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

The Committee recalls that its previous comments referred to various provisions of the Industrial Relations Act of 1992 and its Regulations, which are in breach of the guarantees provided under the Convention, namely:

(1)  the denial of trade union membership during the probation period (section 12(c) of the Act);

(2)  the requirement of a high number of workers (100) to form trade unions by branch of activity, occupation and for various occupations (section 14);

(3)  the requirement that workers must be active members of the trade union (section 24(b)) and must have been in the service of the enterprise for a minimum of one year (section 24(c)) to become eligible for trade union office (section 24);

(4)  the prohibition of political activities for trade unions (section 11(a));

(5)  the excessive restrictions on the right of workers to call a strike, in particular sections 73(a) and (b), 67 and 83(g) and (j);

(6)  the obligation of trade unions to compile reports which may be requested by the labour authorities (section 10(f));

(7)  the power of the labour authority to cancel the registration of a trade union (section 20 of the Act) and the requirement that the trade union must wait six months after the cause of cancellation has been remedied before reapplying for registration (section 24 of the Regulation);

(8)  the prohibition of federations and confederations of the public services to form part of organizations which represent other categories of workers (section 19 of the Presidential Decree No. 003-82-PCM);

(9)  the power of the labour administration to establish minimum services in cases of disputes, when a strike is declared in essential public services (section 83 of the Act in force).

The Committee notes the information supplied by the Government in its last report, that a draft Act No. 0096 on Industrial Relations of 31 July 2000, had been presented. According to the Government, this draft includes the main observations made by the ILO concerning previous drafts, and covers most of the aspects indicated above, as follows:

(1)  suppression of the requirement to complete a probation period in order to become a member of a trade union organization (section 8);

(2)  reduction of the number of workers from 100 to 50 to form trade unions by branch of activity, occupation and for various occupations (section 7);

(3)  remove the requirements for eligibility for trade union office, indicated in section 24 of the Act in force, thus allowing the statute to determine the form, management and mandate of such office (section 19);

(4)  guarantee the exercise of the freedoms recognized by the Constitution in this connection, namely exercise of political activities (section 12(a));

(5)  remove the obligation of trade unions to compile reports which may be requested by the labour authorities and other governmental authorities (section 13);

(6)  provide that cancellation of the registration of a trade union shall only be possible by legal action (section 27(e)); and

(7)  allow workers the opportunity of recourse to the labour judge (section 78(3)) in cases of disagreement with the employers regarding the number and occupation of workers required to maintain minimum services.

The Committee hopes that this draft will be approved in the near future and requests the Government to indicate in its next report all progress made in this connection.

However, the Committee observes that the new draft does not take into account certain of its previous comments and that it contains provisions which could cause problems regarding the implementation of the Convention, as follows:

-  restrictions to the exercise of the right to strike requiring that the decision be adopted by an absolute majority of the workers (section 73(b)(i)), in particular the obligation that the announcement of a strike shall be communicated to the employer and to the Labour Administration accompanied by a copy of the voting rule with the names and signatures of participating workers (section 73(c)). Nor is the right of workers not to strike covered, since the decision adopted by vote … when all workers are called, whether trade union members or not, and included in the range of the conflict, the decision adopted by absolute majority shall be binding to all (section 73(b)(i)); and

-  the prohibition of federations or confederations of public servants to become members of confederations which also include private sector organizations (see paragraph 193 of the General Survey on freedom of association and collective bargaining, 1994).

The Committee further notes that in order to establish federations and confederations the draft requires an excessively high number of unions (a minimum of five unions from the same branch of economic activity) and of federations (a minimum of ten), respectively (section 10).

The Committee also understands that the draft does not expressly recognize the right to strike of trade union federations and confederations (see General Survey, op. cit., 1994, paragraph 69). It therefore proposes that care should be taken accordingly in this section.

The Committee firmly hopes that draft Act No. 0096 will be adopted as soon as possible, taking account of all the comments it has so far expressed in this connection. It requests the Government to indicate in its next report all progress made in this regard and to supply a copy of the new version of the Act.

Moreover, the Committee is addressing a request directly to the Government.