Observation (CEACR) - adoptée 2006, publiée 96ème session CIT (2007)

The Committee notes the Government’s report. The Committee also notes the comments of the International Confederation of Free Trade Unions (ICFTU) dated 10 August 2006 which refer to matters already raised by the Committee.

The Committee recalls that for many years it has been commenting on the lack of conformity of various provisions of the legislation with the Convention.

Article 2 of the Convention. The requirement of an excessively high number of workers (300) to establish a trade union at the sectoral level (section 292 of the Labour Code). The Committee notes the Government’s comments that the Convention contains no provisions or restrictions in this respect and that it is therefore necessary to adapt to the national situation, in which this requirement retains a proportional relationship with the population of the country and its level of industrialization. The Government adds that it is a flexible requirement as it is possible to establish a union at the level of an occupation with 30 workers and a works union with 20 workers. In this respect, the Committee recalls that, although the requirement of a minimum number of members to be able to establish an organization is not in itself incompatible with the Convention, the minimum number should be fixed in a reasonable manner so that the establishment of organizations is not hindered (see 1994 General Survey on freedom of association and collective bargaining, paragraph 81). In this regard, the Committee considers that the number of 300 workers to establish a trade union at the sectoral level is too high and constitutes an obstacle for the establishment by workers of organizations of their own choosing. The Committee therefore requests the Government to take the necessary measures to amend the legislation to reduce the requirement of 300 workers to establish a branch trade union to a reasonable number.

Imposition of excessive requirements to be able to hold office in the executive body of a trade union: the need to be an employee in the enterprise, industry, occupation or institution, whether active or on leave (section 298(a) of the Labour Code), to have reached the age of majority and to be an active member of the union (section 293(d) of the Labour Code). The Committee notes that, according to the Government, these requirements do not constitute restrictions on freedom of association, but protect trade union activity from outside interference and constitute a safeguard for the democratization of all institutions. The Government adds that any trade union can authorize a person to participate in its management who is not an active worker, but that the provision is intended to prevent this situation from becoming usual practice with the consequence that the management of trade unions would be distant from the workers that they claim to represent. With regard to the requirement to be an active member of the union, the Government indicates that this is a requirement for all elections of whatever type held in the country. In relation to the requirement to have reached the age of majority, the Government notes that the situation has been resolved by the adoption of the new Children and Young Persons Code (Act No. 1680 of 2001, which establishes the right to organize and participate in workers’ organizations (section 53(f)).

The Committee recalls that provisions which require the members of a trade union to belong to the respective occupation and that the officers of the organization be chosen from among its members are contrary to the Convention. Provisions of this type infringe the right of organizations to elect representatives in full freedom by preventing qualified persons, such as full-time union officers, from carrying out union duties or by depriving unions of the benefit of the experience of certain officers when they are unable to provide enough qualified persons from among their own ranks. When national legislation imposes conditions of this kind on all trade union leaders, there is also a real risk of interference by the employer through the dismissal of trade union officers, which deprives them of their trade union office. In order to bring such legislation into conformity with the Convention, it would be desirable to make it more flexible, either by admitting as candidates persons who have previously been employed in the occupation concerned, or by exempting from the occupational requirement a reasonable proportion of the officers of an organization (see General Survey, op. cit., paragraph 117). Under these conditions, the Committee requests the Government to take the necessary measures to amend the legislation (sections 293(d) and 298(a)) in accordance with the principles indicated above.

The prohibition for workers to join more than one union even if they have more than one part-time employment contract, whether at the level of the enterprise, industry, occupation or trade, or institution (section 293(c) of the Labour Code). The Committee notes the Government’s indication that this requirement is derived from the provisions of the Electoral Code, which does not allow double or triple membership. The Committee recalls that Article 2 of the Convention establishes the right of workers to join organizations of their own choosing and that, in this respect, workers who have more than one occupation in different enterprises or sectors should be able to join the unions that correspond to each of the categories of work that they perform and to be members, at the same time, if they so wish, of a union at the level of the enterprise and the occupation. The Committee requests the Government to take the necessary measures to amend the legislation as indicated above.

