Observation (CEACR) - adoptée 1995, publiée 83ème session CIT (1996)

The Committee notes the Government's report and recalls that, in substance, its previous comments referred to:

- the exclusion from the scope of the new Labour Code, 1993, of public servants, be they from the Central Administration or from Decentralized Units (section 2);

- the requirement of 300 workers as the minimum number to form a trade union (section 292 of the new Code);

- the requirement of being an active worker in the enterprise and an active member of the trade union in order to be eligible for trade union office (sections 298(a) and 293(d) of the new Code, respectively);

- the restriction on the free election of trade union representatives (Decree No. 16769 which contains detailed and meticulous regulation of the trade union electoral process);

- the referral of collective disputes to compulsory arbitration and the dismissal of workers who have stopped work before the conciliation and compulsory arbitration procedures have been exhausted (sections 284, 291, 293, 302 and 308 of the Code of Labour Procedure).

The Commission notes with interest that according to the information provided by the Government, Decree No. 16769 which restricts free election of trade union representatives was declared unconstitutional by the Supreme Court of Justice, and is therefore null and void. The Committee requests the Government to inform it on the adoption of any derogating text.

On the exclusion of public servants from the scope of the new Labour Code of 1993, the Committee duly notes that, according to the information supplied by the Government, the new Act for public servants is before the Parliament and that the Committee's comments on the right to organize of workers in public services have been taken into account. In regard to Act No. 200 which lays down the status of public officials, particularly in regard to sections 31 and 36 (which are contrary to the Convention), the Commission notes with interest the information from the Government that although the Act is still in force, its provisions are contrary to the national Constitution (articles 96 and 98) and that, consequently, they are null and void and without legal force.

The Committee hopes that in preparing the Act for public servants the provisions of the Convention have been taken into account and that the Act will repeal Act No. 200, particularly sections 31 and 36, in order to bring the law into full conformity with the practice and the requirements of the Convention.

Although the Committee has noted with interest that article 97 of the new Constitution stipulates that arbitration is optional, it requests the Government once again to inform it whether sections 284, 291, 293, 302 and 308 of the Code of Labour Procedure (on compulsory arbitration and dismissal of workers who have stopped work during the process) have been repealed, so that effect is given to the voluntary nature of arbitration.

With regard to the requirement that a minimum number of 300 workers is needed to form a trade union (section 292 of the new Code) and the requirement to be an active worker in the enterprise and an active member of the trade union in order to take up trade union office (sections 298(a) and 293(d) of the new Code, respectively), the Committee requests the Government once again to take measures, in consultation with its social partners, to amend legislation for the purpose of reducing the minimum number of workers needed to establish a trade union and to allow workers to elect their representatives in full freedom.

The Committee requests the Government to inform it in its next report of the measures adopted to bring legislation into conformity with the requirements of the Convention and also on the progress in approving the special Act for public servants and to send a copy of the new Act once it is adopted.

The Committee is also sending a request directly to the Government on various points.