Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee notes the Government’s report. It notes in particular the Government’s statement that the Minister of Labour has decided to set up a tripartite committee in order to review the Law on Trade Unions No. 35 of 1976, as well as the draft Labour Code, in the light of the observations formulated by the Committee in recent years.

The Committee recalls that its previous comments concerned the following points.

1. Articles 2, 5 and 6 of the Convention. In its previous comments, the Committee had requested the Government to amend sections 7, 13 and 52 of Act No. 35 of 1976, as well as sections 14, 16, 17 and 41 of Act No. 12 of 1995 to ensure that all workers who so wish have the right to establish occupational organizations outside the existing trade union structure. The Committee had recalled in this respect the importance of the right of workers to establish organizations of their own choosing, that this right was breached where the law maintained a trade union monopoly and that the preference of the trade union movement for a unified system was not sufficient to justify a monopoly established by law. The Committee once again urges the Government to ensure that sections 7, 13 and 52 of Act No. 35 of 1976, as well as sections 14, 16, 17 and 41 of Act No. 12 of 1995, are amended to secure for all workers the right, should they so wish, to establish occupational organizations at all levels outside the existing trade union structure and it requests the Government to keep it informed of the ongoing review of the labour legislation that has been undertaken by the tripartite committee referred to above.

2. Article 3. The Committee recalls that its previous comments concerned sections 41 and 42 of Act No. 12 of 1995. The Committee had noted that section 41 provides that the date and procedure for nomination and election to the executive boards of trade union organizations shall be determined by a decision of the competent Minister, with the approval of the General Confederation of Trade Unions. Section 42 sets out the manner of filling vacancies and also permits the General Confederation to determine the conditions and modalities of the dissolution of such boards in the event of a reduction in the number of members. In this regard, the Committee recalls that the procedures for the nomination and election to trade union office should be fixed by the rules of the organization concerned, and not by law or by the single trade union central organization designated by the law. The Committee thus expresses the firm hope that the Government will make the necessary amendments to ensure that each workers’ organization is able to elect its representatives in full freedom in accordance with Article 3 of the Convention.

With reference to sections 62 and 65, the Committee had recalled that it is contrary to Article 3 to empower the single central trade union organization designated by the law to exercise financial control. It once again requests the Government to take the necessary measures to ensure that section 62, which provides that the Confederation shall determine the financial rules of trade unions and obliges lower level unions to pay a certain percentage of their income to higher level organizations, and section 65, which provides that the Confederation shall control all trade union activities, are amended so that workers’ organizations have the right to organize their administration, including their financial activities, without interference, in accordance with Article 3.

3. Articles 3 and 10. The Committee has been commenting for several years on the following provisions:

(i)  sections 93 to 106 of the Labour Code, as amended by Act No. 137 of 1981, providing for compulsory arbitration at the request of one of the parties in services other than those that are essential in the strict sense of the term;

(ii)  section 70(2)(b) of Act No. 35 of 1976 authorizing the Public Prosecutor to ask the criminal courts to remove from office the executive committee of a trade union that has provoked work stoppages or absenteeism in a public service; and

(iii)  section 14(i) of Act No. 12 of 1995 requiring the General Confederation to approve the organization of strike action.

The Committee notes in this respect the Government’s reference once again to a draft Labour Code. It trusts that this Code will be adopted in the near future and that it will ensure full conformity with the provisions of the Convention. It requests the Government to transmit a copy of the new draft Labour Code as soon as it is adopted.

In addition, a request regarding certain points is being addressed directly to the Government.