Observation (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.

Article 2 of the Convention. Right of workers and employers, without distinction whatsoever, to establish and join organizations of their own choosing without previous authorization. In its previous comments, the Committee noted the observations made by the Free Confederation of Mauritanian Workers (CLTM) and the International Confederation of Free Trade Unions (ICFTU), relating to the situation under the former Labour Code, under which no trade union could exist and function without previous authorization. The CLTM contended that in practice over 100 applications had been blocked at the registry of the Prosecutor of the Republic since the adoption of Act No. 93-038 introducing trade union pluralism. The Committee therefore requested the Government to provide precise information on this matter. In its report, the Government indicates that, to its knowledge, no application for the establishment of trade unions is in the hands of the competent authorities. It recalls that any obstacle to freedom of association is subject to the penalties applicable in relation to obstacles to labour freedom.

The Committee notes the information provided by the Government. It observes in this respect that the new Labour Code provides, under sections 274 to 277, for a procedure that is applicable for the establishment of trade unions and federations of unions. According to this procedure, a trade union has to deposit its statutes with the competent authorities, including the Prosecutor-General of the Republic, through the competent court. These authorities issue a receipt and, within two months of issuing the receipt that the statutes have been deposited, the Prosecutor-General informs the trade union of her or his conclusions. If the statutes have been lawfully deposited and are considered to be in accordance with the law, the Prosecutor-General issues a receipt of registration. If not, she or he notifies the trade union of the refusal to issue the registration receipt. The trade union only acquires legal personality and capacity when the registration receipt is issued. Finally, if once the two-month period has expired the Prosecutor-General has not informed the trade union of the decision or notified it of a decision to refuse to issue the registration receipt the representatives of the trade union may appeal to the court of the Wilaya to obtain a judicial decision with the effect of a registration receipt.

The Committee notes that, in comparison with the former Labour Code, the procedure for the acquisition of legal personality envisaged by the new Labour Code sets out specific time limits and is ultimately subject to the control of the courts. The Committee requests the Government to report any cases of refusal to issue a registration receipt. Furthermore, noting that the procedure for the establishment of trade unions is also applicable to the modification of the internal rules of trade union organizations, the Committee requests the Government to inform it of any rejection of modifications under this procedure.

Article 3. Right of workers’ organizations to elect their representatives in full freedom and to organize their administration and activities without interference from the public authorities. 1. The Committee notes that section 278 of the new Labour Code extends the procedure for the establishment of trade unions to any changes in their administration or management. This provision therefore has the effect of subjecting such changes to the approval of either the Prosecutor-General or the courts, and therefore gives rise to serious risks of interference by the public authorities in the organization and activities of trade unions and trade union federations. The Committee requests the Government to amend section 278 so as to provide that any change in the administration or management of a trade union can take effect as soon as the competent authorities have been notified and without the requirement of their approval.

2. In its previous comments, the Committee raised the question of the access of foreign workers to office as trade union leaders. The Committee notes with satisfaction that, under section 273 of the Labour Code, the members responsible for the administration or management of an occupational trade union may be foreign nationals if they have exercised within the Islamic Republic of Mauritania the occupation defended by the trade union for at least five consecutive years.

3. In its previous comments, the Committee recalled that it had been drawing the Government’s attention for many years to the restrictions on the right to strike contained in the former Labour Code, and particularly on the referral of a collective dispute to compulsory arbitration in situations which could not be considered as essential central services in the strict sense of the term or as constituting an acute national crisis. The Committee notes that the new Labour Code maintains the referral to compulsory arbitration. Under section 362, a strike is unlawful when it occurs either during the course of mediation, for a maximum duration of 120 days, or after notification of the decision of the Minister of Labour to refer it to arbitration under the conditions set out in section 350, or following the award of the arbitration council. The Committee notes in this respect that, under section 350, the Minister of Labour may decide at his or her discretion to refer a collective dispute to arbitration in view, among other matters, of the circumstances and impact of the dispute and where she or he considers that the strike is prejudicial to public order or contrary to the general interest. Under section 355, the arbitration award cannot be appealed, but may be referred to the Supreme Court on matters of law. Section 356 provides that arbitration awards, which have not been referred to the Supreme Court, and rulings of the Supreme Court are final.

The Committee recalls that the prohibition or restriction of the right to strike by means of compulsory arbitration can only be justified in the cases of: (1) essential services in the strict sense of the term, that is those the interruption of which would endanger the life, personal safety or health of the whole or part of the population; and (2) an acute national crisis, and then only for a limited period and to the extent necessary to meet the requirements of the situation. The circumstances governing referral to compulsory arbitration by the Minister of Labour, as established in section 350, go beyond restrictions which are compatible with the Convention. The Committee therefore urges the Government to limit the prohibition on strikes, through referral to compulsory arbitration, to essential services and situations of acute national crisis. The Committee notes in this respect that, with regard to essential services in the strict sense of the term, the Government could have recourse to the Order of 6 June 2004, which determines the list of establishments considered to be essential services for the population, for the purposes of requisitioning staff under the terms of Act No. 70-029 of 23 January 1970. Finally, with regard to the prohibition of strikes throughout the period of mediation, the Committee recalls that it is possible to require that conciliation and mediation procedures must be exhausted before a strike may be called, on condition that the procedures are not so complex or slow that a lawful strike becomes impossible in practice or loses its effectiveness (see General Survey on freedom of association and collective bargaining, 1994, paragraph 171). The Committee notes that the maximum period of 120 days appears too long in this respect and requests the Government to reduce it. The Committee asks the Government to keep it informed of the measures adopted or envisaged to amend section 362 so as to guarantee the right of workers’ organizations to exercise the right to strike with a view to defending and promoting the occupational interests of their members, in accordance with Article 3.

The Committee is raising a number of other points on the provisions of the new Labour Code in a request addressed directly to the Government.