Observación (CEACR) - Adopción: 2008, Publicación: 98ª reunión CIT (2009)

The Committee notes the comments of 29 August 2008 by the International Trade Union Confederation (ITUC) referring to: (1) serious acts of violence against, and the arbitrary arrests of trade unionists; (2) the difficulties in organizing and joining unions due to collective protection contracts and exclusion clauses in the electronics industry; and (3) the denial of the right to organize to workers recruited under service provision contracts and other types of precarious contract. The Committee requests the Government to provide its observations on these matters.

Article 2 of the Convention. Trade union monopoly in government agencies imposed by the Federal Act on State Employees and by an Act regulating the Constitution. The Committee points out that it has been commenting for many years on the following provisions:

(i)    the prohibition of the coexistence of two or more unions in the same state agency (sections 68, 71, 72 and 73 of the Federal Act on State Employees);

(ii)    the ban on trade unionists leaving the union of which they have become members (an exclusion clause under which trade unionists who leave the union lose their jobs) (section 69 of the Federal Act on State Employees);

(iii)   the ban on unions of public servants joining trade union organizations of workers or rural workers (section 79 of the Federal Act on State Employees);

(iv)   the extension of the restrictions applying to trade unions in general to the Single Federation of Unions of State Employees (section 84 of the Federal Act on State Employees); and

(v)   the imposition by law of the trade union monopoly of the National Federation of Banking Unions (section 23 of the Act to regulate article 123(XIIIbis)(B), of the Constitution).

The Committee notes that in its report the Government: (1) reiterates, in response to (i) above, that the right of state employees to organize freely is guaranteed by article 123(X)(B), of the Constitution which lays down the right of workers to associate in order to defend their common interests and use to the right to strike when the rights laid down in this provision are violated generally and systematically; (2) again reiterates, in response to (ii) above, that pursuant to jurisprudential ruling No. 43/1999 issued by the Supreme Court of Justice, the Federal Conciliation and Arbitration Tribunal upheld the resignations of workers from membership of various unions and the applications for membership of others; and (3) states that three legislative proposals have recently been submitted on freedom of association (the first consists of a bill to amend and supplement various provisions of the Political Constitution, the Federal Labour Act and the Federal Act on State Employees, which gives constitutional rank to the election of trade union executive committees; a second amendment, inter alia, of sections 68, 69, 71, 72, 78 and 79 of the Federal Act on State Employees; and a third reform supplementing or repealing several provisions of the Federal Labour Act and the Federal Act on State Employees and promoting trade union pluralism and abolition of the trade union exclusion clause).

At a general level, the Committee wishes to emphasize that any system of trade union unity or monopoly imposed directly or indirectly by law is at odds with the principle of full freedom for workers and employers to establish organizations laid down in Article 2 of the Convention. It points out that in drafting the Convention, the intent of the International Labour Conference was not to impose trade union pluralism of a compulsory nature but to ensure at least the possibility of establishing various organizations. There is thus a fundamental difference between trade union monopoly which is established and maintained by law and a single organization which is the result of a decision taken freely by the workers or their trade unions and not the implementation of a law adopted for the purpose. As the Committee has already pointed out, it is not necessarily incompatible with the Convention for legislation to establish a distinction between the most representative trade union organization and other trade union organizations, provided that this distinction amounts to no more than the recognition of certain rights to the most representative trade union (particularly with regard to representation for the purposes of collective bargaining or consultation by governments). But to allow such a distinction on no account implies that the existence of other trade unions which some of the workers wish to join may be prohibited. The Committee notes with interest the various parliamentary initiatives to harmonize the legislation with the Convention.

In these circumstances, the Committee requests the Government to take the necessary steps to amend sections 68, 69, 71, 72, 73, 79 and 84 of the Federal Act on State Employees and section 23 of the Act to regulate article 123(XIIIbis)(B) of the Constitution so as to bring them fully into line with the Convention and the abovementioned jurisprudential ruling. The Committee also asks the Government to provide information on the progress of the abovementioned legislative proposals in parliament and expresses the firm hope that any amendment of the legislation will take account of the comments it has been making for years.

