Observación (CEACR) - Adopción: 1989, Publicación: 76ª reunión CIT (1989)

The Committee notes the Government's report.

For several years, the Committee has been noting a number of discrepancies between the legislation and the Convention, concerning the following points:

Article 2 of the Convention

- The exclusion of public servants, employees and manual workers employed in the State administration and certain agricultural workers from the scope of the Labour Code (section 3).

- Prior authorisation for the establishment of a trade union (section 154 of the Labour Code; section 57 of the Regulations respecting the model statutes of the general trade union of manual and non-manual employees).

- Single trade union structure (sections 129, 138 and 139 of the Labour Code and sections 5(h), 41, 42, 43 and 47(a) of the Regulations).

- The high number of workers required to establish trade union bodies: 50 for a trade union, 50 for a trade union committee and 100 for a general trade union (sections 21, 137, 138 and 139 of the Labour Code and section 55 of the Regulations).

Article 3 of the Convention

- Interference by the public authorities in: (a) the financial administration of trade unions (sections 132(2) and (4) and 133(13) and (14) of the Labour Code); (b) trade union activities (section 145(2) of the Labour Code and section 34 of the Regulations); (c) the formulation of their constitutions and rules (section 150 of the Labour Code and section 62 of the Regulations).

- The prohibition on political activities (section 132 of the Labour Code) and restrictions on the activities of trade unions to support their claims (section 16 of Ministerial Order No. 42 of 1975 concerning the procedures for the settlement of industrial disputes).

Article 4 of the Convention

- The dissolution of a trade union by administrative authority (section 157 of the Labour Code).

The right to organise of public servants and certain agricultural workers

With regard to public servants employed in the administration of the State who are excluded from the scope of the Labour Code, the Committee notes with interest that Act No. 49 of 1977 concerning the terms and conditions of employment of state employees has been amended by Act No. 1 of 1988 respecting the public service and that trade union organisations exist in all provinces. In this connection, the Committee notes that trade unions have been established in various public establishments.

The Committee recalls that the Convention applies to all workers, without distinction whatsoever, with the exception of the armed forces and the police (Article 9 of the Convention) and requests the Government to indicate whether the right to organise is recognised for all public servants, particularly those engaged in the administration of the State and the staff of teaching establishments. It also requests the Government to continue supplying information on the development of the unionisation process by indicating, in particular, the number of workers and sectors covered by this process, and it requests it to supply the text of Act No. 1 of 1988.

With regard to the agricultural workers who are excluded from the scope of the Labour Code, the Committee notes that, according to the Government, they are organised into associations with the role of supplying their members with the assistance that they need, while at the same time seeking to further the interests of the national economy, in accordance with Act No. 11 of 1963 respecting associations.

The Committee requests the Government to indicate the legislative provisions which guarantee agricultural workers the right to organise and requests it to supply the text of Act No. 11 of 1963 and the text of the by-laws of the agricultural workers' associations mentioned by the Government with its next report.

Prior authorisation for the establishment of a trade union

For several years the Committee has been noting that the establishment of a trade union is subject to obtaining authorisation from the competent authorities, whose role is, among other things, to ascertain the allegiances of the persons submitting the application and make sure that they have not been accused of jeopardising the security of State or sentenced for dishonourable acts, in accordance with section 154 of the Labour Code.

The Committee also notes that section 57 of the Regulations is more restrictive than the Labour Code, since the examination of the application deals with whether the applicant has been sentenced for a crime or a dishonourable offence.

The Committee requests the Government to indicate under which provisions of the Labour Code and the Regulations the authorities make their decision. It also requests the Government to indicate the offences covered by section 57 of the Regulations.

The unitary structure of the trade union organisation

In its previous comments, the Committee noted that the trade union organisation set up by the legislation resulted in a single trade union structure by providing for: the existence of only one trade union committee per occupation and per enterprise and for only one branch of a general union per occupation and per town, gathered together in one federation (sections 129, 138, 139 and 158 of the Labour Code and sections 41 and 43 of the Regulations); the establishment of only one federation in the Republic (section 5(h) of the Regulations); and the supervision of base-level trade unions by higher trade union bodies (sections 42 and 47(a) of the Regulations). It also noted that authorisation for the creation of a trade union committee was only given if there were at least 50 workers in the enterprise or in the same occupation and that this figure was raised to 100 for the establishment of a trade union (sections 2, 137 and 138 of the Labour Code and section 55 of the Regulations).

