall be regulated by law. In these circumstances, the Committee requests the Government to indicate in its next report if such a law has been adopted and, if so, to provide a copy.

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The Committee notes from the Government’s report that a new Labour Act (Act No. 23/2007) has been adopted.

The Committee observes that some provisions of the Labour Act are not consistent with the Convention:

–      section 149, which allows the central body of the labour administration 45 days within which to register an employers’ or workers’ organization. In the Committee’s view, a protracted registration procedure is a serious obstacle to the establishment of an organization and amounts to a denial of the right of workers and employers to set up organizations of their own choosing. The Committee suggests reducing the time limit to 30 days, for example;

–      section 189, which provides for compulsory arbitration for the essential services listed in section 205 which include the postal service, the loading and unloading of animals and perishable foodstuffs, weather monitoring and fuel supply, and also for export processing zones (section 206 and Decree No. 75/99). The Committee recalls that compulsory arbitration to end  collective labour disputes or strikes is acceptable only when requested by both parties to the dispute or in cases where the strike may be restricted or prohibited, namely in the case of a dispute in the public service involving public servants exercising authority in the name of the State or 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. In these circumstances, the Committee takes the view that any disputes that arise in the abovementioned services should not be subject to compulsory arbitration and that they could be dealt with under the mediation and conciliation procedures provided for by law;

–      section 207, which provides that the notice of strike must state the duration of the strike. In the Committee’s view, workers and their organizations should be able, if they so wish, to call an indefinite strike;

–      section 212, which allows a strike to be ended by a decision of the mediation and arbitration body. The Committee considers that this is a decision for the workers and the organizations that called the strike;

–      section 268(3), which provides that any breach of sections 199 (freedom to work of non-strikers), section 202(1) and section 209(1) (on minimum services) constitutes a breach of discipline for which the workers on strike are civilly and penally liable. The Committee reminds the Government that strikes should not be subject to penal sanctions except in the event of non-compliance with prohibitions on strikes that are consistent with the principles of freedom of association, and that any penalty imposed for unlawful activities relating to strikes should be proportionate to the offence or misconduct, and that imprisonment for those organizing or participating in a peaceful strike should be excluded by the authorities.

While noting the Government’s information that the Labour Act was adopted by consensus, that the legislation is undergoing revision and a legal reform technical unit has been set up for the purpose, and that some provisions of the Labour Code that are not consistent with the Convention will be amended in due course with assistance from the ILO, the Committee expresses the hope that these amendments will be made in the near future and will cover all the points it has raised. It requests the Government to provide information in its next report on any measures taken in this regard.

Public servants. In its previous comments, the Committee noted that public servants do not have the right to organize. It noted that according to the Government, the Labour Code does not cover this matter and that through the Ministry of the Public Service a preliminary draft of a general law on public servants has been submitted to Parliament and is to regulate exercise of the right of association by this category of workers. The Committee recalls that in its previous observation it took note of a preliminary draft of a law on the exercise of trade union activities in the public administration and pointed out that the following provisions raised problems of conformity with the Convention:

–      section 2(2), which excludes firefighters, members of the judiciary and prison guards from the scope of the future Act. The Committee recalls that Article 2 of the Convention provides that all workers, without distinction whatsoever, shall have the right to establish and join organizations of their own choosing and that, in accordance with Article 9 of the Convention, only the armed forces and the police may be excluded from the right to organize;

–      section 42(2), which provides that public officials have the right to strike once conciliation, mediation and arbitration procedures have been exhausted. The Committee points out in this connection that compulsory arbitration upon application by only one of the parties in the public administration may be imposed only in the case of public servants exercising authority in the name of the State;

–      section 43, which allows disciplinary, civil and penal sanctions to be imposed when a strike affects the rights and interests of third parties, when it impedes or disrupts exercise of the right to work by officials or employees who are not on strike and when it disrupts the operation of services which are not on strike. The Committee recalls in this connection that sanctions for strike action should be possible only where the prohibitions are consistent with the principles of freedom of association; that applying disproportionate penal sanctions is not conducive to the development of harmonious and stable industrial relations; and that if penalties of imprisonment are to be imposed at all, they should be justified by the seriousness of the offences committed and should be subject to regular judicial review. In any event, a right of appeal should exist in this respect (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 177);

–      section 46(2), which establishes sentences of imprisonment and fines in instances where a strike picket obstructs the freedom of services to operate normally. The Committee refers the Government in this connection to the principle set forth in the previous paragraph.

