Observation (CEACR) - adoptée 1990, publiée 77ème session CIT (1990)

With reference to its previous comments, the Committee notes the information supplied by the Government in its reports on the provisions of the draft version of the General Labour Bill, which was published on 10 August 1989 and which has been formulated to bring the legislation respecting freedom of association and protection of the right to organise into conformity with the principles contained in the Convention. It also notes the conclusions of the Committee on Freedom of Association in Cases Nos. 1478 and 1484, approved by the Governing Body at its May-June 1989 Session.

The Committee recalls that its comments have for several years dealt with the following points:

(1) the requirement of too high a number of trade unions for the formation of a federation of public servants' (servidores publicos) unions (20) and of too high a number of federations for the formation of a confederation (10) (section 17, subsection 3);

(2) the prohibition of the re-election of the officers of the public servants' union immediately after the end of their term of office (section 16, subsection 2, of Presidential Decree No. 003-82 PCM);

(3) the prohibition of public servants' federations and confederations from forming part of organisations representing other categories of workers (section 19);

(4) the necessity of changing the requirement of over 50 per cent of the manual workers for the creation of a manual workers' union, over 50 per cent of the non-manual workers for a non-manual workers' union and over 50 per cent both of the manual and of the non-manual workers for a mixed union of manual and non-manual workers laid down by section 11 of Presidential Decree No. 009 of 3 May 1961, as amended by section 1 of Presidential Decree No. 021 of 21 December 1962;

(5) the necessity of changing the requirement of belonging to the enterprise for election to trade union office (Presidential Decree No. 001 of 15 January 1963);

(6) the necessity of amending Presidential Decree No. 009 of 1961 prohibiting trade unions from engaging in political activities as institutions (section 6).

Trade union rights of public servants (servidores publicos)

1. The Committee notes with interest that the minimum number of trade unions and federations for the formation of a higher level organisation has been reduced respectively from 20 to 10 for trade unions and from 10 to 5 for federations following the adoption of Presidential Decree No. 050-85 PCM.

2. With regard to the divergences between the national legislation and the Convention concerning the trade union rights of public servants, the Government indicates that the comments of the Committee of Experts have been submitted to the National Institute of Public Administration (INAP), which has been entrusted through multi-sectoral committees with examining this question and that the Institute's comments will be transmitted to the ILO once they have been received. The same applies to the question of the prohibition of the re-election of trade union officers immediately after the end of their term of office (section 6, subsection 2, of Presidential Decree No. 003-82 PCM). The Committee trusts that the rules governing the re-election of trade union officers will not be regulated by law but by the by-laws of trade unions.

3. The Committee notes that the Government does not provide any reply concerning the prohibition of public servants' federations and confederations from establishing and joining organisations composed of other categories of workers (section 19 of Presidential Decree No. 003-82 PCM).

The Committee once again requests the Government to indicate the measures that have been taken so that federations and confederations of public servants can freely join the federations and confederations of their choosing at the level of higher organisations (see once again paragraph 126 of the 1983 General Survey on Freedom of Association and Collective Bargaining).

Right of workers to establish unions of their own choosing

4. With regard to the high percentages of manual and non-manual workers required to form a trade union of manual workers, non-manual workers or a mixed trade union, the Committee takes due note that this provision has not been taken up in the General Labour Bill and that it will be for the workers to decide between trade union pluralism and unity.

The Committee trusts that the restrictions imposed by the legislation upon the right of workers to establish organisations of their own choosing will be lifted and it requests the Government to supply information on the progress achieved in this respect.

The right of workers to elect their representatives in full freedom

5. With regard to the necessity of belonging to the enterprise to exercise trade union office (Presidential Decree No. 001 of 15 January 1963), the Government indicates that this obligation has been eliminated from the General Labour Bill.

The Committee trusts that these new provisions will be adopted in the near future so as to eliminate any obstacle to the right of workers to elect their representatives in full freedom, in accordance with Article 3 of the Convention. The Committee requests the Government to supply information on the progress achieved in this connection.

Prohibition of trade unions from engaging in political activities

6. With regard to the prohibition of trade unions from engaging in political activities as institutions under section 6 of Presidential Decree No. 009 of 1961, the Government indicates in its reports that this prohibition applies to trade unions and not to their individual members. In the Government's opinion, the objective of trade unions is to defend the rights of the workers strictly within the field of labour; as trade union organisations, they do not have the mandate to represent workers at the political level; this does not mean that they must refrain from expressing opinions on questions concerning State policy as regards the situation, interests and rights of their members. The Government also indicates that the General Labour Bill does not propose to prohibit trade unions from undertaking political activities.

While noting these indications, with reference to Cases Nos. 1478 and 1484 examined by the Committee on Freedom of Association, the Committee draws the Government's attention to the fact that trade union organisations should have the possibility to express their views publicly on questions of general interest in so far as this involves promoting the development of the social and economic well-being of all workers. It recalls in particular that workers and their organisations should be able to show their discontent as regards economic and social questions through recourse to strike action.

The Committee therefore requests the Government to indicate whether, within the context of the current reform, it is proposed to repeal Presidential Decree No. 009 of 1961.

The Committee also once again requests the Government to supply any court decisions handed down by virtue of section 6 of Presidential Decree No. 009 of 1961 during the period covered by the report and recalls that the ILO is at its disposal for any technical assistance within the context of the current legislative reform to bring the legislation into conformity with the Convention on this point. [The Government is asked to supply full particulars to the Conference at its 77th Session.]