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

Articles 1 and 2 of the Convention. Protection against acts of anti-union discrimination and interference. The Committee notes the comments of 24 August 2010 by the International Trade Union Confederation (ITUC) referring to anti-union practices in various enterprises or public institutions in the country. The Committee asks the Government to send its observations thereon.

The Committee observes that in its report (identical to the report of 2009), the Government makes no reference to the comments the Committee has been making for many years on the inconsistency of the legislation with the provisions of the Convention, and that in particular it makes no reference to the stage reached by the Bill (for which the ILO provided technical input) to amend various sections of the Labour Code in conformity with the Committee’s observations. In these circumstances, the Committee repeats its previous comments:

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); and

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

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 963).

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). Although, as the Government points out, the law prohibits acts of interference, the Committee recalls that under the Convention, workers’ and employers’ organizations shall enjoy adequate protection against any acts of anti-union discrimination and interference, and 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 again 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. In this connection, the Committee requests the Government to report on the status of the reform and to provide a copy of the final text as soon as it is promulgated.

Article 6. Public officials not engaged in the administration of the State. The Committee recalls that in its previous observation it expressed the view that sections 49 and 124 of the Public Service Act afford adequate protection against the dismissal of trade union officers within the meaning of Article 1 of the Convention, but do not cover protection against dismissal and other prejudicial measures against union members because of their membership or legitimate union activities. The Committee requests the Government to take the necessary measures to establish in the legislation adequate protection against acts of anti-union discrimination against civil servants and public employees, including those who are not trade union leaders, and also sufficiently dissuasive sanctions for those who commit violations.

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 again requests the Government to provide information in its next report on any developments in this respect.