In these circumstances, the Committee expresses the hope that the preliminary draft of the general law on public servants which will regulate the right of association and which is before Parliament, will be in full conformity with the Convention. The Committee requests the Government to provide information in its next report on the progress of this draft legislation.

Comments by workers’ organizations. In its previous observation, the Committee noted comments by the International Confederation of Free Trade Unions (ICFTU) referring to large-scale dismissals of workers in export processing zones as a reprisal for exercising the right to strike, and asked the Government to send detailed information on the circumstances in which the strike took place, the authority that declared the strike to be unlawful and the authority that allowed the dismissals. The Committee notes the Government’s response that in the case of the two strikes referred to by the ICFTU: (1) there was breach of the requirements, set in section 9 of Decree No. 75/99 of 12 October regulating working conditions in industrial export processing zones, concerning compulsory arbitration, which may be imposed ex officio by the labour administration body and prior notification of strikes, and the stipulation that strikes may be called only by the provincial or national union after confirmation from the Industrial Export-Processing Zone Council that minimum services are guaranteed; and (2) the workers dismissed filed a complaint with the Labour Court. The Committee reminds the Government that enterprise unions should likewise be able to exercise the right to strike, and refers the Government to its comments on compulsory arbitration. It recalls that dismissals of strikers on a large-scale involve a serious risk of abuse and place freedom of association in grave jeopardy. It hopes that in reviewing the dismissals in question, the judicial authorities will take into consideration the comments on the legislation.

Lastly, the Committee notes the comments of 29 August 2008 by the International Trade Union Confederation (ITUC) on the application of the Convention, and serious acts of violence against workers on strike in the sugar cane plantation sector. The Committee requests the Government to send its comments thereon.

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The Committee takes note of the Government’s report as well as the Draft Labour Code of June 2006 which has recently been sent to the Parliament. The Committee observes that the following provisions of this Code appear not to be in full conformity with the Convention.

–         Section 149 establishes that the public authority has 45 days to register the instrument of constitution of a trade union. Taking into account that during this period the trade union organizations do not enjoy legal personality, the Committee considers that this period should be shortened.

–         Section 189 provides for compulsory arbitration in case of essential services, following the list enumerated in section 205, which includes the postal services, petroleum sector, meteorological services and loading and unloading of cattle and perishable goods. The Committee considers that those services are not essential services in the strict sense of the term. In this respect, the Committee recalls that compulsory arbitration may only be imposed in the case of public servants exercising authority in the name of the State or in the case of essential services in the strict sense of the term, which are those the interruption of which would endanger the life, personal safety or health of the whole or part of the population.

–         Section 207 establishes that the trade unions have to communicate to the public authority the estimated duration of the strike. The Committee considers that it should also be possible for trade unions to declare a strike without a specified time limit.

–         Section 212 establishes that the Mediation and Arbitration Board can decide on the termination of the strike. Noting that this would imply interference in the decision of the workers with respect to the duration of the strike, the Committee considers that this provision should be eliminated.

–         Section 268(3) provides that any violation of sections 199 (freedom of access to the workplace), 202(1) and 209(1) final part (minimum services) constitutes a disciplinary infringement subject to penal and civil responsibility. The Committee recalls that all penalties in respect of unlawful strike actions should be proportionate to the offence or fault committed and the authorities should not have recourse to measures of imprisonment for the mere fact of organizing or participating in a peaceful strike.

In these conditions, the Committee hopes that the Labour Code to be adopted will be in full conformity with the Convention and requests the Government to keep it informed of the developments in this regard in its next report.

Moreover, the Committee requests the Government to provide information on the following questions.

–         Declaration of illegality of the strike. Section 211 refers to the effects of illegal strikes. However, the Draft Labour Code does not determine which authority declares such illegality. The Committee recalls that responsibility for declaring a strike illegal should not lie with the Government, but with an independent body, which has the confidence of the parties. In these circumstances, the Committee requests the Government to indicate the competent authority for the declaration of illegality of the strike.

–         Requisitioning of workers provided for in section 213 of the Draft Labour Code. The Committee recalls that this measure should only be possible in those cases in which the workers on strike have not respected the minimum services or in cases of acute national crisis. The Committee requests the Government to indicate the manner in which this provision is implemented.

