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

The Committee notes the information contained in the Government’s report. It notes in particular the Government’s statement that all the points raised in its previous comments will be taken into account during the work of the committees responsible for the formulation of texts to be issued under the Labour Code. Noting that these committees are currently suspended, the Committee expresses the firm hope that the necessary measures will be taken in the very near future to give full effect to the provisions of the Convention. In this respect, it recalls that its previous comments concerned the following matters.

Article 2 of the Convention. Trade union rights of young persons. For several years, the Committee has been emphasizing that section L.11 of the Labour Code (as amended in 1997) provides that young persons over 16 years of age may join trade unions, unless their membership is opposed by their father, mother or guardian, and it recalls in this respect that the Convention does not authorize any distinction based on such reasons (see the General Survey on freedom of association and collective bargaining, 1994, paragraph 64).

Articles 2, 5 and 6 of the Convention. Right of workers to establish organizations of their own choosing without previous authorization. The Committee recalls the need to repeal Act No. 76-28 of 6 April 1976, which confers discretionary powers on the Minister of the Interior with regard to issuing a receipt recognizing the existence of a trade union. Furthermore, the Committee has already emphasized on several occasions that section L.8 of the Labour Code (as amended in 1997) reproduces the substance of the provisions of the Act of 1976 by requiring previous authorization from the Minister of the Interior for the establishment of trade unions, federations and confederations. The Committee once again emphasizes the importance that it attaches to compliance with Articles 2, 5 and 6 of the Convention, which guarantee workers and workers’ organizations the right to establish organizations of their own choosing without previous authorization. It once again requests the Government to repeal as soon as possible the requirement for previous authorization contained in section L.8 of the Labour Code and to inform it of all measures taken to this effect.

Article 3. Requisitioning. The Committee has been emphasizing for several years that section L.276 grants the administrative authorities broad powers to requisition workers in private enterprises and public services and establishments who occupy posts considered essential for the safety of persons and goods, the maintenance of public order, the continuity of public services or the satisfaction of the country’s essential needs. The Committee once again requests the Government to provide a copy of the Decree issued under section L.276 determining the list of essential services so that it can ensure that it is compatible with the provisions of the Convention. It once again recalls that the requisitioning of workers as a means of settling labour disputes can result in abuses. Such action is therefore to be exclusively confined to the maintenance of essential services in particularly serious circumstances. In the view of the Committee, requisitioning can be justified only in services the interruption of which would endanger the life, personal safety or health of the whole or part of the population, or in the event of an acute national crisis.

The Committee further recalls that section L.276 in fine provides that workplaces or the immediate surroundings thereof may not be occupied during a strike, under penalty of the sanctions provided for in sections L.275 and L.279. The Committee has already indicated to the Government that restrictions on workplace occupations should be limited to cases where the action ceases to be peaceful (see the General Survey, op. cit., paragraph 174).

Article 4. Dissolution by administrative authority. The Committee recalls the need to amend the national legislation with a view to protecting trade union organizations against dissolution by administrative authority (Act No. 65-40 of 22 May 1965), in accordance with Article 4 of the Convention. The Committee noted previously that section L.287 of the Labour Code did not explicitly repeal the provisions respecting administrative dissolution contained in the 1965 legislation. The Committee once again reminds the Government that it would be preferable to incorporate in a law or regulations a provision explicitly stating that the measures respecting administrative dissolution contained in Act No. 65-40 on associations do not apply to trade union organizations.

The Committee emphasizes that the Office’s technical assistance is available to the Government, if it so wishes.