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

Sections 25 and 26 of the Labour Code. The Committee recalls 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 of Labour, that this decision may be appealed to the administrative tribunal, and that the criteria of representativeness are to be determined by order of the Minister of Labour, in accordance with section 26. In its previous comments, the Committee asked the Government to indicate whether these criteria of representativeness had been determined. The Committee notes the Government’s indication in its report that, in agreement with the social partners, it was agreed that the determination of the representative nature of trade union organizations would be carried out by means of trade union elections. The Committee notes the Government’s further indication that these elections should be held by the end of 2010 and that support has been requested from ILO–PAMODEC. Finally, the Government’s report indicates that the principal basic texts prepared for this purpose have been approved by the National Council for Labour and Social Legislation (CNTLS) and adopted by the Government, namely:

–      the Order determining the criteria for the representativeness of trade union organizations;

–      the Order respecting the election of staff delegates in the private and para-public sectors; and

–      the Order establishing a tripartite national unit on representativeness (responsible for supervising the elections and compiling and publishing the results).

Recalling the importance of ensuring that the representative nature of organizations is based on objective and predetermined criteria, the Committee requests the Government to provide copies of these Orders with its next report and to supply information on the outcome of the elections referred to above.

Section 60 of the Labour Code. The Committee notes that, under the terms of section 60 of the Labour Code, the dismissal of workers due to their membership or non-membership of a union shall be considered, among other criteria, as being abusive. 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 legitimate trade union activities. The Committee notes the Government’s indication in its report that section 60 of the Labour Code is not the only provision protecting workers against discriminatory measures on the grounds of their participation in legitimate trade union activities, and that it has to be read in conjunction with sections 39, 220 and 301 of the Labour Code which are intended to afford protection to workers against any discriminatory measures, including dismissal, on the grounds of their participation in trade union activities and mutual benefit societies, and particularly the exercise of the right to strike. The Committee further notes the Government’s indication in its report that these provisions apply to all enterprises, whether they are public, para-public or private, and its indication of the penalties applicable in the event of violations of the provision.