Demande directe (CEACR) - adoptée 2004, publiée 93ème session CIT (2005)

The Committee notes the Government’s report as well as the adoption of the Labour Code (Law No. 154-XV of 28 March 2003).

Article 2 of the Convention. Right of employers and workers to form and join organizations of their own choosing. The Committee had previously noted that under section 10(1) and (5) of the Law on Trade Unions, trade unions acquire legal personality at the national, sectoral and intersectoral levels from the time of their registration. As for the primary trade unions, the territorial, sectoral and intersectoral trade unions, those organizations acquire their legal personality in accordance with the charters of the registered national, sectoral and intersectoral trade unions. The Committee once again requests the Government to indicate whether trade unions (primary trade unions and the territorial, sectoral and intersectoral trade unions) which are not affiliated to national, sectoral and intersectoral trade unions may be granted legal personality and hence engage fully in the activities of defending and promoting the interests of their members.

In its previous comments, the Committee recalled that a requirement of a membership of at least ten employers to create an employers’ organization was too high and likely to be an obstacle to the free creation of employers’ organizations. The Committee once again requests the Government to keep it informed of the developments regarding a draft bill amending the law on employers’ organizations, referred to in the Government’s earlier report and in particular, its section 6.

Article 3. Right of workers’ organizations to organize their activities. The Committee notes the Government’s indication that the procedure of the organization of a strike is now regulated by the Labour Code of 2003 and that following the enactment of the Code, the law on settlement of collective labour disputes was repealed.

The Committee notes that according to section 363(3) of the Labour Code, strikers are obliged "to provide uninterrupted functioning of the equipment and installations which, if stopped, could endanger the life and health of people or cause irreparable damage to the enterprise". The Committee recalls in this respect that the authorities could establish a system of minimum service in services which are of public utility in order to avoid 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 consumers who suffer the economic effects of collective disputes. However, such a service should meet at least two requirements. Firstly, and this aspect is paramount, it must genuinely and exclusively be a minimum service, that is, one which is limited to the operations which are strictly necessary to meet the basic needs of the population or the minimum requirements of the service while maintaining the effectiveness of the pressure brought to bear. Secondly, since this system restricts one of the essential means of pressure available to workers to defend their economic and social interests, their organizations should be able, if they so wish, to participate in defining such a service, along with employers and public authorities. It would be highly desirable for negotiations on the definition and organization of the minimum service not to be held during a labour dispute, so that all parties can examine the matter with the necessary objectivity and detachment. The parties might also envisage the establishment of a joint or independent body responsible for examining rapidly and without formalities the difficulties raised by the definition and application of such a minimum service and empowered to issue enforceable decisions (see General Survey on freedom of association and collective bargaining, 1994, paragraphs 160-161). The Committee requests the Government to indicate the manner in which the workers under section 363(3) are determined.

The Committee further notes that according to section 369 of the Labour Code, workers employed in communication services, employees of continuously working enterprises and workers of enterprises manufacturing products for the defensive needs of the country are prohibited from participating in strike actions. The Committee recalls that, as an exception to the general principle of the right to strike, the essential services in which this principle may be entirely or partly waived should be defined restrictively: the Committee therefore considers that essential services are only those the interruption of which would endanger the life, personal safety or health of the whole or a part of the population (General Survey, op. cit., paragraph 159). The Committee considers that, while telecommunication services could be considered essential, other workers employed in communication services should be able to enjoy the right to strike. The Committee requests the Government to clarify the workers concerned by the prohibition in section 369(2)(c) and (h) and to specify the "continuously working enterprises" in which the right to strike is prohibited.

The Committee notes the Government’s indication that the Criminal Code of 1961 was repealed and replaced with the Criminal Code of 2002. The Government further indicates that the new Code provides for criminal responsibility for the organization of an unlawful strike (section 357) as well as for the organization of or the participation in group-actions and breaking public order (section 358). The Committee notes that according to section 357(1), the unlawful strike is punishable by a fine in the amount of 500 conventional units, or by unpaid labour for public benefit for the period from 100 to 240 hours, or by imprisonment for the period of up to three years. According to section 358(1), the organization of or active participation in group actions, breaking violently public order, related to […] the obstruction of the normal functioning of the transport, enterprises, institutions and organizations shall be punished by the imposition of a fine in the amount of 500 conventional units, or by imprisonment for a period up to three years. The Committee recalls that restrictions on the right to strike can only be imposed in essential services and with respect to public servants exercising authority in the name of the State and that sanctions should be possible only where the prohibitions in question are in conformity with the provisions of the Convention. Furthermore, since the application of disproportionate penal sanctions does not favour the developments of harmonious and stable industrial relations, if measures of imprisonment are to be imposed at all, they should be justified by the seriousness of the offences committed (see General Survey, op. cit., paragraph 177). The Committee requests the Government to indicate the measures taken or envisaged to amend section 358 in order to ensure that penal sanctions for strike action may only be imposed where the prohibition of the strike is in conformity with the Convention and that, even in these cases, the sanctions imposed are not disproportionate to the seriousness of the violation.

The Committee further requests the Government to keep it informed of any use of section 357 of the Criminal Law in practice.