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

Articles 1 and 2 of the Convention. Protection against acts of discrimination and anti-union interference. The Committee recalls that for many years it has been commenting on:

–      the absence of legal provisions affording protection to workers who are not trade union leaders against all acts of anti-union discrimination (article 88 of the Constitution only affords protection against discrimination based on trade union preferences);

–      the absence of adequate penalties for non-observance of the provisions relating to the employment stability of trade unionists and to acts of interference in workers’ and employers’ organizations by each other (the Committee indicated previously that the penalties laid down in the Labour Code for failure to comply with the legal provisions on this point in sections 385, 393 and 395 are not sufficiently dissuasive, except in the case of a repeat offence by the employer, when the fine is doubled). In this respect, the Government refers in general terms to section 286 of the Labour Code, which provides that workers’ and employers’ organizations shall enjoy adequate protection against any acts of interference by each other; and

–      the delays in the application of justice in relation to acts of anti-union discrimination and interference.

The Committee notes the Governments reply to the comments of the International Trade Union Confederation (ITUC), of 29 August 2008, in relation to the application of the Convention, and also to comments made in previous years concerning the dismissal of trade union leaders and members, as well as acts of anti-union interference. The Committee also notes the new comments of the ITUC of 26 August 2009 referring to further dismissals of trade union leaders and members. The Committee requests the Government to provide its observations in this respect.

The Committee also notes that the Committee on Freedom of Association requested the Government, in consultation with the social partners, to ensure effective national procedures for the prevention and sanctioning of anti-union discrimination (see Case No. 2648, 355th Report, paragraph 953(a)).

The Committee further recalls that the Convention guarantees to workers adequate protection against any acts of anti-union discrimination during recruitment and employment, and in respect of termination of employment, and that this protection encompasses all measures that are discriminatory in nature (dismissals, transfers, demotion). The Committee emphasizes the importance of rapid protection procedures accompanied by effective and dissuasive penalties. Furthermore, the Convention provides that workers’ and employers’ organizations shall enjoy adequate protection against any acts of interference by each other. The Committee also emphasizes that legislative provisions are inadequate if they are not accompanied by effective and prompt procedures and sufficiently dissuasive penalties to ensure their enforcement in cases of anti-union discrimination or interference. The Committee requests the Government to take measures to resolve these matters, for example through the draft partial reform of the Labour Code that is under examination.

Article 6. Public officials not engaged in the administration of the State. The Committee recalls that in its previous observation it considered that sections 49 and 124 of the Public Service Act do not afford adequate protection against all acts of anti-union discrimination within the meaning of Article 1 of the Convention (which not only covers dismissal, but also transfers and other prejudicial measure). The Committee requests the Government to take the necessary measures to establish in the legislation adequate protection against acts of anti-union discrimination against public servants and public employees, including those who are not trade union leaders, and also sufficiently dissuasive sanctions for those who commit violations.

Finally, while appreciating the fact that the Government has requested technical assistance from the Office with a view to resolving the pending problems and to address the issue of the legislative amendments requested in the previous paragraphs in the context of the National Congress, the Committee hopes that this assistance will be provided in the near future.

The Committee hopes that it will be able to note progress at the legislative level (particularly in relation to the forthcoming reform of the Labour Code) in the near future and requests the Government to provide information in its next report on any developments in this respect.