Demande directe (CEACR) - adoptée 2003, publiée 92ème session CIT (2004)

The Committee notes the Government’s first report. It also notes the observations forwarded by the International Confederation of Free Trade Unions (ICFTU) and the Free Confederation of Mauritanian Workers (CLTM), and the Government’s reply. Finally, the Committee notes that a new Labour Code is in the process of being adopted. After being approved by the National Labour Council and the Inter-Ministerial Committee, the Labour Code should be adopted during the next parliamentary session. The Committee therefore requests the Government to provide a copy of it.

1. Articles 1 and 2 of the Convention. Protection of workers against acts of anti-union discrimination and protection of workers’ and employers’ organizations against any acts of interference by each other. In its report, the Government indicates that section 26 (Book III) of the Labour Code prohibits acts of anti-union discrimination both at the time of recruitment and during employment. With regard to acts of interference, the Committee notes that this section also prohibits the head of an enterprise or her or his representatives from having recourse to means of exerting pressure either in favour of or against any trade union organization.

In these circumstances, noting that according to the Government any infringement of freedom of association gives rise to penalties for infringements of freedom of labour, the Committee requests the Government to indicate the penalties to which it refers and the acts for which they are applicable, with an indication of the relevant provisions. The Committee trusts that the new Labour Code will maintain the above prohibitions and that they will be combined with sufficiently dissuasive penalties.

Furthermore, the CLTM and the ICFTU, respectively, state that, on the one hand, unionized workers are subject on a daily basis to all kinds of pressure and intimidation and, on the other, trade union leaders hardly benefit from any protection against anti-union discrimination. The ICFTU refers in this respect to the dismissal of four trade union delegates in a public works enterprise following the submission to the management of a list of workers’ claims. The ICFTU also reports that interference by private sector employers in trade union elections is fairly common. The Committee notes that the Government has not replied to the observations made by the two trade union organizations, and it therefore requests it to forward its comments in this respect.

2. Article 4. Promotion of free and voluntary negotiation. The Committee notes that the Government’s report does not provide any information on the application of Article 4 in practice, except for a reference to the general collective agreement of 1974. The Committee notes the CLTM’s indication that the right to collective bargaining is neither respected nor applied and that, for around 40 years, there has been no revision or negotiation of collective agreements. The ICFTU admits that the right to collective bargaining is recognized in law and that collective agreements have been concluded, among others, at the sectoral and national levels, although it adds that this right is subject to excessive restrictions. In its reply to these observations, the Government emphasizes that negotiations are systematically held at the request of a social partner or where the labour situation so requires. Finally, the revision of the general collective agreement of 1974, concluded between the social partners, is dependent on the will of the signatories. Nevertheless, out of a concern to modernize the legal arsenal, the Government is envisaging the revision of this instrument following the adoption of the Labour Code.

Noting that the Government’s report only refers to the conclusion of one collective agreement, the revision of which is envisaged, the Committee requests it to indicate precisely the measures adopted or envisaged to encourage and promote the development and utilization of machinery for the voluntary negotiation of collective agreements between employers’ and workers’ organizations with a view to the regulation of terms and conditions of employment. It also requests it to provide information of a practical nature on the general situation with regard to collective bargaining, and particularly on the number of collective agreements concluded up to now and the sectors covered.

3. The Committee also wishes to draw the Government’s attention to the following provisions of the Labour Code:

-  section 68 (Book I) provides that in the absence of national, regional or local collective agreements or a ministerial order determining the conditions of employment of a specific occupation, a collective accord covering one or more establishments may only cover the determination of wages and their accessories, unless otherwise provided by the Minister of Labour. The Committee considers that a restriction of this nature on the subjects which may be covered by negotiation is contrary to the principle of free and voluntary collective bargaining. It requests the Government to indicate the measures adopted or envisaged to eliminate this restriction, if possible in the future Labour Code;

-  the Committee notes that under the terms of section 40, as amended (Book IV), of the Labour Code, in the case of any collective dispute which has not been resolved in the context of the mediation procedure (after the failure of the conciliation and arbitration procedures envisaged by the collective agreement, and then of the conciliation procedure), the Minister of Labour may decide to submit the dispute to the arbitration procedure, which results in a binding arbitration award. The Committee wishes to emphasize that compulsory arbitration imposed upon the two parties by the Government authorities and which results in a binding award is difficult to reconcile with the principle of free and voluntary negotiation set forth in Article 4 (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 258). The Committee requests the Government to indicate the measures adopted or envisaged, if possible in the future Labour Code, to ensure that collective disputes are submitted to arbitration only on the basis of an agreement between the parties.

4. Article 6. Public servants. The Committee notes that, under the terms of section 69 (Book I) of the Labour Code, collective agreements may be concluded in accordance with the Labour Code for the staff of public services, enterprises and establishments who are not governed by specific conditions of service established by laws or regulations. Moreover, Act No. 93-09 of 18 January 1993 issuing the general conditions of service of public servants and contractual State employees applies, on the one hand, to persons appointed to permanent civil employment in State administrations and public establishments of an administrative nature, and who therefore enjoy the status of public servants and, on the other, to officials engaged under contract on behalf of the State or its public establishments of an administrative nature and who therefore have the status of public employees. The Committee notes that Act No. 93-09, while recognizing the right to organize of these categories of workers, does not refer to their right to collective bargaining. However, section 20 indicates that public servants "participate" in the organization and operation of services and the formulation of rules governing their conditions of service through their delegates on the consultative bodies of the public service. Reference is also made to educational and research posts (section 5) and to the managerial and supervisory staff of State schools, universities and training institutions, as well as aerial transport (section 21), although the Committee is not in a position to determine whether the workers concerned have the right to collective bargaining.

The Committee recalls that, under the terms of Article 6, the Convention does not deal with the position of public servants who are understood, in a restrictive manner, to be public servants engaged in the administration of the State (such as officials in ministries and other comparable government bodies, and their auxiliaries). However, other public servants and employees (such as those working in public enterprises or autonomous public institutions) should be able to negotiate collectively their terms and conditions of employment; this is the case, among others, for employees in the education and aerial transport sectors. In the light of the above, the Committee requests the Government to specify the establishments which are considered to be public administrative establishments and the exact situation with regard to collective bargaining by personnel in the education sector (including research and training) and in air transport. In particular, the Committee also requests the Government to indicate the number of collective agreements concluded in the public sector and the branches of activity concerned.