Demande directe (CEACR) - adoptée 2002, publiée 91ème session CIT (2003)

The Committee notes that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

The Committee requests the Government to confirm the entry into force of the amendments of the Labour Code approved by Congress on 11 September 2001.

With regard to labour legislation, the Committee requests the Government to provide clarification on the validity and scope of certain provisions. The Committee refers specifically to the Administrative Statute (Act No. 18834), particularly in regard to section 78, and the Legislative Decree on trade union associations (No. 2757). Furthermore, the Committee requests the Government to furnish information on any other legislation applicable on this subject.

  Article 3 of the Convention

1. The right to elect representatives in full freedom. The Committee observes that section 23 of the Political Constitution provides that the holding of trade union office is incompatible with active membership in a political party and that the law shall lay down sanctions for those officials who participate in party political activities. In this respect, the Committee recalls that the provisions which prohibit the exercise of trade union office to certain persons because of their opinions or their political affiliation are not compatible with the right of organizations to elect their representatives freely. These are, essentially, provisions concerning eligibility for trade union office on political grounds which relate to the activities of the specific party or political movement (see General Survey on freedom of association and collective bargaining, 1994, paragraph 119). The Committee deems that section 23 may lay down obstacles in such a way that certain persons are deprived of the right to be elected to trade union office solely because of their political beliefs or affiliation and that it should be the trade unions themselves which regulate such questions in their statutes. Consequently, the Committee requests the Government to take measures to amend this constitutional provision so as to bring it into conformity with the provisions of the Convention.

Section 18 of Act No. 19.296 on civil servants’ associations lays down that a candidate for union leadership must not have been convicted of a serious offence (pena aflictiva). The Committee considers that these terms are too broad and that conviction for an act the nature of which is not such as to call into question the integrity of the person concerned and is not such as to be prejudicial to the performance of trade union duties should not constitute grounds for disqualification from trade union office (see General Survey, paragraph 120). The Committee requests the Government to clarify the extension of the concept of "pena aflictiva" in practice and to what extent it affects workers in standing as candidates for trade union elections.

2. The right to organize their administration and activities and to formulate their programmes. The Committee observes that section 218 of the Labour Code lays down that labour inspectors, public notaries, civil registry officials and officials of the state administration designated as such by the Directorate of Labour shall be officials authorized to authenticate documents. Public notaries shall be present at constituent assemblies of trade union organizations, elections of their officials, votes of censure on officials, and at assemblies convened to decide on amendment of their statute, inter alia. The Committee considers that this is contrary to the right of trade union organizations to organize freely their administration and activities and therefore requests the Government to take the necessary measures, in conformity with Article 3 of the Convention, to ensure that the public authorities refrain from interfering in meetings of trade union organizations.

The Committee also notes sections 370 and 371 of the Labour Code which refer to the right to strike only when collective negotiation procedures have broken down and only at enterprise level. In this respect, the Committee considers that organizations responsible for defending workers’ socio-economic and occupational interests should, in principle, be able to use strike action to support their position in the search for solutions to problems posed by major social and economic policy trends which have a direct impact on their members and on workers in general, in particular as regards employment, social protection and the standard of living (see General Survey, paragraph 165). Furthermore, workers should be able to conduct sympathy strikes, provided the initial strike they are supporting is itself lawful (see General Survey, paragraph 168). The Committee therefore requests that the Government indicate whether it is permissible to carry out actions beyond those envisaged in the framework of collective disputes at the level of the enterprise, such as strikes at national or inter-enterprise level for socio-economic or solidarity reasons, without sanctions being incurred by those participating. Furthermore, the Committee would be grateful to know whether federations and confederations may conduct strikes without being sanctioned for them.

The Committee notes that sections 372 and 373 provide that voting to decide on strike action shall be personal, secret and in the presence of a public notary and that all workers in the undertaking involved in the bargaining may take part. The employer shall inform all workers concerned of the final offer and shall supply a copy of the offer to the Labour Inspectorate. In the ballot, workers shall vote in favour of the strike or in favour of accepting the employer’s offer by means of pre-printed voting slips. The decision to strike shall be taken by an absolute majority of workers of the particular undertaking involved in the negotiations. If this proportion is not reached, it will be understood that the workers accept the employer’s final offer. In this regard, the Committee recalls that the legislative provisions which require a vote by workers before a strike can be held must ensure that account is taken only of the votes cast, and that the required quorum and majority are fixed at a reasonable level (see General Survey, paragraph 170). Furthermore, the Committee considers that acceptance of the employer’s proposal by the workers cannot be implied, as provided in section 373, by the lack of a quorum in voting to take strike action. In fact, the Committee considers that such acceptance must be made expressly by workers or by the representatives involved in the negotiations. The Committee requests that the Government take measures to amend these provisions by eliminating the presumption of acceptance of the strike in the event of lack of a quorum and by ensuring that account is taken only of the votes cast and that the required quorum and majority are fixed at a reasonable level.

