Demande directe (CEACR) - adoptée 2001, publiée 90ème session CIT (2002)

The Committee notes the Government’s report.

Articles 1 and 2 of the Convention. The Committee notes that: (1) in accordance with section 4 of Law No. 2/99/M of 9 August 1999, which regulates the right of association, no one can be obliged to be a part of an association by any means whatsoever, or to continue to be a part thereof; (2) section 347 of the Penal Code provides for dissuasive sanctions for public authorities which force or coerce someone to enrol or give up enrolment in an association; and (3) section 45 of Decree-Law No. 24/89/M of 3 April prohibits the dismissal of workers on the grounds of their membership of trade unions or their trade union activities. The Committee requests the Government to indicate: (1) whether, under the terms of section 347 of the above Decree, it is possible for the employer to terminate an employment contract unilaterally, even where such termination is for anti-union purposes; (2) whether in such cases of unilateral termination (which may be assimilated to dismissal), workers have access to rapid and effective recourse which can provide for compensation and possibly reinstatement; and (3) whether there are sufficiently dissuasive sanctions. The Committee also requests the Government to indicate whether the legislation protects workers against other prejudicial measures, such as transfers, demotion, etc., and the penalties and procedures applicable in such cases.

The Committee notes that the legislation does not contain provisions explicitly prohibiting acts of interference, nor guaranteeing adequate protection to workers’ organizations against acts of interference by employers or their organizations by means of dissuasive sanctions and rapid and effective procedures. The Committee therefore requests the Government to take measures to ensure that such protection is afforded by the legislation.

The Committee notes that in accordance with section 3(3) of Decree-Law No. 24/89/M of 3 April 1989, respecting employment relations, the Decree does not apply to domestic employment relations, non-resident workers (for whom there are special regulations) nor workers who provide services in their own homes. In this respect, the Committee recalls that the Convention only permits the exclusion from its guarantees of the armed forces, the police and public servants engaged in the administration of the State, and it requests the Government to take measures to ensure that the legislation affords these guarantees, including collective bargaining, to the categories of workers cited above. The Committee also requests the Government to provide a copy of the legislation applicable to non-resident workers.

Article 4. The Committee notes that section 6 of Decree-Law No. 24/89/M provides that agreements concluded between employers and workers or the respective representatives shall be valid. In this respect, the Committee requests the Government to indicate whether, in cases where a trade union exists in the enterprise or the institution, a group of non-unionized workers can bargain collectively.

The Committee requests the Government to indicate whether there are other legislative provisions, in addition to section 6 of Decree-Law No. 24/89/M, which regulate collective bargaining and to provide information on the sectors of activity in which collective agreements have been concluded, and on their coverage.

Article 6. The Committee notes that section 3(2) of Decree-Law No. 24/89/M provides that it does not apply to the public administration or to enterprises or entities subject to the conditions of service of the public service. In this respect, the Government states that the rights set out in the Convention are not diminished or restricted for public servants. In view of the general nature of this statement, the Committee recalls that, while Article 6 of Convention No. 98 allows public servants engaged in the administration of the State to be excluded from its scope, other categories of workers should enjoy the guarantees afforded by the Convention and therefore be able to negotiate collectively their conditions of employment, including wages (see General Survey on freedom of association and collective bargaining, 1994, paragraph 262). The Committee therefore requests the Government to indicate the provisions which guarantee the right of public servants who are not engaged in the administration of the State to collective bargaining and protection against acts of anti-union discrimination and interference.