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

The Committee notes the recently adopted Labour Code and wishes to raise in this respect the following points.

The Committee notes that, while section 2(3) of the Code generally prohibits discrimination based on “membership in an association”, the Committee considers that this provision does not constitute sufficient protection against anti-union discrimination. The Committee therefore requests the Government to include in the Labour Code specific provisions prohibiting acts of anti-union discrimination and providing for specific procedures for redress to be available to workers in case of such acts, including dismissals, transfers, downgrading, etc., as well as setting out sanctions that can be applied in each of these cases. The Committee requests the Government to keep it informed of the measures taken or envisaged in this respect.

The Committee notes that, according to section 5(8), “the employer shall not be liable to substantiate his/her decision for not recruiting the applicant”. The Committee is of the view that the application of this section in practice might result in placing on a worker an insurmountable obstacle when proving that he/she was not recruited because of his/her trade union activities. The Committee therefore requests the Government to amend its legislation so as to provide adequate protection against anti-union discrimination at the time of hiring. It requests the Government to keep it informed of the measures taken or envisaged in this respect.

Finally, the Committee notes that, according to sections 37(d) and 38(3) of the Code, the employer has a right to terminate a contract at his/her initiative with his/her employee provided that the employee is given one month’s pay, unless otherwise envisaged by the contract. In light of the absence of provisions banning dismissals by reason of union membership or participating in union activities, the Committee considers that there is insufficient protection against anti-union dismissals as called for by Articles 1 and 3 of the Convention. The Committee requests the Government to amend its legislation so as to ensure that there are truly compensatory measures for anti-union dismissals, including reinstatement, as well as sufficiently dissuasive sanctions in the case of violations (see General Survey on freedom of association and collective bargaining, 1994, paragraphs 219-221). The Committee requests the Government to keep it informed of the measures taken or envisaged in this respect.