Solicitud directa (CEACR) - Adopción: 2007, Publicación: 97ª reunión CIT (2008)

The Committee notes the Government’s report.

Article 2 of the Convention. In its previous direct request, the Committee noted that section 8 of Act No. 1/015 of 29 November 2002, regulating the exercise of the right to organize and the right to strike in the public services requires public service unions to have at least 50 members at the time of their establishment. Section 24 provides that no union may continue to exist unless it demonstrates that it has more than the minimum membership. The Committee considers that this statutory requirement of a minimum of 50 members is excessive. Noting the Government’s indication that it has taken due note of its recommendation, the Committee urges the Government to take the appropriate measures to amend section 8 of Act No. 1/015 so as to lower the minimum membership required to establish a union in order to ensure in practice the rights of public servants to establish and join organizations of their own choosing, in accordance with Article 2 of the Convention.

Article 3. 1. The Committee noted previously that, under section 10 of Act No. 1/015, eligibility for leadership of a public service union is subject to a minimum length of service of three years. The Committee recalled that the autonomy of organizations can be effectively guaranteed only if their members have the right to elect their representatives in full freedom. This freedom means in particular that the public authorities should refrain from any intervention likely to hinder the exercise of this right, in particular regarding the eligibility requirements for union leaders. The issue of length of service as a condition for eligibility should therefore be left to the discretion of the organizations and their members. Noting the Government’s statement that it endorses this recommendation, the Committee requests the Government to take the appropriate measures to abolish the length of service requirement for the eligibility of trade union leaders so that civil servants can elect their representatives in full freedom, in accordance with Article 3 of the Convention.

2. The Committee noted previously that section 7 of Act No. 1/015 provides that, in the event of a leadership conflict in a union, the Minister of the Public Service may refer the matter to the Administrative Chamber of the Supreme Court for settlement. In this respect, the Committee recalled that the settlement of any internal conflict in a union should be left to the discretion of the union members themselves, without any intervention by the public authorities. The Committee recommended that, at the very least, referral to the Administrative Chamber of the Supreme Court should be by the union members themselves. Noting the Government’s indication that it agrees to amend to section 7 of Act No. 1/015 so as to leave the settlement of an internal dispute to a trade union, so as to guarantee in full the right of workers’ organizations to organize their administration and activities in full freedom, the Committee requests the Government to indicate the measures adopted in this respect, in accordance with Article 3 of the Convention.

3. The Committee noted previously that, for a strike by public servants to be legal, it has to fulfil a number of  conditions, including: (1) prior notification must be given specifying the length of the strike, in accordance with section 30; and (2) it must be called by a group of public servants, whether or not they are unionized, after approval by an absolute majority of the personnel in the public service concerned, in accordance with section 31. The Committee recalled that to require workers and their organizations by law to specify the length of the strike limits their right to organize their administration and activities and to formulate their programmes in full freedom. As to the approval of the strike by an absolute majority of the personnel in the public service concerned, the Committee emphasized that the ballot method, the quorum and the majority required should not be such that the exercise of the right to strike becomes very difficult in practice. Noting the Government’s indication that it will amend sections 30 and 31 of Act No. 1/015 in order, on the one hand, to ensure that there is no legal requirement to specify the length of the strike in the strike notice and, on the other, so that approval of the strike simply requires the majority of the votes cast, the Committee urges the Government to take the necessary measures.

4. With regard to section 39, which prohibits sympathy strikes, the Committee recalled previously that a general prohibition of sympathy strikes by public servants who do not exercise authority in the name of the State, and therefore have the right to strike, could lead to abuse.  Noting the Government’s indication of its intention to confine the application of section 39 of Act No. 1/015 to public servants exercising authority in the name of the State, the Committee urges it to take the necessary measures.

5. The Committee noted previously that sections 32 to 35 of the Act deal with collective disputes and the procedures to be followed. During a strike, negotiations have to be continued between the parties or under the direction of a certified mediator chosen by agreement between the parties. In the event of disagreement as to the mediator or of the failure of the mediation, an arbitration board shall be appointed by the Minister of the Public Service at the request of one of the parties. Within four clear days of its appointment, the arbitration board shall issue an award, which has to be notified at once to the parties. Section 35 provides that, in the event of conciliation, the award shall be immediately enforceable. Where conciliation fails, the dispute shall be referred to the Administrative Court by the losing party. The Government transmitted information on the effect of the intervention of the Court and, in particular, on the fact that a decision of the Administrative Court does not take effect if it has been appealed by one of the parties. It adds that in practice, no cases have been brought before the Administrative Court as the Government intended to settle all disputes amicably. While taking note of these indications, the Committee observes that recourse to the Administrative Court appears to result in a system of compulsory arbitration to end a dispute. The Committee recalls that, on the one hand, compulsory arbitration is acceptable only at the request of both parties to the dispute or in cases when a strike can be restricted or prohibited, i.e. in disputes involving public servants exercising authority in the name of the State or in essential services in the strict sense of the term. On the other, the Committee recalls that public servants not exercising authority in the name of the State should enjoy the right to strike and that this right may be restricted or prohibited only in the following two cases: (1) where the public servants are engaged in essential services in the strict sense of the term, that is services the interruption of which would endanger the life, personal safety or health of the whole of part of the population; and (2) in the event of an acute national crisis. Therefore, the Committee requests the Government to indicate if the decision of the Administrative Court or its appeal could put an end to a strike action by the public servants not exercising authority in the name of the State or not employed in essential services. The Committee also requests the Government to amend section 35 of Act No. 1/015 so as to allow recourse to compulsory arbitration only in the abovementioned cases.

Article 5. With regard to section 21 of Act No. 1/015, which provides that central organizations, federations and confederations are regulated by the provisions of Chapter I, which addresses the establishment of first-level organizations, the Committee noted that the effect of section 21 in practice is that first-level organizations can only join higher level organizations of public servants, and not organizations representing other workers. The Committee therefore recalled that, although first-level organizations of public servants may be restricted to this category of workers, such organizations should nonetheless be free to join federations and confederations of their own choosing, including those which also group together organizations from the private sector. Noting the Government’s indication that it will amend section 21 of Act No. 1/015 so as to guarantee the right of trade unions of public servants to establish federations and confederations of their own choosing, including those which also group together organizations from the private sector, in accordance with Article 5 of the Convention, the Committee requests the Government to take the necessary measures.

The Committee trusts that all the changes that the Government indicates that it wishes to make to Act No. 1/015, in accordance with the Committee’s recommendations, will be carried out in the near future and that the Government will be in a position to indicate the progress achieved in this respect in its next report.