While it is not for the Committee to favour either trade union unity or trade union pluralism, the principle set forth in Article 2 of the Convention, under which all workers shall have the right to establish and join organisations of their own choosing, implies that trade union pluralism should be possible. In the Committee's opinion, by only permitting the establishment of one trade union under the above conditions, the legislation does not observe this principle.

The Committee therefore requests the Government to take measures in order to guarantee workers the right, should they so wish, to establish trade unions outside the existing trade union structure.

Interference by the public authorities

For several years, the Committee has been noting that the legislation empowers the public authorities to intervene in the activities of trade unions, particularly by making a number of financial operations subject to prior authorisation by the Minister (section 132(2), (4) and (6) of the Labour Code), by imposing the allocation of trade unions' funds for certain items of expenditure (section 133(13) and (14) of the Labour Code), by providing for the supervision of the constituent assemblies of trade unions by a representative of the labour administration (section 145(2) of the Labour Code and section 34 of the Regulations) and by empowering the labour administration to amend at any time the rules of a trade union (section 150 of the Labour Code and section 62 of the Regulations).

The Committee points out that under the terms of Article 3 of the Convention, workers' organisations have the right to organise their administration, elect their representatives in full freedom and draw up their constitutions and rules without the public authorities interfering to restrict this right or impede the lawful exercise thereof.

The Committee therefore requests the Government to amend the above provisions in order to bring the legislation into conformity with the Convention in this respect.

Political activities and restrictions on trade union action to support their claims

In its previous comments, the Committee noted that trade unions were not authorised to undertake political activities (section 132 of the Labour Code) and that by virtue of section 16 of Ministerial Order No. 42 of 1975, any action to support a claim could be stopped if, in the Minister's opinion the dispute was becoming important.

In its report, the Government emphasises that the workers and their trade unions participate in the various political activities of the country on the same basis as the rest of the population. It also indicates that Order No. 42 of 1975 has been amended by Ministerial Order No. 4 of 1986 respecting the procedural rules before arbitration committees, in such a way that these orders, read in conjunction with the Labour Code, guarantee all the rights and obligations of the social partners.

While noting this information, the Committee points out that the right of trade union organisations to organise their activities and formulate their programmes implies that these same organisations can turn their attention to problems of general interest, and therefore of a political nature in the widest sense of the term, and publicly demonstrate their opinion concerning economic and social policy with the purpose of defending the interests of their members. In this context the Committee also points out that the right to call a strike is one of the essential means which ought to be available to these organisations to defend the interests of their members (Article 10 of the Convention), and that the official disputes settlements procedure must not be such as to limit the exercise of the right to strike.

The Committee therefore requests the Government to supply information on the rights and duties of workers' organisations in relation to the right to strike. It also requests the Government to supply a copy of Ministerial Order No. 4 of 1986.

Dissolution by administrative authority

For several years, the Committee has been noting that section 157 of the Labour Code empowers the Council of Ministers to dissolve a trade union, contrary to the terms of Article 4 of the Convention.

The Committee points out that the dissolution of a trade union is an extremely serious step which must therefore be accompanied by the appropriate legal protection. Furthermore, in accordance with the principles set forth in Article 4 under which workers' organisations cannot be dissolved by administrative authority, it should be possible to appeal to the judicial authorities before a decision taken by the administrative authority takes effect and the judicial authorities should also be competent to examine the basis of the case and study the grounds for the dissolution or suspension of an organisation.

The Committee therefore requests the Government to take the necessary steps to give effect to the Convention on this point.

The Committee notes that the Government is currently undertaking the amendment of the Labour Code in order to bring it into conformity with international conventions and adapt it to the country's economic and social development.

The Committee trusts that the Government will take account of its comments and requests it to indicate in its next report the measures that have been taken to bring the legislation into conformity with the Convention on these various points.