Demande directe (CEACR) - adoptée 2021, publiée 110ème session CIT (2022)

Repetition

Article 2(2) and (3) of the Convention. Workers engaged under a contract of employment for a specified period of time or a specified task. In its previous comments, the Committee requested the Government to indicate how effect is given to Article 2(3) of the Convention concerning adequate safeguards against recourse to contracts of employment for a specified period of time or a specified task, the aim of which is to avoid protection afforded by the Convention. Pursuant to sections 9 and 10 of the Labour Proclamation, that all employment contracts that are not listed in section 10(1) are deemed to be for an indefinite period, the Government reiterates once again that adequate safeguards are provided in the Labour Proclamation against recourse to contracts of employment for a specified period of time or a specific task. It adds that section 14(1)(c) of the Labour Proclamation provides that it is unlawful for an employer to terminate a contract of employment contrary to the provisions of the Proclamation. Moreover, section 24(1) of the Labour Proclamation provides that a contract of employment for a definite period or for piecework may not be terminated unless the fixed period expires or the work is completed. In addition, section 43(4)(b) of the Labour Proclamation provides for compensation to be paid in the case of an unlawful termination of a contract of employment for a definite period of time or for piecework. The Committee recalls that Article 2(3) of the Convention calls for adequate safeguards to be provided against recourse to contracts of employment for a specified period of time the aim of which is to avoid the protection resulting from the Convention. Where contracts of employment for a specified period of time are renewed on one or more occasions, provision may be made for the contract to be deemed one of indefinite duration (Paragraph 3(2), Termination of Employment Recommendation, 1982 (No. 166)). Noting that the Labour Proclamation does not appear to limit the number of times that a contract of employment for a specified duration may be renewed, the Committee requests the Government to provide information on any measures taken or envisaged to limit recourse to successive fixed-term contracts in order to give full effect to Article 2(3) of the Convention.

Article 2(4). Excluded categories of workers. The Committee previously noted that section 3(2) of the Labour Proclamation, as amended by Proclamation No. 494/2006, excludes certain categories of workers from the application of the Convention whether because they are covered by specialized legislation, such as the Federal Civil Servants Proclamation No. 515/2007 which applies to civil servants, or because their status is intended to be adequately addressed through regulations as stipulated in section 3(3) of the Proclamation. The Government reiterates that due consideration will be given to the excluded categories of workers by specialized legislation or regulations after the completion of an ongoing study. The Committee refers to its previous comments and once again requests the Government to provide information on the specialized legislation or regulations providing protection at least equivalent to that afforded under the Convention to the excluded categories of workers.

Article 7. Procedure prior to termination of employment. In its reply to the Committee’s comments, the Government shared the Committee’s concern that the Federal Civil Servants Proclamation does not explicitly provide civil servants with the right to defend themselves prior to termination of employment. It adds, however, that in practice there are ways to defend one’s status. In public service institutions, a worker can discuss his/her general performance with his/her supervisor, prior to reaching a decision on termination. The Government adds that the Business Process Re-engineering programme implemented a system of continuous performance evaluation in the civil service with full participation of the worker. Nevertheless, the Government is of the view that the right to defend oneself before termination of employment should be provided by law, and it therefore commits to considering this issue in the context of the ongoing civil service reforms. The Committee requests the Government to provide information on any developments in relation to the ongoing civil service reform relevant to the principles of the Convention. The Committee trusts that the Government will take the necessary measures to bring its legislation into full conformity with the Convention, and requests the Government to provide copies of any relevant legislative texts as soon as they become available.

Article 12. Severance allowance. The Government indicates that it is unable to provide examples of relevant judicial decisions involving the payment of a severance allowance due to the lack of an organized data management system. The Committee invites the Government to consider availing itself of the technical assistance of the Office in this regard. The Committee once again requests the Government to provide examples of judicial decisions which refer to the payment of a severance allowance or other information on the manner in which Article 12 is applied in practice.

Articles 13 and 14. Terminations of employment for economic, technological, structural or similar reasons. In reply to the Committee’s previous comments, the Government undertakes to provide in its next report an English version of the Directive to determine the reduction of workers, 2010, as well as information on the application of the Directive in practice. The Committee therefore once again requests the Government to provide an English version of the Directive to determine the reduction of workers, 2010, and information on cases in which the Directive was applied in practice.

Application of the Convention. The Committee notes that no information was provided on the application of the Convention in practice. The Committee therefore reiterates its request that the Government provide information in its next report on the practical application of the Convention, including, for example, available statistics on the activities of the bodies of appeal (such as the number of appeals against unjustified termination, the outcome of such appeals, the nature of the remedy awarded and the average time taken for an appeal to be decided) and on the number of terminations for economic or similar reasons in the country. It also once again requests the Government to provide copies of relevant judicial decisions involving questions of principle relating to the application of the Convention, including relevant decisions concerning valid reasons for termination and terminations of contract in which the worker was not afforded the opportunity of defence, as well as cases involving section 138(1) of the Labour Proclamation which refer to the burden of proof.