Observation (CEACR) - adoptée 1994, publiée 81ème session CIT (1994)

The Committee notes the Government's report, the information supplied by the Government representative to the Conference Committee in 1993 and the subsequent discussions in that Committee. The Committee also notes the provisions of the new Labour Code of 29 October 1993 relating to freedom of association and collective bargaining, and recalls that its previous comments referred to:

- the lack of protection provided for public servants who are not engaged in the administration of the State, public employees and workers in public enterprises against acts of anti-union discrimination;

- the lack of protection for the organizations of this category of workers against acts of interference by employers or their organizations;

- the need to guarantee them the right to bargain freely.

The Committee notes with satisfaction that the national Constitution of 1992 and the new Labour Code of October 1993 contain various provisions which improve the application of Articles 1, 2 and 4 of the Convention.

In specific terms, section 96 of the Constitution and section 317 of the Labour Code protect trade union leaders from dismissal; section 63 prohibits employers from influencing the trade union convictions of their workers (subsection (d)), from compelling workers to terminate their membership of the trade union or branch association (subsection (f)), and from using a "blacklist" against workers who resign or are dismissed with a view to preventing them from finding employment (subparagraph (g)); section 286 of the Labour Code provides protection against any act of interference; section 97 of the Constitution and sections 290(b) and 291(k) of the Labour Code recognize the right to collective bargaining of workers in both the public and private sectors; section 334 makes it compulsory for any enterprise which employs 20 or more workers to engage in collective bargaining; and section 2 of the Labour Code includes workers in state enterprises within the scope of the Code.

Nevertheless, the Committee notes that the new Labour Code does not include provisions protecting workers who are not trade union leaders against dismissal for trade union activities. Moreover, the penalty set out in section 385, which amount to a fine of a minimum of from 10 to 30 days' wages in the event of the non-observance of the provisions of the Labour Code including in case of anti-union discrimination or interference where there are no other special penalties as well as the penalty of 30 days' minimum wage for violations by the employer of the protection set out in section 393 against the dismissal of trade union leaders are not sufficiently dissuasive.

The Committee recalls that Article 1 of the Convention provides that workers shall enjoy adequate protection against acts of anti-union discrimination, both during recruitment and in the course of employment, and covers all measures of anti-union discrimination (dismissals, transfers, demotions and any other prejudicial acts), and that the effectiveness of legal provisions depends to a large extent on the way in which these provisions are applied in practice and on the penal sanctions which are established being sufficiently dissuasive (see the 1994 General Survey on Freedom of Association and Collective Bargaining, paragraphs 211 to 222).

The Committee requests the Government to take measures to adapt the legislation to the requirements of the Convention and to report any development in this respect.

The Committee notes that the Government has not replied to its comments concerning the prohibition on the establishment of associations of employers (sections 10 and 12 of the "Memoranda of agreement on labour relations and social security in the hydro-power plant "Yacireta") and it therefore once again requests the Government to determine the scope of these provisions in relation to the right to collective bargaining contained in Article 4 of the Convention.