Observation (CEACR) - adoptée 2008, publiée 98ème session CIT (2009)

The Committee notes the Government’s report and its reply to the 2006 comments of the International Confederation of Free Trade Unions (ICFTU).

Article 3 of the Convention. The Committee recalls that its previous comments concerned certain restrictions imposed on the exercise of the right to strike (sections 77, 78 and 80 of the Labour Code). The Committee notes that these legislative provisions have since then been amended and notes the text of the relevant amendments as entered into force on 1 July 2008. In this respect, the Committee wishes to raise the following points.

(a) Unilateral determination of minimum service. The Committee had previously requested the Government to amend section 80(2) of the Labour Code so as to ensure that, in the event of disagreement among the parties to the collective labour dispute on the minimum service, the definition of the service to be ensured may be determined by an independent and impartial body. The Committee notes that according to the new amendment to subsection 2, the minimum services shall be determined by the parties to the collective dispute within three days from the day of submission of warning about the strike to the employer. The Committee notes, however, that, according to subsection 3, if no agreement is reached by the parties to the dispute, the decision shall be made by the Government or a municipal executive body upon consultation with the parties to the dispute. The Committee considers that it would be highly desirable for negotiations on the definition and organization of the minimum service not to be held during a labour dispute, so that all parties can examine the matter with the necessary objectivity and detachment (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 161). As regards the legal requirement that any disagreement on the minimum services shall be settled by the authorities, the Committee is of the opinion that the legislation should provide for any such disagreement to be settled by an independent body, and not by the Government or a municipal executive body. The Committee therefore requests the Government to take the necessary measures to amend section 80(3) of the Labour Code accordingly and to indicate any progress made in this respect.

(b) Strike ballot. The Committee had previously requested the Government to amend section 77(1) of the Labour Code so as to lower the quorum (set at two-thirds of the enterprise employees voting in favour of a strike at the enterprise; and two-thirds of employees of a structural subdivision of the enterprise and at least half of the employees of the enterprise voting in favour of a strike in the structural subdivision of the enterprise) and to ensure that, account it taken only of the votes cast. The Committee notes with interest that according the new amendment, the right to adopt a decision to declare a strike is vested in the trade union according to the procedure laid down in its regulations. If an enterprise has no operational trade union and the meeting of workers has not conveyed the function of representation and protection of workers to a trade union of relevant economic branch, the labour council shall have to right to adopt a decision to declare a strike.

(c) Compensatory guarantees. In its previous comments, the Committee had requested the Government to provide information on the manner in which claims of workers in essential services are settled and on the relevant body responsible for taking the final decision in this respect. The Committee notes that, by virtue of the recent amendments, strikes are prohibited in first aid medical services and the demands put forward by the workers concerned are settled by the Government upon consultation with the parties to the collective labour dispute (section 78). The Committee recalls in this respect that if the right to strike is subject to restrictions or a prohibition, workers who are thus deprived of an essential means of defending their socio-economic and occupational interests should be afforded compensatory guarantees, for example conciliation and mediation procedures leading, in the event of deadlock, to arbitration machinery seen to be reliable by the parties concerned. It is essential that the latter be able to participate in determining and implementing the procedure, which should furthermore provide sufficient guarantees of impartiality and rapidity (see General Survey, op. cit., paragraph 164). The Committee therefore requests the Government to amend section 78(1) accordingly and to indicate the measures taken or envisaged in this respect.

(d) Strikes in nuclear facilities. With respect to the Committee’s previous request to provide information on any use of section 199(4) of the Criminal Code providing for criminal liability for strikes at nuclear facilities, the Committee notes with interest the Government’s indication that the Criminal Code of 1961 became invalid on 1 May 2003 and that the Criminal Code of 2000 (in force as of 1 May 2003) does not criminalize strikes at nuclear facilities.