Observation (CEACR) - adoptée 2010, publiée 100ème session CIT (2011)

The Committee notes the comments of 24 August 2010 by the International Trade Union Confederation (ITUC) referring to matters under examination by the Committee, such as the arrest of trade unionists. The Committee recalls in this connection that the detention of trade unionists on grounds related to activities carried out to defend the interests of workers is a serious violation of fundamental freedoms in general and freedom of association in particular. The Committee requests the Government to send its observations thereon.

The Committee observes that in its report the Government makes no reference to the comments the Committee has been making for many years on the legislation’s inconsistency with the provisions of the Convention. In particular, the report makes no reference to the stage reached in the enactment of the Bill which was to amend various provisions of the Labour Code in line with the Committee’s observations (the Bill had technical input from the ILO). In these circumstances, the Committee repeats its earlier comments.

The Committee reminds the Government that for many years it has been pointing out that the following provisions of the law are incompatible with the Convention:

–           the requirement of an unduly large number of workers (300) to establish a branch trade union (section 292 of the Labour Code);

–           the prohibition on joining more than one union even if the worker has more than one part-time employment contract, whether at the level of the enterprise or industry, occupation or trade, or institution (section 293(c) of the Labour Code);

–           imposition of unduly demanding conditions of eligibility for office on the executive body of a trade union: the need to be an employee in the enterprise, industry, occupation or institution, whether active or on leave (section 298(a) of the Labour Code), to have reached the age of majority and to be an active member of the union (section 293(d) of the Labour Code);

–           the requirement for trade unions to respond to all requests from the labour authorities for consultations or reports (sections 290(f) and 304(c) of the Labour Code);

–           the requirement that, for a strike to be called, its sole purpose must be directly and exclusively linked to the workers’ occupational interests (sections 358 and 376(a) of the Labour Code);

–           the obligation to provide a minimum service in the event of a strike in public services that are essential to the community without any requirement to consult the employers’ and workers’ organizations concerned (section 362 of the Labour Code);

–           the referral of collective disputes to compulsory arbitration (sections 284–320 of the Code of Labour Procedure).

The Committee notes the information sent by the Government on the drafting of a Bill to amend certain sections of the Labour Code and Amending Act No. 496/94, which was submitted to the President of the Republic for consideration on 5 June 2009 and that several of the Bill’s provisions take account of the Committee’s comments. These are: section 290(f) which limits requests for information from the labour authorities to annual statements of account; section 293(c), which allows every worker to belong to several unions on the basis of the category of work they perform; section 293(d), which extends eligibility for membership of the executive body of a trade union to non-active members; section 298(a), which provides that the general assembly shall decide on the election and removal of the authorities who must be dependent or independent workers of the enterprise, industry or occupation, whether active or on leave; sections 358 and 376, extending the purposes of a legal strike to cover not only occupational interests but also economic and social protection interests.

Furthermore, the Committee is of the view that other amendments proposed in the Bill could be improved to bring them fully into conformity with the principles of freedom of association, and in particular:

–           the proposed amendment of section 292 to reduce from 300 to 100 the minimum membership for establishing a branch trade union. The Committee is of the view that, although the reduction is significant, the number of 100 workers may still be difficult to attain and ought therefore to be reduced to no more than 50. Similarly, the minimum number of workers required to establish unions in the public sector should also be reduced by half;

–           the amendment of section 304(c) limiting the requirement to disclose information and data to “complaints raised by trade unionists”. In the Committee’s view, so as to avoid acts of interference in trade union activities, a specified percentage (for example 10 per cent) of members should be required in order to request intervention by the administration;

–           the amendment of section 362 on minimum services which introduces a last sentence stating “The decision shall be sent to the organizations of workers and employers so that they participate in the determination, and in the event of disagreement shall be referred to the competent authority”. In the Committee’s view, any disagreement in determining minimum services should be settled by an independent body that the parties deem reliable, such as the judicial authority.

The Committee further observes that the abovementioned draft Bill proposes no amendment to sections 284–320 of the Code of Labour Procedure which cover the referral of collective disputes to compulsory arbitration. The Committee noted in an earlier observation that, according to the Government, these provisions were repealed by section 97 of the Constitution, promulgated in 1992, which provides that “the State shall facilitate conciliatory solutions to labour disputes and social dialogue. Arbitration shall be optional”. The Committee again requests the Government, in accordance with the Constitution and in order to avoid any misinterpretation, to take the necessary steps to repeal sections 284–320 of the Code of Labour Procedure.

The Committee hopes that in the near future it will be able to note progress in the legislation and requests the Government to provide information in its next report on all developments in this regard.