Observación (CEACR) - Adopción: 1994, Publicación: 81ª reunión CIT (1994)

The Committee notes the Government's report and the new Labour Code (29 May 1992) as it relates to freedom of association and collective bargaining.

The Committee recalls that its previous comments referred to:

- the insufficient protection provided to workers against acts of anti-union discrimination and acts of interference (sections 678(15) and 679(6) of the former Code);

- the exclusion from the scope of the Labour Code of workers in agricultural enterprises employing no more than ten workers (sections 281 and 307 of the former Code);

- the absence of collective agreements in export processing zones.

The Committee notes with satisfaction that the new Labour Code sets out trade union rights (section 390), increases the level of fines and sanctions as punishment to the authors of anti-union acts and discriminatory practices (sections 720 and 721), and that the provisions of the Labour Code respecting protection against anti-union discrimination and the promotion of collective bargaining for the determination of terms and conditions of employment through collective agreements (sections 103 and 281) are applicable to workers in agro-processing, stock-raising and forestry enterprises, as well as in export processing zones.

With regard to workers in export processing zones, the Committee notes the Government's statement that there are not yet any collective agreements between trade unions and employers, since trade unions are only authorized to negotiate collective agreements when their membership includes an absolute majority of the workers in the enterprise or the workers employed in the branch in question (sections 109 and 110 of the Labour Code).

As regards legislation restricting recognition to an association which has a membership or the support of more than 50 per cent of the persons in a given bargaining unit (absolute majority), it follows that a trade union, even with a majority, that does not cover 50 per cent of the persons in a unit cannot obtain a certificate as a recognized bargaining agent; the Committee has recalled on various occasions that, if under a system of nominating an exclusive bargaining agent there is no union covering more than 50 per cent of the workers, collective bargaining rights should be granted to all the unions in this unit, at least on behalf of their own members (see 1994 General Survey on Freedom of Association and Collective Bargaining, paragraph 241). The Committee therefore considers that this requirement is too high and is liable to render collective bargaining difficult for trade union organizations covering all categories of workers, both at the level of the enterprise and the branch of activity.

The Committee requests the Government, in consultation with the social partners, to take steps to amend the law so that organizations of employers and workers are not impeded in their exercise of collective bargaining in accordance with Article 4 of the Convention and requests the Government to continue to supply information in its next report on any measure which has been taken or is envisaged to encourage and promote, in respect of employers in export processing zones and the organizations of workers, the full development and utilization of machinery for voluntary negotiation with a view to the determination of terms and conditions of employment.