–         Strike in export processing zones. Section 206 of the Draft Labour Code establishes that strikes in export processing zones should be carried on in accordance with the provisions of section 205 that regulate strikes in the essential services. The Committee recalls that, in general, services provided by the export processing zones are not essential in the strict sense of the term and that the establishment of minimum services in the case of strikes should only be possible in: (1) services the interruption of which would endanger the life, personal safety or health of the whole or part of the population (essential services in the strict sense of the term); (2) services which are not essential in the strict sense of the term but where the extent and duration of a strike might be such as to result in an acute national crisis endangering the normal living conditions of the population; and (3) public services of fundamental importance. In these circumstances, the Committee requests the Government to indicate which services are subject to minimum services in export processing zones.

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The Committee takes note of the Government’s report, as well as of the draft Labour Code recently presented to the General Assembly of the Republic.

The Committee noted in its previous comments that public servants do not have the right to organize. In this respect, the Committee notes the preliminary draft legislation on the exercise of trade union activities in the public administration which, in section 5, recognizes the right of public servants and state officials in the public administration to organize to defend and further their socio-occupational interests. The Committee further notes that, under the terms of section 2(1) of the draft text, the Act will cover the central institutions of the public administration, local state bodies and authorities, public institutions and other subordinate or dependent institutions. However, the Committee observes that certain of the provisions of the draft legislation raise problems of conformity with the Convention:

–           section 2(2) excludes firefighters, members of the judicial authorities and prison guards from the scope of the Act. The Committee recalls that Article 2 of the Convention provides that all workers, without distinction whatsoever, shall have the right to establish and to join organizations of their own choosing and that, in accordance with Article 9 of the Convention, only the armed forces and the police may be excluded from the right to organize;

–           section 42(2) provides that public officials have the right to strike once conciliation, mediation and arbitration machinery has been exhausted. In this respect, the Committee recalls that compulsory arbitration in the public administration may only be imposed in the case of public servants exercising authority in the name of the State;

–           section 43 provides for the possibility of imposing disciplinary, civil and criminal sanctions in cases in which the strike affects the rights and interests of third parties, when it impedes or disturbs the exercise of the right to work by officials or employees who are not on strike and when it disturbs the operation of services which are not on strike. In this respect, the Committee recalls that sanctions for strike action should be possible only where the prohibitions in question are in conformity with the principles of freedom of association. Even in such cases, both excessive recourse to the courts in labour relations and the existence of heavy sanctions for strike action may well create more problems than they resolve. Since the application of disproportionate penal sanctions does not favour the development of harmonious and stable industrial relations, if measures of imprisonment are to be imposed at all they should be justified by the seriousness of the offences committed and should be subject to regular judicial review. In any case, a right of appeal should exist in this respect (see 1994 General Survey on freedom of association and collective bargaining, paragraph 177);

–           section 46(2) provides for sentences of imprisonment and fines in cases in which a strike picket obstructs the freedom of services to operate normally. In this respect, the Committee refers to the principle set forth in the previous paragraph.

Under these conditions, the Committee hopes that the law that is adopted will be in full conformity with the Convention and requests the Government to provide information in its next report on developments relating to the draft legislation.

Finally, the Committee notes the comments made by the International Confederation of Free Trade Unions (ICFTU) referring to matters already raised by the Committee, as well as the dismissal of workers in export processing zones in reprisal for exercising the right to strike. The Committee notes that, according to the Government, the workers dismissed for exercising the right to strike in export processing zones did not respect the requirements provided by the legislation for declaration of strike and the minimum services. In this respect, the Committee recalls that dismissals of strikers on a large scale involve a serious risk of abuse and place freedom of association in grave jeopardy. The Committee notes with concern dismissals of strikers on a large scale. It therefore requests the Government to provide detailed information on the circumstances in which the strike took place, on the authorities which declared the strike illegal and the authority which authorized the dismissals.

In conclusion, the Committee notes the preliminary draft of the Labour Code of June 2006. The Committee is addressing a request directly to the Government with reference to this preliminary draft text and other matters.

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The Committee notes the information supplied by the Government in its last report. It recalls that its previous comments concerned public servants who have no right of association. It noted that section 3(3) of Labour Act No. 8/98 and Act No. 23/91 of 1991, regulating the exercise of freedom of association provide that the employment relationship of public servants is governed by special regulations and that, according to the information sent by the Government, the legislation does not ensure freedom of association for public servants.

