Observation (CEACR) - adopted 2001, published 90th ILC session (2002)

The Committee notes the Government’s report and the comments made by the National Council of Organized Workers (CONATO) in a communication dated 21 August 2001.

1. The Committee had previously requested the Government to take measures to reduce the length of conciliation procedures (35 working days) set out in Decree No. 3 of January 1997, applicable to export processing zones, which could impede the application of Article 4 of the Convention. The Committee notes the Government’s indication in its report that the special commission for disputes sets the following time limits which, in its opinion, are reasonable, for conciliation procedures: ten days for the party to contest the allegations; 20 days to achieve a negotiated solution; and, if the parties have not reached an agreement, the above commission has five days to submit a proposed solution to the parties. The Committee notes that, according to the Government, during these periods the parties may continue negotiating directly and, if they consider it appropriate, may have recourse to an arbitration tribunal.

2. The Committee also noted the 310th and 318th Reports of the Committee on Freedom of Association (June 1998 and November 1999), in which the latter examined Case No. 1931, submitted by two employers’ organizations. The Committee shared the opinion of the Committee on Freedom of Association and emphasized the need to amend: (1) section 427(3) of the Labour Code, which restricts the composition of the representatives of the parties (delegates and advisers) to the collective bargaining process, so that the parties themselves may determine this issue; (2) section 510(2) of the Labour Code, which imposes disproportionate penalties for withdrawal from the conciliation procedure and failure to reply to statements of claims; and (3) the restricted possibilities for the collective negotiation of the payment of wages in the event of a strike (section 154 of the Code).

The Committee notes the Government’s statements, and particularly that: (1) the Government expresses great interest in complying with ILO standards, but unfortunately does not have the necessary Parliamentary majority; (2) the workers’ organizations have expressed their total opposition to the reforms concerned; (3) this problem can only be resolved through social dialogue and the Government is promoting such dialogue through four technical projects supported by the ILO and other bodies to create the conditions for achieving draft legislation agreed to by employers and workers; and (4) the Government has requested the technical assistance of the ILO in relation to the reforms and, through the national tripartite delegation to the 89th Session of the Conference, has sought ways of finding a solution with the International Labour Standards Department, which resulted in the idea of organizing seminars on international labour standards to promote the harmonization of the national legislation with Conventions. The Government hopes that these seminars can be organized in 2002.

The Committee emphasizes the need to amend the above legal provisions and hopes that the legislative reforms will be undertaken in the very near future.

3. The Committee notes that the comments of the CONATO on the application of the Convention refer in particular to: restrictions on the right to collective bargaining in the public sector, the maritime sector, enterprises in export processing zones and enterprises that have been established for less than two years; collective bargaining by groups of non-unionized workers in the private sector, even where a trade union exists, in the context of acts of interference by the employer; the rejection by the employer of statements of claims in certain cases, such as where trade unions threaten collective action or where agreements already exist concluded by representatives of non-unionized workers; and certain specific acts of anti-union discrimination. The Committee notes the Government’s comments in this respect, in which it denies and comments on CONATO’s statements from the point of view of the legislation.

In view of the high number of questions raised concerning the application of the Convention, the Committee suggests that the Government should promote tripartite discussions on these matters and that, after consulting the employers’ and workers’ organizations, it should consider the possibility of jointly requesting the technical assistance of the ILO with a view to the Committee being able to evaluate the application of the Convention with all the elements at its disposal and being able to find solutions to the problems raised.