Direct Request (CEACR) - adopted 2003, published 92nd ILC session (2004)

The Committee notes with interest the first report sent by the Government.

Article 2 of the Convention. Right of Workers, without distinction whatsoever, to establish and join organizations of their own choosing without previous authorization. The Committee notes that section 3 of Trade Unions Act No. 21-C/92 provides that first-level organizations must include in their membership at least 30 per cent of the workers in the occupational branches and sectors of economic activity at the provincial level. The Committee recalls that the minimum number of members should be set at a reasonable level so as not to hinder the establishment of organizations and requests the Government to take the necessary measures to amend this provision so as to lower the percentage of workers necessary to form a first-level organization.

Article 3. Right of workers’ organizations to organize their administration and activities. The Committee notes that section 2.2 of Strike Act No. 23/91 (hereinafter, the Strike Act) provides that any reduction or alteration of the timing and methods of work agreed collectively that does not imply a refusal to work is not considered a strike  and is in consequence subject to disciplinary action. The Committee has recalled that any work stoppage, however brief and limited, may generally be considered as a strike. This is more difficult to determine when there is no work stoppage as such but a slowdown in work (go-slow strike) or when work rules are applied to the letter (work to rule); these forms of strike action are often just as paralysing as a total stoppage. The Committee is therefore of the opinion that restrictions as to the forms of strike action can only be justified if the action ceases to be peaceful (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 173). The Committee requests the Government to amend this provision so as to ensure that these other forms of collective action are not subject to disciplinary action.

The Committee notes that section 6 of the Strike Act provides for the prohibition of strike action for civilian workers of the military institution. The Committee is of the opinion that a distinction should be made between those civilian workers engaged in activities related to the national defence and those that provide auxiliary work, such as cleaning, secretarial services, and catering. It requests the Government to indicate the measures taken or envisaged to ensure that the latter may have recourse to industrial action without penalty.

The Committee notes that section 10 of the Strike Act provides that a requirement of two-thirds of the workers present in the assembly is necessary to declare a strike. The Committee has considered that if a member State deems it appropriate to establish in its legislation provisions which require a vote by workers before a strike can be held, it should ensure that account is taken only of the votes cast, and that the required quorum and majority are fixed at a reasonable level (see General Survey, op. cit., paragraph 170). It requests the Government to indicate the measures taken or envisaged to amend section 10 so as to ensure that the number of workers necessary to declare a strike is reasonable.

The Committee further notes that this section provides for the right of the employer to request the presence of the public authority at an assembly for the calling of a strike in order to verify the regularity of its constitution and the adoption of the decisions. The Committee considers that workers should be free to organize their administration and activities and to formulate their programmes without interference from the public authorities and that any control of strike ballots should be carried out by independent authorities. It therefore requests the Government to indicate the measures taken or envisaged to amend this provision in this regard.

The Committee notes that section 20.3 of the Strike Act provides for the requisitioning of workers in the case of strikes in services that go beyond the definition of essential services in the strict sense of the term (those the interruption of which might endanger the life, personal safety or health of the whole or part of the population). In this regard, the Committee recalls that it does not consider post offices, fuel distribution, collective transportation and the loading and unloading of foodstuffs as essential services. The Committee considers that recourse to striker replacements seriously impairs the right to strike and affects the free exercise of trade union rights. It therefore requests the Government to amend this provision in order to allow the requisitioning of workers only to ensure the operation of essential services in the strict sense of the term.

The Committee notes that section 27 of the Strike Act provides for sanctions of imprisonment and fines for the organizers of a strike that has been forbidden, declared illegal or suspended. The Committee considers that sanctions for strike action should be possible only where the prohibitions in question are in conformity with the principles of freedom of association. Moreover, 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. In any case, a right to appeal should exist in this respect (see General Survey, op. cit., paragraph 177). The Committee requests the Government to indicate the measures taken or envisaged to ensure that workers are not sanctioned for legitimate industrial action and that sanctions of imprisonment are only resorted to in the case of violent acts of a criminal nature.

The Committee also requests the Government to provide information on the following points:

-  Section 3(6) of the Trade Unions Act provides that first-level organizations can be established on the basis of enterprise organizations. The Committee requests the Government to indicate the manner in which first-level organizations function and their relation with enterprise organizations.

-  Section 31 of the Trade Unions Act provides that all workers have the right to hold trade union office. In this case, the employment contract is suspended without loss of rights or seniority. The Committee requests the Government to indicate whether such suspension is simply a worker’s right or whether all union officers must suspend their employment temporarily.

-  Section 3 of the Strike Act does not refer to sympathy strikes or protest actions for economic and social policy considerations affecting workers. The Committee requests the Government to indicate whether such strike action can be exercised without penalty.

-  Section 8 of the Strike Act:

n  Subsection 8.1 provides that the right to strike of workers in ports, airports, railways, air and maritime transport and any other enterprise that provides services or goods that are essential for the army shall be exercised in a manner that does not affect the supplies necessary for the national defence. The Committee requests the Government to indicate the manner in which the level of the necessary supplies and the minimum services required for their provision are established.

n  Subsection 8.2 provides that in the above case the period of negotiation shall be increased to 30 days and that the conciliation and mediation procedures provided by the Ministry of Labour, Public Administration and Social Security, as set out in section 14, are compulsory. The Committee requests the Government to indicate the manner in which this provision is applied.

n  Subsection 8.4 provides for the suspension of the right to strike by a resolution of the Ministerial Council in the event of situations affecting the public order or public calamities. These provisions may be extended by decision of the People’s Assembly. The Committee requests the Government to indicate the precise meaning of the phrase "situations affecting the public order or public calamities" and the circumstances and the number of occasions in which this provision has been applied. The Committee recalls that repeated recourse to the suspension of strikes by means of a resolution of the Ministerial Council or the People’s Assembly could be an obstacle to the right of workers to go on strike. The Committee considers that measures of this nature should be adopted by an independent authority, such as the judiciary.

-  Finally, the Committee observes that sections 20 and 28 of Act No. 20-A/92 provide that collective disputes in public utility enterprises may be settled by the Ministry of Labour, Public Administration and Social Security. Recalling that compulsory arbitration should only be possible in the case of essential services or for public servants exercising authority in the name of the State, the Committee requests the Government to indicate the manner in which this article is applied, especially taking into account section 20 of the Strike Act which provides that workers and trade union bodies are under the obligation to provide the necessary services, through pickets, in order to satisfy the basic needs of the population. The Committee further requests the Government to indicate the precise meaning of the term "pickets" in this context, and the manner in which the minimum services required in such cases are established.