Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

The Committee notes the Government’s report, which is basically confined to mentioning the legislative provisions relative to the Convention. The Committee also notes the comments made by the International Trade Union Confederation (ITUC), dated 29 August 2008. The Committee observes with concern that the ITUC refers to serious acts of violence by the police force against workers from the sugar and steel sectors who participated in demonstrations, as well as the arrest of trade unionists. The Committee requests the Government to send its observations on this matter, as well as on the comments made by the International Confederation of Free Trade Unions (ICFTU, now ITUC) in 2005, which referred, among other things, to numerous acts of violence including assassinations of trade unionists.

The Committee recalls that for many years, it has been making comments on the lack of compliance of various legislative provisions with the Convention.

Article 2 of the Convention. The requirement of an excessively high number of workers (300) to establish a branch trade union (section 292 of the Labour Code). The Committee recalls that, although the requirement of a minimum number of members to be able to establish an organization is not in itself incompatible with the Convention, the minimum number should be fixed in a reasonable manner so that the establishment of organizations is not hindered (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 81). In this regard, the Committee considers that the number of 300 workers to establish a branch trade union is too high and constitutes an obstacle for the establishment by workers of organizations of their own choosing. The Committee therefore requests the Government to take the necessary measures to amend the legislation to reduce the requirement of 300 workers to establish a branch trade union to a reasonable number.

The prohibition for workers to join more than one union even if they have more than one part-time employment contract, whether at the level of the enterprise, industry, occupation or trade, or institution (section 293(c) of the Labour Code). The Committee recalls that Article 2 of the Convention establishes the right of workers to join organizations of their own choosing and that, in this respect, workers who have more than one occupation in different enterprises or sectors should be able to join the unions that correspond to each of the categories of work that they perform and to be members, at the same time, if they so wish, of a union at the level of the enterprise and the occupation. The Committee requests the Government to take the necessary measures to amend the legislation as indicated above.

Article 3 of the Convention. Imposition of excessive requirements to be able to hold office in the executive body of a trade union: the need to be an employee in the enterprise, industry, occupation or institution, whether active or on leave (section 298(a) of the Labour Code), to have reached the age of majority and to be an active member of the union (section 293(d) of the Labour Code). The Committee recalls that provisions which require the members of a trade union to belong to the respective occupation and that the officers of the organization be chosen from among its members are contrary to the Convention. Provisions of this type infringe the right of organizations to elect representatives in full freedom by preventing qualified persons, such as full-time union officers, from carrying out union duties or by depriving unions of the benefit of the experience of certain officers when they are unable to provide enough qualified persons from among their own ranks. When national legislation imposes conditions of this kind on all trade union leaders, there is also a real risk of interference by the employer through the dismissal of trade union officers, which deprives them of their trade union office. In order to bring such legislation into conformity with the Convention, it would be desirable to make it more flexible, either by admitting as candidates persons who have previously been employed in the occupation concerned, or by exempting from the occupational requirement a reasonable proportion of the officers of an organization (see General Survey, op. cit., paragraph 117). Under these conditions, the Committee requests the Government to take the necessary measures to amend the legislation (sections 293(d) and 298(a)) in accordance with the principles indicated above.

The requirement that trade unions must comply with all requests for consultations or reports from the labour authorities (sections 290(f) and 304(c) of the Labour Code). The Committee recalls that problems of compatibility with the Convention arise when the law gives the administrative authorities powers to examine the books and other documents of an organization, conduct an investigation and demand information at any time. The Committee considers that such an obligation should be confined to submitting annual financial reports or in cases of denunciations by union members of violations of the law or the union’s rules (see General Survey, op. cit., paragraphs 125 and 126). The Committee therefore requests the Government to amend the legislation in accordance with the principle set out above.

The submission of collective disputes to compulsory arbitration (sections 284–320 of the Code of Labour Procedure). In its previous observation, the Committee noted that, according to the Government, these provisions were tacitly repealed by article 97 of the Constitution of the Republic enacted in 1992, which provides that “the State shall facilitate conciliatory solutions to labour disputes and social dialogue. Arbitration shall be optional.” The Committee therefore requests the Government, in accordance with the provisions of the Constitution and with a view to avoiding any possible ambiguity of interpretation, to take the necessary measures to explicitly repeal
sections 284–320 of the Code of Labour Procedure, which provide for compulsory arbitration in collective disputes.

The requirement that, for a strike to be called, its sole purpose must be directly and exclusively linked to the workers’ occupational interests (sections 358 and 376(a) of the Labour Code). The Committee reminds the Government that trade union organizations, which are responsible for defending the socio-economic and occupational interests of workers, should, in principle, be able to use strike action in support of their positions in the search for solutions to problems posed by major economic and social policy trends which have a direct impact on their members and on workers in general, in particular as regards employment, social protection and standards of living. The Committee requests the Government to take the necessary measures to amend sections 358 and 376 in accordance with the principle recalled above.

Section 362 of the Labour Code which establishes the obligation to ensure a minimum service in the event of a strike in public services that are essential to the community, without the requirement to consult the employers’ and workers’ organizations concerned. The Committee recalls that workers’ organizations should be able, if they so wish, to participate in defining minimum services along with employers and the public authorities, and that any disagreement as to the number and duties of the workers concerned should be settled by an independent body and not unilaterally by the administrative authorities. Under these conditions, the Committee requests the Government to take the necessary measures to guarantee explicitly in the legislation the right of workers’ and employers’ organizations to participate in defining minimum services and, where disagreements arise, as to the number and duties of the workers concerned, they should be settled by an independent body.

In view of the fact that the Committee has been making these comments for many years, without progress being achieved in practice, it strongly encourages the Government to take the necessary measures to bring its legislation into conformity with the Convention without delay. The Committee urges the Government to seek technical assistance from the Office to that end.

[The Government is asked to supply full particulars to the Conference at its 98th Session and to reply in detail to the present comments in 2009.]