Observation (CEACR) - adoptée 2000, publiée 89ème session CIT (2001)

The Committee notes that the Government’s report does not contain replies to its previous comments.

The Committee recalls that its earlier comments touched on the following points.

Article 3 of the Convention. The right of organizations to organize their activities and formulate their programmes without any interference from the public authorities.  The Committee had noted that sections 1, 3, 4 and 5 of Legislative Decree No. 90-02 of 6 February 1990 on compulsory arbitration contain provisions which could jeopardize the right of workers’ organizations to organize their activities and formulate their programme of action to defend the economic, social and occupational interests of their members including through recourse to strike, without interference from the public authorities.

With regard to Legislative Decree No. 92-03 of 30 September 1992, the Committee notes that the Government reiterates the reply given in its previous reports, that is, that the said Decree is not directed against the right to strike or the right to organize and that these provisions have never been implemented against workers exercising their right to strike peacefully. The Committee recalls however, that section 1, read in conjunction with sections 3, 4 and 5 of Decree No. 92-03, defines as subversive acts or acts of terrorism, offences directed, in particular, against the stability and normal functioning of institutions, through any action taken with the intention: (1) of obstructing the operation of establishments providing public service; or (2) of impeding traffic or freedom of movement in public places or highways, under penalty of severe sanctions including up to 20 years’ imprisonment. The Committee therefore again requests the Government to take steps through legislation or regulation to ensure that none of these provisions may be applied against workers peacefully exercising their right to strike.

In respect of section 43 of Decree No. 90-02 of 6 February 1990, the Committee had noted that this provision allowed a strike to be prohibited, not only in essential services, the interruption of which would endanger the life, personal safety or health of the population, which the Committee has always considered admissible, but also when the effect of the strike is likely to engender an acute economic crisis. Moreover, article 48 of the Decree empowers the Minister or the competent authority, where the strike persists and after the failure of mediation, to refer, after consultation with the employer and the representatives of the workers, a collective dispute to the arbitration commission. The Committee wishes to recall that compulsory arbitration should only be used at the request of both parties and/or that arbitration to end a strike should only be imposed when strikes occur in essential services in the strict sense of the term, or where the extent and duration of the strike could provoke an acute national crisis. It therefore again urges the Government to amend its legislation along the above indicated lines to bring it fully into conformity with the principles of freedom of association.