In its previous comments, the Committee stressed that all public servants must have the right to establish occupational organizations, whether they are engaged in the state administration at central, regional or local level or whether they are officials of bodies which provide important public services or are employed in state-owned economic undertakings. It requested the Government to state whether the general public service regulations (Decree No. 14/87) were still in force. The Government confirms that this is the case. In its report, the Government indicates that the public sector is currently undergoing a thorough reform and that Labour Act No. 8/98 is likewise in the process of revision. The Committee hopes that the reform process will result in the adoption, in the near future, of the necessary legislative measures to ensure that public servants have the right of association not only for cultural and social purposes, but also for the purpose of furthering and defending their occupational and economic interests (see General Survey on freedom of association and collective bargaining, 1994, paragraph 52). It requests the Government to send with its next report a copy of any relevant bills or texts that have been adopted in this regard.

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The Committee takes note of the information supplied by the Government in its report. The Committee recalls that, in its previous comments, it referred to the fact that public servants are not entitled to form and join unions. Under section 3(3) of the Labour Act No. 8/98, and Act No. 23/91 of 1991, which regulate freedom of association, the legal employment relationship of public servants is governed by specific conditions of service and, according to the Government, the right of public servants to form and join trade unions is not established by law.

The Committee recalls that in its previous comment it had pointed out that all public servants and officials should have the right to establish occupational organizations, irrespective of whether they are engaged in the state administration at the central, regional or local level, are officials of bodies which provide important public services or are employed in state-owned economic undertakings. The Committee nonetheless emphasizes that the recognition of the right of association of public servants in no way prejudges the question of the right of such officials to strike (see General Survey on freedom of association and collective bargaining, 1994, paragraphs 48 and 49). The Committee asks the Government to state whether the General Statute of Public Servants (Decree No. 14/87) is still in force. The Committee once again expresses the hope that the Government will adopt legislation in the near future guaranteeing public servants the right to organize, not only for cultural and social purposes but also to further and defend their occupational and economic interests (see General Survey, op. cit., paragraph 52). The Committee reminds the Government that it may avail itself of the Office’s technical assistance.

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The Committee notes the information provided by the Government in its last report. It notes that Labour Act No. 8/85, as amended in 1998 (8/98), provides in section 3(3) that the legal employment relationship of public servants is governed by specific conditions of service. A similar provision is contained in section 35 of Act No. 23/91 of 1991 respecting the exercise of freedom of association. Furthermore, the Government indicates in its latest report that this latter legislation does not apply to public servants, who do not therefore enjoy the right of association.

The Committee emphasizes in this respect that, in accordance with Article 2 of the Convention, all public servants and officials should have the right to establish occupational organizations, irrespective of whether they are engaged in the state administration at the central, regional or local level, are officials of bodies which provide important public services or are employed in state-owned economic undertakings (see General Survey on freedom of association and collective bargaining, 1994, paragraph 49). The Committee therefore hopes that the Government will take measures in the near future to guarantee, in the special conditions of service of public servants, their right of association not only for cultural and social purposes, but also for the purpose of furthering and defending their occupational and economic interests (see General Survey, op. cit., paragraph 52). The Committee notes in this respect that the technical assistance of the Office is at the Government’s disposal to assist it in giving effect to the Convention.

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The Committee notes the information contained in the Government's first report in respect of the application of the Convention and makes the following comments:

With regard to the right of public officials to establish and join organizations of their own choosing, as laid down in Article 2 of the Convention, the Committee requests the Government to inform it whether, in practice, Act No. 23/91 is extended to this category of worker. Should this not be the case, the Committee requests the Government to inform it whether, in accordance with section 35 of the above Act, any text relative to this matter has been adopted and, if so, to transmit a copy of said text.

The Committee requests the Government to inform it of any developments in this respect in its next report.

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The Committee notes with satisfaction that the elaboration of Act No. 23/91 respecting the exercise of trade union activity provides for the principles of autonomy and independence of trade union organizations, the possibility of trade union pluralism and the protection of workers and their representatives against acts of anti-union discrimination. In particular, the Committee notes with satisfaction the following provision of Act No. 23/91:

-- section 1, which guarantees workers, without distinction whatsoever, the exercise of trade union activities for furthering and defending their rights and their social and occupational interests;

-- section 3, which provides that, in the exercise of freedom of association, workers are guaranteed the right to establish trade union organizations of their own choosing, to freely join and to renounce membership of trade union organizations;

-- section 5, which grants trade union organizations the right to draw up their constitutions, to elect their representatives in full freedom and to organize their activities and to formulate their programmes.

Similarly, the Committee notes with satisfaction Act No. 6/91, which guarantees the exercise of the right to strike and respects the principles of the right to organize.

The Committee is addressing a request directly to the Government in respect of the right to freedom of association of public officials.

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