Solicitud directa (CEACR) - Adopción: 1992, Publicación: 79ª reunión CIT (1992)

1. In previous comments, the Committee has referred to the conditions imposed by Legislative Decree No. 150 of 17 August 1981 governing entitlement to unemployment benefit (sections 43, 44(d), 46, 62 and 63(e)).

Under the above Legislative Decree the right to this benefit for workers who have lost their employment for reasons beyond their own control is made conditional both on the payment of contributions for 52 weeks or 12 months during the two years preceding the date of loss of employment (section 43(b)) and on the inscription of the unemployed persons in the register of unemployed persons that must be kept by every insurance institution (section 43(c)) and also in the register of unemployed persons that must be kept by every municipality with a view to their assignment to relief works for the community (section 43(d)). Under section 44(d) the right to unemployment benefit is lost if the unemployed person refuses to carry out the relief work for the community provided for by section 43(d).

The Committee observed that the loss of the right to benefit as a result of the unemployed person's refusal to carry out the relief work assigned by the municipality was equivalent to a penalty within the meaning of the Convention; it asked the Government to revise the legislation in question in the light of the Convention, and to take the necessary measures to ensure compliance with the Convention in that respect.

The Committee noted that in its report the Government stated that it would consider the desirability of an express waiver of Legislative Decree No. 150 of 1981. It further explained that the rule in question was still in force but was not applied in practice.

The Committee asks the Government to take the necessary measures to bring the national law into formal conformity with the Convention through an express waiver of Legislative Decree No. 150 of 17 August 1981 so that positive law may reflect what the Government describes as existing practice.

2. In its previous direct request the Committee referred to the provisions relating to termination of the professional career of members of the armed forces laid down in Legislative Decree No. 1 of 1968 entitled "Conditions of Service of Members of the Armed Forces".

The Committee notes (having regard to the amendments introduced by Act No. 18948 of 22 February 1990) that the provisions concerning termination of the professional career (sections 52 to 60 of Act No. 18948) include the procedures of temporary or permanent retirement and resignation. The conditions for permanent retirement are, in addition to sickness and disciplinary measures, a voluntary petition lodged after the completion of 30 years of service qualifying for retirement. Resignation (section 58) gives rise, when accepted, to temporary retirement on pension.

The Committee takes note of the Government's statement in its report that personnel entering the armed forces voluntarily accept the regulations stated above and that consequently their resignation, like resignation under civil law (Act No. 18834), must be accepted beforehand by the authority (Act No. 18948) and that, for that to happen, all the conditions qualifying the person concerned for retirement must be met.

The Committee draws the Government's attention to the fact that provisions which have the effect of converting a contractual relationship based on agreement between the parties into a service imposed by law are incompatible with the Convention and that, with a view to ensuring compliance with the Convention, it is necessary to secure to the personnel of the armed forces freedom to resign from their employment on their own initiative within a reasonable period, either at specified intervals or by giving notice.

The Committee requests the Government to inform it of the conditions qualifying an applicant for the acceptance of his resignation and of the time-limits set for the authority responsible for taking the decision concerning such resignation.

3. In previous comments the Committee referred to sections 305 and 306 of the Penal Code under of which "all persons who have no fixed address or means of subsistence, who do not habitually practise any lawful profession, job or occupation and who have the capacity to work are vagrants" (section 305). Under section 306, vagrants are liable to sentences of ordinary imprisonment in its mildest form and are placed under the supervision of the authorities.

The Committee takes note of the information given by the Government in its report to the effect that the offence of vagrancy needs to be maintained in order to assist in bringing crime under better control and as an aid in preventing many offences.

The Committee would refer to paragraphs 45 to 48 of its General Survey of 1979 on the Abolition of Forced Labour, in which it stated that provisions on vagrancy that defined it so extensively as to become a means of direct or indirect compulsion to work should be amended so that only persons who, in addition to habitually refusing to work and being without means of subsistence, disturbed law and order, were liable to a penalty.

The Committee asks the Government to examine sections 305 and 306 of the Penal Code and to supply information concerning the measures taken or contemplated to ensure compliance with the Convention on this point.