Article 3. Ban on re-election in trade unions (section 75 of the Federal Act on State Employees). The Committee notes that the Government again states that the Federal Conciliation and Arbitration Tribunal applies ruling no. CXXVII/2000 of the Supreme Court of Justice establishing that section 75 of the Federal Act on State Employees which prohibits the re-election of trade union leaders is in breach of freedom of association laid down in article 123 of the Constitution and that the Court recognizes re-election where it is allowed by the statutes of the trade union. The Committee accordingly requests the Government to amend section 75 of the Federal Act on State Employees to align it with the case law of the Supreme Court of Justice and bring it into conformity with the Convention and current practice.

Ban on foreign nationals being members of trade union executive bodies (section 372(II) of the Federal Labour Act). The Committee recalls that in an earlier observation it noted that a set of draft reforms to the Federal Labour Act had been prepared and submitted to parliament as a Bill on 12 December 2002. The Committee notes that the Government reports that the Bill was referred on 13 December 2007 to the Review Committee for study. The Committee expresses the hope that the amendments to the Federal Labour Act, including the amendment of section 372(II) will be implemented in the very near future and requests the Government to provide information on the matter in its next report.

Limited right to strike of public officials who do not exercise authority in the name of State. The Committee recalls that for many years it has been commenting on the following issues:

(i)    State employees – including workers in the banking sector – have the right to strike only if there is general and systematic violation of their rights (section 94, title 4, of the Federal Act on State Employees, and section 5 of the Act to regulate article 123(XIIIbis)(B) of the Constitution). The Committee notes that with regard to the banking sector, the Government states that the Act to Regulate the Banking and Loans Service (to which the Committee has not so far referred) has been repealed by the Credit Institutions Act. It is the Committee’s view that State employees – including employees in the banking sector – who do not exercise authority in the name of the State should be able to exercise the right to strike where, even though there is no general and systematic violation of rights, the situation is nonetheless serious. In these circumstances, the Committee requests the Government to take steps to this end and to provide information on any amendments envisaged to the legislation.

        The Committee likewise observes that section 121 of the Credit Institutions Act, referred to in the previous paragraph, establishes that the “National Banking Commission shall ensure that … during the strike as many offices as are indispensible shall remain open and as many workers as are strictly necessary to perform the functions shall continue to work”. The Committee observes in this connection that the National Banking Commission is not tripartite. It reminds the Government that workers’ organizations should be able to take part, should they so wish, in determining the minimum service to be maintained in the event of a strike, along with employers and the public authorities (see General Survey on freedom of association and collective bargaining, 1994, paragraph 161). The Committee requests the Government to take the necessary steps to this end and to indicate any developments in this regard.

(ii)    The Committee observes that section 99(II) of the Federal Act on State Employees lays down the requirement that in order to call a strike, two-thirds of the workers in the public body concerned must be in favour. The Committee notes that the Government states once again that the right to strike of public servants is not expressly established in the Convention, that the Committee has acknowledged that there may be a general ban on strikes in exceptional circumstances and that strikes may be regulated by provisions governing procedures and arrangements for carrying out strikes, and that the Federal Act on State Employees is accordingly in line with the provisions of the Convention. As regards workers who do not exercise authority in the name of the State, the Committee considers that the ballot method, the quorum and the majority required should not be such that exercise of the right to strike becomes very difficult, or even impossible in practice (see General Survey, op. cit., paragraph 170). In these circumstances, the Committee requests the Government to take the necessary measures to amend section 99(II) accordingly and to keep it informed on this matter.

Requisitioning. In its previous observation the Committee noted that several laws on the public service (Act to Regulate Railways, Act on the National Vehicle Register, Act on General Channels of Communication, and the Rules governing the Ministry of Communications and Transport) make provision for the requisitioning of staff where the national economy could be affected. The Committee notes that according to the Government, the Act on the National Vehicle Register was repealed by the Act on the Public Register of Vehicles of 1 September 2004 and that the Rules governing the Federal Telecommunications Commission have been replaced by new rules which took effect on 5 January 2006. The Committee observes that other laws and regulations not mentioned by the Government are still in force. It reminds the Government that the forced mobilization of workers on strike would be justified only for the purpose of ensuring the operation of essential services in the strict sense of the term (see General Survey, op. cit., paragraph 163). The Committee accordingly asks the Government once again to take steps to amend the provisions that do not refer to essential services in the strict sense of the term (such as the Act to Regulate Railways, the Act on General Channels of Communication) and the Rules governing the Ministry of Communications and Transport and to provide information in its next report on all measures taken to this end.