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

The Committee notes the information contained in the Government’s report and recalls that its previous comments related to the following points.

Article 2 of the Convention. Trade union rights of minors. For several years, the Committee has been emphasizing that section L.11 of the Labour Code (as amended in 1977) provides that minors over 16 years of age may join trade unions unless their membership is opposed by their father, mother or guardian.

The Government reiterates the indications provided in its previous reports that freedom to join a trade union remains the rule, and that opposition by the parents of the young person merely responds to a duty to protect her or his interests against a premature decision which could subsequently prove to be prejudicial.

The Committee recalls in this respect that the Convention does not authorize any distinction based on such reasons (see General Survey on freedom of association and collective bargaining, 1994, paragraph 64) and it requests the Government to amend the legislation accordingly and to inform it of any measures adopted in this respect.

Articles 2, 5 and 6. Right of workers to establish organizations of their own choosing without previous authorization. The Committee for several years has pointed out the need to repeal Act No. 76-28 of 6 April 1976, which confers discretionary powers on the Minister of the Interior with regard to issuing a receipt recognizing the existence of a trade union. Furthermore, the Committee has already emphasized on several occasions that section L.8 of the Labour Code (as amended in 1997) reproduces the substance of the Act of 1976 by requiring previous authorization from the Minister of the Interior for the establishment of trade unions, federations and confederations.

In its report, the Government reaffirms that the receipt issued by the Minister of the Interior does not constitute the authorization or refusal of the existence of a trade union which, in the same way as any association, is only subject to the procedure of the declaration of its existence, which provides the reason for issuing the receipt.

Noting that section L.8(6) provides that "in the light of the reports prepared by the labour inspector and the Attorney-General of the Republic, and following the opinion of the Minister of Labour, the Minister of the Interior shall issue or not issue the receipt, in accordance with section 812 of the Code of Civil and Commercial Obligations", the Committee once again emphasizes the importance that it attaches to compliance with Articles 2, 5 and 6 of the Convention, which guarantee workers and workers’ organizations the right to establish organizations of their own choosing without previous authorization. It once again asks the Government to repeal as soon as possible the requirement for previous authorization contained in section L.8 of the Labour Code so as to bring the legislation into line with the practice that it describes, and to provide information on any measures adopted in this respect.

Article 3. Requisitioning. The Committee has been emphasizing for several years that section L.276 grants the administrative authorities broad powers to requisition workers in private enterprises and public services and establishments who occupy posts considered to be essential for the security of persons and property, the maintenance of public order, the continuity of public services or the satisfaction of the country’s essential needs.

The Government indicates in its report that it has taken note of the Committee’s observations, without however indicating the measures that it intends to take.

The Committee once again requests the Government to provide a copy of the Decree issued under section L.276 setting forth the list of essential services so that it can ensure that it is compatible with the provisions of the Convention. It once again recalls that the requisitioning of workers as a means of settling labour disputes can result in abuses. Such action is therefore to be exclusively confined to the maintenance of essential services in particularly serious circumstances. In the view of the Committee, requisitioning can be justified only in services the interruption of which would endanger the life, personal safety or health of the whole or part of the population, or in the event of an acute national crises.

The Committee further recalls that section L.276 in fine provides that workplaces or the immediate surroundings thereof may not be occupied during a strike, under penalty of the sanctions provided for in sections L.275 and L.279. The Committee has already indicated to the Government that restrictions on workplace occupations should be limited to cases where the strike action ceases to be peaceful (see General Survey, op. cit., paragraph 174).

Article 4. Dissolution by administrative authority. For several years, the Committee has been recalling the need to amend the national legislation with a view to protecting trade union organizations against dissolution by administrative authority (Act No. 65-40 of 22 May 1965), in accordance with Article 4 of the Convention. The Committee noted that section L.287 of the Labour Code did not explicitly repeal the provisions respecting administrative dissolution contained in the 1965 legislation.

The Government indicates in its report that it has duly noted the Committee’s observations, without however indicating the measures that it intends to take.

The Committee once again reminds the Government that it would be preferable to include in a law or regulations a provision explicitly stating that the measures respecting administrative dissolution contained in Act No. 65-40 on associations do not apply to trade union organizations.

Recalling that it has already noted in particular (see the 2002 observation, 73rd Session) the Government’s statement that all the points raised in its previous comments would be taken into account during the work of the committees responsible for the formulation of texts to be issued under the Labour Code, but that the work of these committees had been suspended, the Committee once again expresses the firm hope that the necessary measures will be taken in the very near future to give full effect to the provisions of the Convention.

The Committee also observes that the Government has not made the comments requested on the observations provided by the International Confederation of Free Trade Unions (ICFTU) in its communication of 23 September of 2003, reporting interventions by the police during demonstrations by workers. The Committee asks the Government to investigate this matter promptly and to provide its observations thereon.