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

The Committee notes the information contained in the Government’s report. It also notes Act No. 2004-017 of 6 July 2004 issuing the Labour Code.

Articles 1, 2 and 3 of the Convention. In its previous comments, the Committee raised the question of the penalties applicable for acts of anti-union discrimination against workers and acts of interference in workers’ and employers’ organizations by each other.

The Committee notes with satisfaction that acts of anti-union discrimination and interference give rise, under the terms of sections 267 and 435 of the new Labour Code, to damages and sufficiently dissuasive sanctions, including penal sanctions.

Article 4. 1. In its previous comments, the Committee requested the Government to amend section 68 (Book I) which provided that, in the absence of national, regional or local collective agreements or a ministerial order determining the terms and conditions of employment of a specific occupation, a collective agreement covering one or more establishments may only cover the determination of wages and associated benefits, unless otherwise provided by the Minister of Labour. The Committee notes with satisfaction that this provision has been deleted and that section 100 of the new Labour Code provides that the purpose of an enterprise or establishment agreement, in the absence of any other collective agreement, is to determine the conditions of employment, work and social security, as if it consisted of a "simple" collective agreement.

2. (a) The Committee notes that under section 98 of the new Labour Code, a collective agreement covering one or more enterprise or one or more establishment of an enterprise may be concluded between, on the one hand, one or several employers or a group of employers and, on the other, the staff delegates of the enterprise or establishment.

The Committee emphasizes that governments are under the obligation, in accordance with Article 4, to encourage and promote collective bargaining between employers or employers’ organizations and workers’ organizations. The Committee requests the Government to amend section 98 so that collective enterprise or establishment agreements can only be concluded with staff delegates either in the absence of representative trade unions at the level of the enterprise or establishment or, alternatively, if trade unions may jointly participate in the negotiations.

(b) In its previous comments, the Committee requested the Government to indicate the measures adopted or envisaged to ensure that collective disputes are submitted to compulsory arbitration only on the basis of agreement between the two parties. The Committee notes the Government’s indication in its report that, with regard to arbitration, the new Labour Code includes major innovations to shorten the periods for the settlement of disputes, which were previously long, through the introduction of time limits relating to the three stages of the settlement of collective disputes.

However, the Committee notes that sections 350-356 allow the Minister of Labour to impose compulsory arbitration on the parties to collective bargaining. Recalling that compulsory arbitration imposed upon the parties by government authorities leading to a binding award is difficult to reconcile with the principle of free and voluntary negotiation as set out in Article 4 (see General Survey on freedom of association and collective bargaining, 1994, paragraph 258), the Committee urges the Government to take measures to amend the Labour Code so as to eliminate the possibility of compulsory arbitration being imposed unilaterally by the Minister of Labour.

(c) The Committee once again requests the Government to provide practical information on the general situation with regard to collective bargaining, and particularly the number of collective agreements concluded up to now and the sectors concerned, as well as on any measure adopted to promote collective bargaining.

Article 6. In its previous comments, with reference to Act No. 93-09 of 18 January 1993, issuing the general conditions of service of public servants and contractual state employees, the Committee requested the Government to specify the establishments that 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. The Committee notes that the new Labour Code accords the right to collective bargaining to certain categories of personnel in public services, establishments and enterprises. Section 68 of the new Labour Code provides that, where the personnel of public services, enterprises and establishments is not governed by specific conditions of service set out in law or regulation, collective agreements may be concluded in accordance with the provisions applicable to "simple" collective agreements. The list of establishments concerned shall be determined by decree.

The Committee requests the Government to indicate the categories of public employees governed by conditions of service set out in specific laws or regulations and covered by section 68 and to provide a copy of the decree, if it has been adopted, referred to by this provision.

With regard to teaching personnel, the Government indicates that there are three independent occupational trade unions in the higher, secondary and primary education sectors, which are covered by collective bargaining in which all issues related to collective agreements, without restriction as to the sector, are discussed. The Committee requests the Government to confirm that trade unions of teachers have the right to participate directly in collective bargaining relating to their members and to conclude collective agreements, and to provide copies of the collective agreements concerned.

Finally, the Committee once again requests the Government: (1) to provide information on the situation of air transport personnel in relation to collective bargaining; and (2) to indicate the number of collective agreements concluded in the public sector, with an indication of the sector and the number of workers covered by these collective agreements.