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

The Committee notes that the Government’s report has not been received. It must therefore repeat its previous observation, which read as follows:

1. Article 2 of the Convention. Right of workers and employers, without distinction whatsoever, to establish and join organizations without previous authorization. On several occasions, the Committee has requested the Government to amend Ordinance No. 27/INT/SUR of 28 July 1962 regulating associations, so as to guarantee that it does not apply to occupational organizations. This Ordinance contains several provisions on the establishment of associations and the supervision of their operation by the authorities; it makes the existence of associations subject to authorization by the Ministry of the Interior and confers upon the authorities broad supervisory powers over the administration of associations, under threat of administrative dissolution. The Committee noted that, in its 2000 report, the Government stated that, following the intercession of the Ministry of Public Service, Labour and Employment Promotion with the Ministry of the Interior, the 1962 Ordinance no longer in practice applies to trade union organizations. The Government also stated that all workers’ and employers’ organizations in the country recognize that this is indeed the case. While noting that the Labour Code does not provide for such authorization for trade unions, the Committee has always considered that it is desirable for occupational organizations to be explicitly excluded from the scope of the Ordinance to prevent them from falling within its scope of application, as was the case in the past. The Committee requests the Government to take the necessary measures for this purpose and to keep it informed thereof in its next report.

Recalling that all workers have the right to freedom of association, the Committee noted in previous comments that, under the terms of section 294(3) of the Labour Code, fathers, mothers or guardians may oppose the right to organize of young persons under the age of 16 years. The Committee emphasized that Article 2 guarantees all workers, without distinction whatsoever, the right to establish and join organizations. In its report in 2000, the Government indicated that section 294(3) is due to be repealed when the texts implementing the Labour Code are adopted. Noting that, by virtue of section 52 of the Labour Code, the minimum age for admission to employment is 14 years, the Committee hopes that subsection 3 of section 294 will be amended in the near future to guarantee the right to organize of young persons who are legally entitled to work, both as workers and as apprentices, without parental authorization being necessary. It requests the Government to supply copies of any implementing texts relating to freedom of association that are adopted.

2. Article 3. Right of workers’ and employers’ organizations to organize their administration and activities in full freedom. The Committee noted in previous comments that section 307 of the new Labour Code continues to provide that the accounts and supporting documents for the financial transactions of trade unions must be submitted without delay to the labour inspector, when so requested. In this respect, the Government indicated in previous reports that the texts to be issued under the Labour Code should establish further provisions governing the conditions for such supervision, which could be carried out following a claim or a complaint by a trade unionist. The Committee trusts that the Government will take the necessary measures to provide effective guarantees of the right of occupational organizations to organize their administration without any interference by the public authorities, which involves, among other measures, ensuring that financial supervision is confined to an obligation to submit periodic financial reports and that any verification of accounts is limited to exceptional cases, such as the lodging of a complaint. It requests the Government to keep it informed in this respect in its next report and to indicate, in the event that the texts issued under the Labour Code have still not been adopted, the conditions under which supervision of the financial management of trade unions by labour inspectors is carried out in practice.

The Committee requested the Government to provide information on the application in practice of Decree No. 96/PR/MFPT/94 of 29 April 1994 issuing regulations respecting the exercise of the right to strike in the public service. The Committee recalls that this Decree provides for a conciliation and arbitration procedure prior to the calling of a strike and for a compulsory minimum service in certain public services the interruption of which would result in extremely serious disruption of the life of the community. In its report in 2000, the Government indicated that the above Decree had given rise to strong opposition by trade union confederations and that it had therefore never been applied in practice. The Government stated that the texts that are due to be issued under the Labour Code should explicitly repeal this Decree. The Committee wishes to recall that the right to strike may be restricted, or even prohibited, only in the case of public servants exercising authority in the name of the State or in essential services in the strict sense of the term, that is services the interruption of which would endanger the life, personal safety or the health of the whole or part of the population. Furthermore, 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, the authorities could establish a system of minimum service in other services which are of public utility. The Committee requests the Government to provide copies of the texts of the Act of 31 December 2001 issuing the general conditions of service of the public service and its implementing Decree of 23 June 2003, and of any other text repealing or amending Decree No. 96/PR/MFPT/94, and to indicate the manner in which the right to strike is exercised in practice in the public service.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.