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

The Committee noted previously the adoption of Act No. 2006-010 of 13 December 2006 issuing the Labour Code and drew the Government’s attention to certain provisions.

Sections 25 and 26 of the Labour Code. The Committee notes that, under the terms of section 25 of the Labour Code, the representative nature of a workers’ or employers’ organization is recognized by decision of the minister responsible for labour, and that this decision may be appealed to the administrative tribunal. It further notes that the criteria of representativeness shall be determined by order of the minister responsible for labour, in accordance with section 26 of the Labour Code. The Committee previously requested the Government to indicate whether these criteria of representativeness have been established and, if so, to provide any texts issued under sections 25 and 26 of the Labour Code. The Committee notes that, according to the Government’s report, this provision was adopted following broad consultation with the social partners; however, the next session of the National Council for Labour and Social Legislation should decide whether or not to validate these provisions. The Committee hopes that in the future the representative nature of organizations will be based on objective and pre-determined criteria and it requests the Government to provide information in this respect.

Section 60 of the Labour Code. The Committee notes that, by virtue of this provision, the dismissal of workers due to their membership or non-membership of a union shall be considered, among other criteria, as not being a valid reason for dismissal. The Committee recalls that, under the terms of the Convention, workers should also benefit from adequate protection against any acts prejudicial to them, including dismissal, which are motivated by their participation in trade union activities. The Committee notes that, according to the Government, any discrimination by an employer against a trade union organization gives rise to penal sanctions. The Committee observes that its request relates to acts of anti‑union discrimination against workers, and not against organizations. The Government is requested to take the necessary measures to amend the legislation with a view to ensuring the protection of workers against any discriminatory measures, including dismissal, by reason of their participation in trade union activities.

Section 260 of the Labour Code. The Committee observes that, by virtue of this provision, in the event of persistent disagreement between the parties to collective bargaining on certain points in a collective dispute, the minister responsible for labour may submit the matter to an arbitration board following the failure of conciliation. According to the Government, this consists of purely judicial arbitration that is envisaged following the exhaustion of all other means. In this respect, the Committee wishes to draw the Government’s attention to the fact that section 260 of the Labour Code, which provides for arbitration imposed by the authorities, without the parties to the dispute requesting it, is contrary to the principle of the autonomy of the parties and the principle of free and voluntary negotiation envisaged in the Convention. The Committee therefore requests the Government to take measures to amend the legislation with a view to providing that compulsory arbitration is only possible at the request of the two parties to the dispute or in the context of disputes relating to essential services in the strict sense of the term, or for public servants exercising authority in the name of the State.