Direct Request (CEACR) - adopted 2005, published 95th ILC session (2006)

The Committee notes the Government’s report.

Article 2 of the Convention. In its previous comments, the Committee requested the Government to amend section 19(f) of the Trade Union Act, No. 35 of 1976, as amended by Act No. 12 of 1995, so that all workers are able to join more than one organization, if they so wish, in order to be able to defend their occupational interests in cases where they are engaged in more than one occupation. In its report, the Government indicates that in practice workers may choose to be affiliated simultaneously to several trade unions and occupational organizations. The Committee requests that the Government amend its legislation accordingly so that both national law and practice are in full conformity with Article 2 of the Convention.

Article 3. In its previous comments, the Committee asked the Government to provide information on the conditions governing recourse to arbitration in the case of collective disputes in special economic zones. As the Government indicates in its report that the applicable provisions in this respect are those of the Labour Code of 2003, the Committee requests that the Government refer to the content of its previous observations on this matter.

Further, the Committee noted previously that certain categories of workers excluded from the scope of the Labour Code do not accordingly enjoy the right to strike as established by the Code (public servants in state agencies, including local public administrations and public authorities; domestic and similar workers; and workers who are members of the employer’s family and dependent upon the latter). In its report, the Government indicates that: (1) domestic workers are not organized in the country; (2) the question of the right to strike is not an issue for workers who are members of the employer’s family; and (3) public servants in state agencies, including local public administrations, are covered by the exceptions authorized by the Convention as they correspond to the category of public servants exercising authority in the name of the State. In this respect, the Committee recalls that the right to strike may be restricted or prohibited in the public service only for public servants exercising authority in the name of the State, in essential services in the strict sense of the term or in a situation of acute national crisis. Under these conditions, the Committee asks the Government to take the necessary measures to ensure that workers who are not covered by these exceptions enjoy the right to strike.

The Committee also noted previously that, under section 192 of the new Labour Code, the notification of a strike shall specify the duration of the strike. The Committee notes that, according to the Government, the specific information requested appears to be related to questions concerning the payment of wages throughout the strike period. The Committee nevertheless reiterates that the mandatory specification of the duration of a strike restricts the right of workers’ organizations to organize their activities and formulate their programmes freely, contrary to the provisions of Article 3. It therefore once again requests that the Government take the necessary measures to amend section 192 so as to ensure that there is no legal obligation for workers’ organizations to specify the duration of a strike.

Finally, the Committee noted previously that under section 69(9) of the new Labour Code, workers who have participated in strike action that infringes section 192 may be dismissed on the grounds of serious fault. In its report, the Government indicates that the penalties in question are the consequence of a breach of the legal procedures relating to strike action. In this respect, the Committee recalls that sanctions for strike action should be possible only where the prohibitions in question are in conformity with the provisions of the Convention. It therefore once again asks the Government to take the necessary measures to ensure that workers who have participated in legitimate strike action are not penalized on the grounds that the strike notice does not specify the duration of the strike.

The Committee once again requests that the Government indicate in its next report the measures adopted to bring all of the legislation referred to above into conformity with the requirements of Articles 2 and 3 of the Convention. It brings to the Government’s attention that the technical assistance of the Office is available with respect to the drafting of legislation.