Direct Request (CEACR) - adopted 1990, published 77th ILC session (1990)

The Committee notes the Government's report. It also notes the conclusions of the Committee on Freedom of Association in Cases Nos. 1363 and 1367 (248th Report, approved by the Governing Body at its February-March 1987 Session) and Nos. 1478 and 1484 (265th Report, approved by the Governing Body at its May-June 1989 Session).

1. In its previous request, the Committee noted that measures to intervene in collective bargaining had been taken in the mining sector, under the terms of Presidential Decree No. 017-82-TR respecting the economic emergency, and in other sectors (the press, fishing, the textile and chemical industries).

In its report, the Government indicates that the measures taken in the mining sector (the extension of the operation of collective agreements, and the freezing of staff redundancies and adjustments in wages) are no longer in force and that no restriction now affects the process of collective bargaining.

While noting these statements, the Committee notes that measures to intervene in collective bargaining have been taken under section 211(20) of the Constitution, which empowers the President of the Republic to adopt exceptional economic measures when required by the general interest.

The Committee requests the Government to report all measures taken under this provision in future.

2. With regard to the question of the approval of collective agreements by under-directors of labour, under sections 2(b) and (c) and 5(2) of Decree No. 003-72-TR, to which the Committee referred in its previous request, the Government indicates that, since the coming into force of the national Constitution in 1980: (1) the right to bargain is guaranteed; (2) the State only intervenes in the event of the failure of bargaining between the social partners; and (3) collective agreements have statutory force. It adds that collective agreements can only be declared void under section 48 of Presidential Decree No. 006-71-TR when they provide for rights that are lower than those established by the law and regulations, and that the procedure set up under Presidential Decree No. 003-72-TR comes within the supervisory function of the administrative labour authorities whose role is to ensure that no clause prejudices the acquired rights of the workers.

The Committee notes these statements and requests the Government to indicate whether under-directors are authorised to issue directives when a collective agreement is submitted for their approval.

3. In its previous request, the Committee noted the adoption of Presidential Decree No. 009-86-TR, the provisions of which supplement or amend, as appropriate, those of Presidential Decree No. 006-71-TR. It notes in particular that section 13 of Presidential Decree No. 009-86-TR provides for recourse to compulsory arbitration in the event of the failure of bargaining during the period of direct bargaining (trato directo) or of conciliation. It also notes that refusal to bargain is regarded as a failure of bargaining (sections 18 and 26 of Presidential Decree No. 006-71-TR as amended) and authorises one of the parties to refer the dispute to compulsory arbitration under section 13 of Presidential Decree No. 009-86-TR.

The Committee also notes the draft Collective Bargaining Bill (published on 10 August 1989) which was submitted to the Committee on Freedom of Association in the context of its examination of Cases Nos. 1478 and 1484. The Committee notes that compulsory arbitration can be requested at the initiative of only one of the parties to the bargaining upon the completion of the set period for voluntary bargaining (section 420) or when a party decides to end voluntary bargaining on the grounds that the appropriate conditions for continuing the meetings have not been fulfilled (sections 415 and 420).

Like the Committee on Freedom of Association, the Committee of Experts emphasises that the collective bargaining procedure set up by law, by permitting recourse to compulsory arbitration at the initiative of only one of the parties in the event of refusal to negotiate or the expiry of the periods fixed for conciliation - a procedure that is taken up in principle in the draft Bill mentioned above - is not such as to facilitate collective bargaining since one of the parties may impede bargaining in order unilaterally to refer the solution of the dispute to the labour authority.

The Committee therefore requests the Government to review its legislation concerning the collective bargaining procedure in order to guarantee fully the development of voluntary bargaining procedures for collective agreements between employers and employers' organisations, on the one hand, and workers' organisations on the other, so that terms and conditions of employment can be settled in this manner, in accordance with Article 4 of the Convention, without this being prejudiced by the imposition of compulsory arbitration at the initiative of only one of the bargaining parties.