Demande directe (CEACR) - adoptée 1993, publiée 80ème session CIT (1993)

With reference to its previous direct request, the Committee notes the Government's assurances in its latest report that the Committee's comments will be taken into account in the final draft of the Labour Code. It also notes the preliminary draft of the Labour Code of October 1991 and wishes to draw the Government's attention to the following points.

Article 10 of the Convention. Section 9 of the above draft provides for the introduction of a foreign workers' permit which will only be granted to workers from other African States if there is reciprocity between the State concerned and Burkina Faso. In this connection, the Committee refers to paragraph 31 of its General Survey of 1980 on Migrant Workers in which it indicates that a migrant worker who lawfully resides and works in the country does not have to be the subject of a State that has ratified the Convention or that guarantees identical treatment to the subjects of the country of immigration or employment in order to benefit from the protection provided for in the Convention.

Similarly, section 161 of the draft, which reproduces the provisions of section 6 of the present Labour Code, provides that "members responsible for the management and administration of a trade union must be nationals of Burkina Faso or of a State that has concluded a residence agreement with Burkina Faso, which establishes reciprocity in respect of trade union rights". The Committee refers to the comments it has been making since 1981 to the effect that section 6 of the Labour Code is not consistent with Article 10 of the Convention which lays down equality of treatment in respect of trade union rights. It hopes that the condition of reciprocity will be omitted from the final draft.

Section 14 of the draft (last paragraph) states that "the visa on a work contract to foreign workers other than Africans shall be subject to the payment of a fee; the amount and mode of payment of such fee shall be determined by order of the minister responsible for Labour". This provision introduces a distinction which discriminates between migrant workers and is therefore not compatible with the principle of equality of treatment provided for in Article 10.

The Committee notes that the draft contains no provision to give effect to Article 9, paragraph 3, which stipulates that in case of expulsion of the worker or his family, the cost shall not be borne by them.

The Committee notes with interest that the project contains no provision similar to section 32, subsection 2, of the Labour Code which establishes a longer trial period for foreign workers and on which the Committee has commented previously in connection with Articles 10 and 12(d) of the Convention.

Furthermore, the Committee notes that the Government intends to amend Decree No. 74/350/PRES/FPT of 14 September 1974 to bring it into line with Articles 2, paragraph 2, and 7 of the Convention, as well as sections 4, 5 and 6 of Order No. 98/TFP/PMO/FPR of 15 February 1967 in order to give effect to Articles 10, 12(d) and 14(a) of the Convention.

The Committee hopes that the drafts will be amended and adopted in order to bring the legislation into conformity with the Convention in the very near future. It asks the Government to report on any progress made in this respect and to provide a copy of the texts governing the residence of foreigners.