Demande directe (CEACR) - adoptée 2009, publiée 99ème session CIT (2010)

The Committee notes the comments made by the International Trade Union Confederation (ITUC) on the application of the Convention to the effect that workers engaged in domestic work or casual labour are not covered by the General Labour Act. The Committee requests the Government to send its observations on this matter.

In its previous comments, the Committee took note of new bills revising Trade Unions Act No. 21-C/92 and Strikes Act No. 23/91 which included some of the amendments suggested by the Committee. It notes that in its new report the Government states that the abovementioned bills have been referred to a special committee for an opinion, that the latter will take the Committee’s comments into account and that the Government is seeking technical assistance from the ILO in connection with the revision of the abovementioned acts.

The Committee recalls its previous comments on the need:

–      to amend section 3 of Trade Unions Act No. 21-C/92 providing that first-level organizations must include in their membership at least 30 per cent of the workers in the occupational branches and sectors of economic activity at the provincial level, so as to lower the percentage of workers needed to establish a first-level organization. The Committee notes that according to the Government, the new bill repeals section 3;

–      to amend section 2(2) of Strikes Act No. 23/91 (providing that any reduction or alteration of hours and methods of work that has been agreed upon collectively and does not imply a refusal to work is not treated as a strike and may therefore be subject to disciplinary action), so as to ensure that these forms of collective action are not subject to disciplinary measures. The Government indicates that the special committee will take account of its comments;

–      to amend section 6 of Strikes Act No. 23/91 which bans strike action by civilian workers in military institutions, so as to ensure that these workers may resort to strike action without incurring any punishment. While noting the information sent by the Government to the effect that the General Labour Act guarantees the trade union rights of civilian workers in the armed forces and police who thus enjoy the same rights as other workers, the Committee requests the Government to amend section 6 of Act No. 23/91 in order to align it with the General Labour Act and so eliminate any penalties that may be imposed on civilian workers in military institutions who resort to strike action when they are not engaged in essential services in the strict sense;

–      to amend section 10 of Strikes Act No. 23/91 providing that a strike may be declared only if two-thirds of the workers present in the assembly so agree and that the employer is entitled to demand the presence of a representative of the public authority at any assembly for the calling of a strike in order to check that it is properly constituted and its decisions properly adopted. The Government indicates that intervention in an assembly by a representative of the public authority is at the request of the parties (employers or trade unionists) and its purpose is mediation in the event of any internal dispute, and that the special committee will take the Committee’s comments into account. The Committee reminds the Government in this connection that workers’ organizations must be free to organize their administration and activities and to formulate their programmes without interference by the public authorities. It requests the Government to take this into account in processing the new bill on strikes;

–      to provide clarification of the wording of section 20(1) of Strikes Act No. 23/91 which provides that workers and trade unions in public utilities must, in the event of a strike, provide, “through pickets”, the services required to meet the basic needs of the population, and to indicate the exact meaning of the term “pickets” and the manner in which the necessary minimum services are determined in such an event. The Government states that workers on strike may set up strike pickets, which consist of a small group of workers located outside the establishment to protect the plant and ensure that minimum services are complied with. The Committee observes that the text could be more clearly worded and asks the Government to take advantage of the current revision of the legislation to draft section 20(1) more precisely and to ensure that minimum services are determined, not by the public authorities alone, but with the organizations of employers and workers concerned and that any disagreement must be settled by an independent body;

–      to amend section 20(3) of Strikes Act No. 23/91 which allows workers to be requisitioned in the event of a strike in: (a) the postal services; (b) fuel supply; (c) public transport; and (d) the loading and unloading of foodstuffs, since these are not essential services in the strict sense of the term (i.e. services the interruption of which would endanger the lives, personal safety or health of the whole or part of the population). The Committee reminds the Government that although employers may demand compliance with minimum services established with the participation of workers’ organizations, requisitioning by a decision of the administrative authorities should be possible only in essential services in the strict sense of the term. The Government indicates that the special committee will take account of the Committee’s comments. The Committee points out that minimum services could be required in services (a), (b), (c) and (d);

–      to ensure that section 27 of Strikes Act No. 23/91 providing for penalties of imprisonment and fines for the organizers of a strike that has been forbidden, declared unlawful or suspended, is not applied in the event of legitimate industrial action, and that the prison penalty is proportionate and may be imposed only in the event of criminal violence. The Government indicates that there is no record of any prison sentences having been imposed on trade unions for taking strike action and that in all probability there have been trade unionists sentenced to prison terms for acts of violence. The Committee requests the Government to take the necessary steps to ensure that section 27 of Act No. 23/91 may be applied only in response to violence, thus confirming in law the practice described by the Government;

–      to indicate whether the suspension of the employment contract of trade union officers, provided for in section 31 of Trade Unions Act No. 21-C/92 is a workers’ right, or whether all union officers are required to suspend their employment temporarily in order to carry out trade union activities. The Government indicates that temporary suspension of the employment contract is a right of trade union officials;

–      to indicate whether sympathy strikes or protest actions for economic and social policy considerations not contemplated in section 3 of Strikes Act No. 23/91 can be held without incurring penalties. The Committee notes that according to the Government the legislation in force is silent with respect to strikes of this nature. It requests the Government to take the necessary steps to ensure that the new legislation does not exclude sympathy strikes or actions to protest against economic and social policy;

–      to provide information on section 8(1) of the Strikes Act, under which the right to strike of workers in ports, airports, railways, air and sea transport and any other enterprise that provides essential goods or services for the army shall be exercised in a manner that does not affect the supplies needed for national defence. The Committee specifically asked how the volume of the necessary supplies is established. The Government indicated in its previous report that the bill revising the Strikes Act repeals this section;

–      since the Government intends to repeal section 8(1), to ensure that section 8(2) (providing for compulsory arbitration and for a mediation procedure in the case provided for in subsection 8(1)) is also repealed;

–      to explain the meaning of the phrase “in situations threatening the peace or in the event of public disaster” in section 8(4) providing for the suspension of the right to strike by a decision of the Council of Ministers in the event of public disaster, and to indicate in what circumstances and how many times this provision has been applied. The Government reiterates that, as yet, a disaster has never coincided with a strike and that Parliament will take account of the fact that this provision is out of date (the Government also indicated in its previous report that the new bill will provide that suspension shall be at the decision of the judicial authority);

–      to provide clarification regarding section 3(6) of Trade Unions Act No. 21‑C/92 and the right to establish enterprise unions. The Committee asks the Government in particular to confirm whether this provision enables workers to organize at enterprise level.

The Committee expresses the hope that ILO technical assistance with the preparation of the bills to revise Trade Unions Act No. 21-C/92 and Strikes Act No. 29/91 will be forthcoming in the near future, that the abovementioned bills will shortly be approved by the National Assembly and that they will take account of all the Committee’s comments so as to make current legislation fully consistent with the Convention. The Committee requests the Government to provide a copy of these bills with its next report.