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

The Committee notes the information contained in the Government’s report. The Committee also takes note of the conclusions and recommendations of the Committee on Freedom of Association in Case No. 2118 [see 330th Report, paragraphs 103-116, and 332nd Report, paragraphs 80-83].

Article 2 of the Convention. The Committee notes from the Government’s report that protection against interference by workers’ or employers’ organizations into each other’s establishment, functioning or administration may be derived from the general provisions governing the establishment and functioning of these organizations, but is not explicitly integrated into labour legislation. On this issue, the Committee recalls that "Governments which have ratified the Convention are however under the obligation to take specific action, in particular through legislative means, to ensure respect for the guarantees laid down in Article 2" (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 230). The Committee therefore requests the Government to take all necessary measures to adopt specific legislative provisions prohibiting acts of interference (in particular, those designed to promote the establishment of workers’ organizations under the domination of employers or employers’ organizations, or to place workers’ organizations under the control of employers or employers’ organizations through financial or other means), and establishing rapid appeal procedures, coupled with effective and dissuasive sanctions against such acts.

Article 4. The Committee notes that the Labour Code provides that collective agreements may be concluded: (a) jointly by all trade unions if their cumulative power represents an absolute majority of the votes cast in the elections for works councils (section 33(3)); or (b) jointly by certain trade unions each one of which represents at least 10 per cent of the votes cast in these elections and have obtained altogether more than 50 per cent of the votes (sections 33(4) and 29(4)); and (c) individually, only where one trade union has received more than 65 per cent of the votes cast in the elections for works councils (section 33(5)). The Committee also notes that the Constitutional Court found these provisions unconstitutional because their application prevents the trade union with the widest support from concluding a collective agreement with the employer.

The Committee considers that problems may arise when the law stipulates that trade unions must attain a percentage of 65 per cent (individually) or 50 per cent (jointly) in order to be recognized as bargaining agents, since unions which fail to secure this excessively high threshold are denied the possibility of bargaining. The Committee requests the Government to take all necessary measures to amend section 33 of the Labour Code so as to lower the minimum threshold requirements set for recognition as a bargaining agent, and ensure that, where no trade union reaches these thresholds, collective bargaining rights are granted to all unions in the unit, at least on behalf of their own members. The Committee requests the Government to keep it informed of any measures taken or contemplated in order to bring the legislation into conformity with Articles 2 and 4 of the Convention.