Observation (CEACR) - adopted 1994, published 81st ILC session (1994)

The Committee notes the information supplied by the Government representative at the Conference Committee in 1993 and the discussions held in the same Committee. The Committee also notes the provisions on freedom of association in the new Labour Code of 29 October 1993. The Committee recalls its previous comments referred to:

- the recognition of the right of public servants to associate only for cultural and social reasons, but not to promote and defend their occupational interests (Act No. 200, section 31);

- the ban on adopting collective resolutions against measures taken by the competent authories (Act No. 200, section 36);

- the ban on strikes and work stoppages in too wide a range of public services which are not essential in the strict sense of the term (sections 358(c), 360 and 367 of the former Labour Code of 1961);

- the requirement of three-quarters of the workers actively employed in an enterprise, or two-thirds of the members of a union in order to call a strike (section 353 of the former Labour Code);

- referral of collective disputes to compulsory arbitration and the dismissal of workers who have stopped work before the conciliation and compulsory arbitration procedures have been exhausted (sections 284, 291, 293, 302 and 308 of the Code of Labour Procedure);

- the ban on subsidies or economic assistance for trade unions from foreign organizations (section 285 of the former Labour Code).

The Committee notes with satisfaction that the new Labour Code of 1993, by virtue of the National Constitution of 1992, repeals (Article 412) the Labour Code of 1961 thus nullifying a number of legal provisions on which the Committee has been commenting for several years.

The new Labour Code abolishes the ban on strikes in public services (sections 358(c), 360 and 367 of the former Labour Code); reduces the number of union members required to call a strike to an absolute majority (sections 363 and 298(e) and the penultimate paragraph of the new Code); abolishes the ban on subsidies or economic assistance to unions from foreign organizations (section 285 of the former Labour Code). It also allows sympathy strikes and general strikes (section 366 of the new Code).

With regard to recognition of the right of public servants to associate only for cultural and social purposes, and the ban on adopting collective resolutions against measures taken by the competent authorities, the Committee had already noted with interest that the new Constitution of 1992 establishes the right of association and the right to strike of workers in both the private and public sectors (articles 96 and 98, respectively).

The Committee notes with satisfaction that the new Labour Code (section 291) allows public service unions to represent their members before the competent authorities in order to defend their common interests (subsection (b)), to go to the relevant institutional authority with members' requests or a complaint from any member concerning treatment (subsection (c)), and to negotiate working conditions and collective labour agreements (subsection (k)). In addition, the Committee observes that section 2 of the new Labour Code excludes from the scope of the Code employees of the State in both the Central Administration and Decentralized Agencies, who come under special legislation.

The Government trusts that Act No. 200 is no longer in force, particularly sections 31 and 36 (which are contrary to the Convention), asks the Government to state whether it has been repealed and hopes that the provisions of the Convention will be taken into account when the special legislation on public servants is drafted.

While noting with interest that under article 97 of the new Constitution arbitration is optional, the Committee asks the Government to state whether sections 284, 291, 293, 302 and 308 of the Code of Labour Procedure (concerning compulsory arbitration and the dismissal of workers who have stopped work during the procedure) have been repealed.

With regard to the requirement of a minimum of 300 workers to constitute industrial unions (section 292 of the Code), the Committee considers that this number is too high and may make it difficult for workers in this sector to form unions.

With regard to the provision that only members of the enterprise and active members of a union may hold union office (sections 298(a) and 293(d)), in the Committee's opinion provisions of this kind may prevent qualified persons, such as pensioners or full-time union officers, from carrying out union duties. For the purpose of bringing legislation which restricts union office into conformity with the principle of free election of representatives, it is necessary at least to make these provisions more flexible by admitting as candidates persons who have previously been employed in the occupation or enterprise concerned and by exempting from the active membership requirement a reasonable proportion of the officers of an organization (see 1984 General Survey on Freedom of Association and Collective Bargaining, para. 117).

The Committee asks the Government to take steps, in consultation with the social partners, to amend the legislation so as to reduce the minimum number of workers required to form industrial unions and enable workers to elect their representatives in full freedom.

The Committee asks the Government in its next report to inform it of the steps taken to bring the legislation into line with the requirements of the Convention, and of developments in the preparation and adoption of special legislation for public servants, and reminds the Government that it may request ILO technical assistance on these matters.

The Committee raises a number of other points in a request addressed directly to the Government.