The Committee notes that section 374 lays down that once a decision has been taken to strike, this must be carried out within three days otherwise it will be understood that the workers of the undertaking concerned have refrained from striking and, consequently, have accepted the employer’s final offer. On the same lines as the previous point, the Committee considers that the fact that strike action has not been taken within three days should not signify acceptance of the employer’s proposal by the workers. The proposal must be accepted expressly by the workers or their representatives. In addition, the workers must not lose their right to strike because they have not taken such action within three days of declaring it. The Committee requests the Government to take measures to repeal this section which places unnecessary restrictions on the right to strike and the right of trade unions to organize their activities.

The Committee notes that section 379 provides that at any time the group of workers involved in the negotiation can be called to vote by not less that 20 per cent of them for the purpose of deciding on censure of the negotiating committee, which must be decided by the absolute majority, in which case a new committee is elected at once. The Committee considers that this section may give rise to acts of interference in the right of trade union organizations to organize their activities and that these questions should be dealt with solely by trade union statutes. The Committee requests that the Government indicate the measures taken or envisaged to repeal this section.

The Committee notes that section 381 currently in force prohibits in a general way the replacement of strikers. Nevertheless, it observes that the possibility of replacing them remains, subject to certain conditions. Section 381 requires, in addition to the already existing conditions, provision for payment of a premium for strike replacements which makes recruitment of new workers more expensive for the employer. Nevertheless, the Committee recalls that replacement of strikers seriously impairs the right to strike and affects the free exercise of trade union rights (see General Survey, paragraph 175). The Committee requests that the Government amend its legislation to ensure that undertakings cannot recruit new workers to replace their own employees who are on legal strike.

The Committee notes that section 384 provides that striking is forbidden for workers of undertakings which supply public utility services or those the interruption of which would seriously endanger the health, public supply, the economy of the country or national security. In these cases, section 384(3) provides that if agreement is not reached between the parties during the collective bargaining process, compulsory arbitration will take place. In this respect, the Committee recalls that legislation may prohibit strike action and impose compulsory arbitration in the following cases: first, in undertakings or institutions which provide essential services, in the strict sense of the term, namely those the interruption of which would endanger the life, personal safety or health of the whole or part of the population; and secondly, in regard to public servants exercising authority in the name of the State (see General Survey, op. cit., paragraphs 158-159). The Committee observes in this regard that current legislation is excessively broad since the concept of public utility and damage to the country’s economy go beyond the concept of essential service. Nevertheless, the Committee considers that in the case of non-essential services, for the purpose of avoiding damages which are irreversible or out of all proportion to the occupational interests of the parties to the dispute, as well as damages to third parties, namely the users or the consumers who suffer the economic effect of the collective dispute, the authorities could establish a system of minimum service in other public services rather than imposing an outright ban on strikes, which should be limited to essential services in the strict sense of the term (see General Survey, paragraph 160).

The Committee also notes that section 385 provides that where there is a strike which by its nature, timing or duration causes a serious risk to the health, to the supply of goods and services to the population, to the economy of the country or to national security, the President of the Republic can order the resumption of work. In this regard, the Committee considers that it should be the judicial authorities, at the request of the administrative authorities, which order resumption of work only in cases of acute national crisis or where the interruption of services would endanger the life, personal safety or health of the whole or part of the population, providing in such cases that workers enjoy adequate compensatory guarantees, for example, conciliation and mediation procedures leading, in the event of deadlock, to arbitration machinery seen to be reliable by the parties concerned (see General Survey, paragraph 164). Finally, the Committee notes that section 254 of the Penal Code lays down penal sanctions in the event of interruption of public services or public utilities or abandonment of post by public employees. In this respect, the Committee recalls that the sanctions for strike action should be possible only where the prohibitions in question are in conformity with the principles of freedom of association (see General Survey, paragraph 177). The Committee therefore requests the Government to take measures so that legislation will allow the prohibition or restriction of the right to strike only in case of essential services or public servants exercising authority in the name of the State or in the event of acute national crisis. The Committee also requests the Government to amend section 385 so that it is the judicial authorities which determine resumption of work and that appropriate compensatory guarantees are provided in such cases. Finally, the Committee requests the Government to take measures to amend section 254 of the Penal Code in regard to sanctions on the exercise of the right to strike which should be restricted to essential services, to public servants exercising authority in the name of the State and to cases of acute national crises, in accordance with the abovementioned principle.

The Committee notes that section 48 of Act No. 19296 grants broad powers to the Directorate of Labour in supervision of the books and financial and property transactions of associations. In this regard, the Committee recalls that such supervision should be limited to the obligation of submitting periodic financial reports or if there are serious grounds for believing that the actions of an organization are contrary to its rules or the law (see General Survey, paragraph 125). The Committee requests the Government to modify this section in order to restrict the powers of the Directorate of Labour, in conformity with the provisions of Article 3 of the Convention.