Article 3. The requirement that trade unions must comply with all requests for consultations or reports from the labour authorities (sections 290(f) and 304(c) of the Labour Code). The Committee notes that, in the view of the Government, this relates to the same obligation of transparency that the Constitution of the Republic imposes on each of the branches of the public authority in relation to appropriate information procedures. Furthermore, requests for information have the sole purpose of ascertaining compliance with the law. In this respect, the Committee recalls that problems of compatibility with the Convention arise when the law gives the administrative authorities powers to examine the books and other documents of an organization, conduct an investigation and demand information at any time. The Committee considers that such an obligation should be confined to submitting annual financial reports or in cases of denunciations by union members of violations of the law or the union’s rules (see General Survey, op. cit., paragraphs 125 and 126). The Committee therefore requests the Government to amend the legislation in accordance with the principle set out above.

The submission of collective disputes to compulsory arbitration (sections 284‑320 of the Code of Labour Procedure). The Committee notes that, according to the Government, these provisions were tacitly repealed by article 97 of the Constitution of the Republic enacted in 1992, which provides that “the State shall facilitate conciliatory solutions to labour disputes and social dialogue. Arbitration shall be optional.” In this respect, the Committee considers that strikes are one of the essential means available to workers and their organizations to promote their economic and social interests. Systems under which one of the parties may refer a dispute to compulsory arbitration seriously limit the means available to trade unions to further and defend the interests of their members, as well as their right to organize their activities and to formulate their programmes, and are not compatible with Article 3 of the Convention (General Survey, op. cit., paragraphs 148 and 153). The Committee therefore requests the Government, in accordance with the provisions of the Constitution and with a view to avoiding any possible ambiguity of interpretation, to take the necessary measures to explicitly repeal sections 284‑320 of the Code of Labour Procedure, which provide for compulsory arbitration in collective disputes.

The requirement that, for a strike to be called, its sole purpose must be directly and exclusively linked to the workers’ occupational interests (sections 358 and 376(a) of the Labour Code). The Committee notes that, in the view of the Government, strikes may only have as their origin conflicts of interest, such as those involved in a simple economic collective conflict relating to the claims of the workers, in contrast with legal conflicts, which must always be referred to the judicial authorities. In this respect, the Committee reminds the Government that trade union organizations, which are responsible for defending the socio-economic and occupational interests of workers, should be able to use strike action to support their positions in the search for solutions to problems posed by major economic and social policy trends which have a direct impact on their members and on workers in general, in particular as regards employment, social protection and standards of living. The Committee requests the Government to take the necessary measures to amend sections 358 and 376 in accordance with the principle recalled above.

Section 362 of the Labour Code establishes the obligation to ensure a minimum service in the event of a strike in public services that are essential to the community, without the requirement to consult the employers’ and workers’ organizations concerned. The Committee notes that, according to the Government, minimum services are those in which a total stoppage would endanger the life, health or personal safety of the whole or part of the population and that the law does not provide that such minimum services shall be imposed without consulting the representative organizations of workers and employers concerned. According to the Government, in practice, when a strike occurs in these sectors, the labour administration authorities convoke the workers’ organizations and employers that are parties to the conflict to a meeting to define the essential services. The Committee recalls that workers’ organizations should be able, if they so wish, to participate in defining minimum services along with employers and the public authorities, and that any disagreement as to the number and duties of the workers concerned should be settled by an independent body and not unilaterally by the administrative authorities. Under these conditions, the Committee requests the Government to take the necessary measures to guarantee explicitly in the legislation the right of workers’ and employers’ organizations to participate in defining minimum services and, where disagreements arise as to the number and duties of the workers concerned, they should be settled by an independent body.

In view of the fact that the Committee has been making these comments for many years, without progress being achieved in practice, it requests the Government to take the necessary measures to bring its legislation into conformity with the Convention forthwith, in accordance with the principles set out above. The Committee draws the Government’s attention to the fact that the technical assistance of the Office is at its disposal.

Finally, the Committee notes that the Government did not reply to the comments from the ICFTU of 2005 referring to numerous violent acts, including the murder of trade unionists. The Committee requests the Government to send its observations thereon.