Observación (CEACR) - Adopción: 2009, Publicación: 99ª reunión CIT (2010)

The Committee notes the comments of the International Trade Union Confederation (ITUC), dated 26 August 2009, which refer to constant violations of social dialogue and the dismissal of the Secretary General of the Association of Teachers during the general strike called in January 2008. The Committee requests the Government to send its comments on this matter.

Additionally, the Committee notes the adoption of Act No. 009.004 of 29 January 2009 establishing the Labour Code.

Article 2 of the Convention. Right of workers and employers, without distinction whatsoever, to establish and join organizations without previous authorization. The Committee notes that section 17 of the new Labour Code does not limit the right to join organizations on the basis of nationality, but it does, however, draw a distinction based on the criteria of legal residence (paragraph 1) accompanied by a condition of reciprocity (paragraph 2). It recalls that, under Article 2 of the Convention, workers, without distinction whatsoever, shall have the right to join organizations of their own choosing, with the sole exception of members of the armed forces and police. Consequently, the Committee requests the Government to take the necessary measures to amend section 17 of the Labour Code so as to guarantee all foreigners the right to join organizations which aim to defend their interests as workers.

The Committee observes that, under section 26 of the Labour Code, parents and guardians may oppose the right to organize of minors under 16 years of age. It recalls that the minimum age for joining a trade union in full freedom should be the same as that established by the Labour Code for admission to employment (14 years according to section 259 of the Code), without the permission of the parents or guardian being necessary. The Committee requests the Government to take the necessary measures to amend section 26 of the Labour Code in that regard.

Article 3. Right of workers to elect their representatives in full freedom and to organize their activities freely. The Committee observes that, under section 25 of the new Code, the following persons may not be trade union officers: (1) persons who have been convicted to a prison sentence, with the exception of convictions for negligence, except in the case of the concomitant offence of leaving the scene of an accident; and (2) persons with a criminal record or persons deprived under a court decision of their right of eligibility in accordance with the law authorizing such deprivation. The Committee holds the view that conviction for an act the nature of which is not such as to call into question the integrity of the person concerned and is not such as to be prejudicial to the performance of trade union duties should not constitute grounds for disqualification from trade union office (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 120). In these circumstances, the Committee requests the Government to take the necessary measures to amend section 25 of the Labour Code taking into account the above principle.

Further to its previous comments, the Committee previously requested the Government to take measures to amend sections 1 and 2 of Act No. 88/009 amending the Labour Code, which provide that any person having lost the status of worker cannot either belong to a trade union or participate in its leadership or administration, and that trade union officers must be members of a trade union, with a view to ensuring that qualified persons, such as persons employed by trade unions or retirees, may hold trade union office. In this regard, the Committee notes with interest that the legislation has been revised on this point by providing, in section 27 of the revised Code, that persons who have ceased to perform their duties or who have left their profession may continue to belong to a trade union.

On numerous occasions, the Committee has also requested the Government to take the necessary measures to amend section 11 of Order No. 81/028 concerning the Government’s powers of requisition in the event of a strike when so required in the general interest so as to restrict powers of requisitioning to cases in which the right to strike may be limited, or even prohibited, that is in the public service in respect of public servants exercising authority in the name of the State, in essential services in the strict sense of the term and in a situation of acute national crisis. Noting with regret that the Government has not provided information on this matter, the Committee requests it to take the necessary measures to amend this provision taking the above principle into account.

Furthermore, the Committee notes that, under section 381 of the Labour Code, during a strike, a compulsory minimum service shall be required for certain enterprises on account of their social utility or their distinctive nature. The list of enterprises concerned and the conditions for implementing the minimum service shall be determined by order of the minister responsible for labour, following consultation with the Permanent National Labour Council. The Committee recalls that the establishment of minimum services in the case of strike action should only be possible in: (1) services the interruption of which would endanger the life, personal safety or health of the whole or part of the population (essential services in the strict sense of the term); (2) services with are not essential in the strict sense of the term but where the extent and duration of a strike might be such as to result in an acute national crisis endangering the normal living conditions of the population; and (3) in public services of fundamental importance. Furthermore, the determination of the minimum services and the minimum number of workers providing them should involve not only the public authorities, but also the relevant employers’ and workers’ organizations. This not only allows a careful exchange of viewpoints on what in a given situation can be considered to be the minimum services that are strictly necessary, but also contributes to guaranteeing that the scope of the minimum service does not result in the strike becoming ineffective in practice because of its limited impact, and to dissipating possible impressions in the trade union organizations that a strike has come to nothing because of overgenerous and unilaterally fixed minimum services. In view of the above, the Committee requests the Government to take the necessary measures to ensure the participation of employers’ and workers’ organizations in the determination of the minimum service and to provide a copy of the list of enterprises concerned.

Articles 5 and 6. Right of organizations to establish federations and confederations of their own choosing. Further to its previous comments concerning section 4 of Act No. 88/009 of 19 May 1988, which provided that occupational trade unions formed into federations and confederations could join together in a single central national organization, the Committee notes with interest the removal of the reference to the single trade union system in the drafting of the new Code. However, the Committee notes that, under section 49(3) of the Code, no central organization may be formed without first having the occupational federations and regional unions defined in paragraphs 1 and 2. In this regard, the Committee recalls that the Convention does not merely recognize the right of organizations to establish bodies operating at the higher level; it gives to the latter the same rights as are accorded to the first-level organizations. Emphasizing the interest in forming groups at the occupational, interoccupational or geographical level, or all three at the same time, the Committee considers that the guarantees afforded to workers’ and employers’ organizations imply that they may group together in full freedom into federations and confederations without intervention from the public authorities (see General Survey, op. cit., paragraphs 189 and 194). The Committee requests the Government to take the necessary measures to amend section 49(3) of the Labour Code to guarantee in full the right of workers’ organizations to establish federations and confederations of their own choosing, and to indicate any progress in this regard.

The Committee is raising other points in a request addressed directly to the Government.