Observation (CEACR) - adopted 1997, published 86th ILC session (1998)

The Committee notes the report supplied by the Government.

The Committee recalls that its previous comments referred to (1) the strengthening of the penalties applicable in cases of anti-union discrimination and interference so that they are sufficiently effective and dissuasive (sections 637 and 639 of the fundamental Labour Act which limits fines to two minimum wages); and (2) certain restrictions on collective bargaining under section 473, paragraph 2, of the fundamental Labour Act, which provides that in order to negotiate a collective agreement, the trade union in question must represent an absolute majority of the workers in an enterprise, and section 507 of the same law which does not envisage the possibility that, in the absence of trade union organizations, workers' representatives may negotiate with employers.

With reference to the sanctions applicable in cases of anti-union discrimination, the Committee notes that the Government recognizes that in fact the fines established in sections 637 and 639 of the fundamental Labour Act do not represent a penalty which employers are likely to fear. In practice it states that no employers have committed the offences established in these sections. The Committee would ask the Government to monitor this carefully in the future. In this respect, the Committee requests the Government to take measures to guarantee that the sanctions applicable in cases of anti-union discrimination and interference (sections 637 and 639 of the fundamental Labour Act), are not merely symbolic but are sufficiently dissuasive and effective. The Committee recalls that legal standards are inadequate if they are not coupled with effective and expeditious procedures and with sufficiently dissuasive sanctions to ensure their application (see 1994 General Survey, op. cit., paragraph 224). The Committee requests the Government to provide information, in its next report, on all measures adopted in this respect.

With reference to the need, in all cases, for a trade union to represent the absolute majority of workers in an enterprise for the purposes of negotiating a collective agreement (section 473, paragraph 2 of the fundamental Labour Act), the Committee reminds the Government that this provision does not promote collective bargaining as it is defined in Article 4 and requests the Government to take measures to amend the provision in question so that in those cases where no union organization represents an absolute majority of workers, minority organizations may jointly negotiate a collective agreement applicable to the enterprise or negotiating unit, or at least conclude a collective agreement on behalf of their members. The Committee requests the Government to inform it, in its next report, of any measures adopted in this respect.

As regards the fact that the fundamental Labour Act does not envisage the possibility that, in the absence of trade union organizations, workers' representatives may negotiate with employers (section 507), the Committee notes that the Government explains that in accordance with legislation collective bargaining must be conducted through a trade union.