Direct Request (CEACR) - adopted 2010, published 100th ILC session (2011)

Articles 1(1) and 2(1) of the Convention. 1. Freedom of career military personnel to leave their service. For a number of years, the Committee has been referring to section 141 of Act No. 232 of 1959, according to which the military officers’ service may not terminate until the resignation is accepted. The Committee previously noted that, under the above provision, the application to resign may be either accepted or refused. It also noted that section 141 does not establish the criteria to be used to decide whether a resignation request will be accepted.

The Committee previously recalled, referring to paragraphs 46, 96 and 97 of its General Survey of 2007 on the eradication of forced labour, that, under the Convention, career members of the armed forces who have voluntarily engaged in the armed forces, should not be deprived of the right to leave the service in peacetime within a reasonable period, either at specified intervals, or with previous notice. It therefore requested the Government to indicate the measures taken or envisaged to ensure compliance with the Convention.

The Committee notes that the Government’s report contains no information on this point. The Committee hopes that the Government will indicate, in its next report, the criteria applied in accepting or rejecting a resignation request made in accordance with section 141 referred to above, as well as the measures taken or envisaged to ensure compliance with the Convention on this point.

2. Freedom of public servants to leave their service. In its previous comments, the Committee noted section 99 of Act No. 48 of 1978 on the public services and section 97 of Act No. 47 of 1978 concerning civil servants in public administration, which govern the resignation of public sector employees and public servants. It noted that the decision to accept or reject the resignation request is taken within 30 days of its submission. If the decision is not notified within that period, the resignation is implicitly accepted, unless the request for resignation contains a condition or is coupled with a restriction, in which case a decision containing a reply must be taken. Under these provisions, a request for resignation can be accepted or refused.

The Committee notes the detailed explanations contained in the Government’s report, in particular the explanation of the cases in which the request for resignation contains a condition or is coupled with a restriction, as well as the explanation concerning the application of section 98 of Act No. 47 of 1978 and section 100 of Act No. 48 of 1978, in relation to the resignation of a public servant who is absent from his or her post without permission and without justification for more than 30 consecutive days per year. According to the Government, Act No. 48 of 1978 has been applied to a very limited number of cases since the enactment of Act No. 203 of 1991 concerning the public sector. Furthermore, the Government indicates in its report that a draft Act incorporating the right of public servants to resign without any condition and repealing the Act of 1978 is in the process of being adopted.

The Committee hopes that the necessary measures will be taken in the near future to bring the legislation into conformity with the Convention. Meanwhile, the Committee once again requests the Government to provide information on the application of sections 97 and 99 in practice, including the number of resignations refused and the reasons for their refusal. It also requests the Government to provide a copy of the Act mentioned by the Government in its report, as soon as it is adopted.

Article 25. Penal sanctions for the illegal exaction of forced or compulsory labour. For several years, the Committee has been drawing the Government’s attention to the general scope of the provisions of section 375 of the Penal Code, under which the use of violence, brutality, terror, threats or illegal practices is punishable with penalties of imprisonment where they interfere with the right of any person to work or with the right to employ or refrain from employing any person whatsoever. The Committee noted the Government’s repeated statement in its reports that section 375, though general in scope, is also applicable to cases involving the illegal exaction of forced labour. It requested the Government to provide information on its application in practice, in order to verify the dissuasive nature of the penalties which could be imposed on any person exacting forced labour. The Government indicates in its report that no legal proceedings have been instituted in connection with the illegal exaction of forced or compulsory labour. Noting this information, the Committee reiterates its hope that the Government’s next report will contain information on the application of section 375 of the Penal Code in practice, as soon as such information is available, so as to enable the Committee to ascertain that the penalties imposed for the illegal exaction of forced labour are really adequate and are strictly enforced in accordance with Article 25 of the Convention.

Trafficking in persons. The Committee notes with interest the adoption of Act No. 64/2010 punishing the trafficking in persons. It also notes that an Anti-Trafficking national action plan is in the process of being adopted. The Committee requests the Government to provide information on any criminal proceedings initiated under this Act, indicating the penalties imposed on perpetrators. Please also provide information on the measures taken or envisaged, in the context of the national action plan, to prevent, suppress and punish human trafficking.