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

The Committee notes the information provided by the Government in reply to its earlier comments, including the information on judicial decisions supplied under Article 11 of the Convention. It also notes the new observations made in September 1993 by the Trade Union Federation of Workers' Commissions (CC.00.) and in October 1993 by the General Union of Workers (UGT), annexed to the Government's report.

Article 2, paragraphs 2 and 3. The UGT expresses once again its concern about the vast increase in the number of temporary contracts of employment in the country and about the lack of guarantees of stability in employment for temporary workers. The Union considers it necessary to eliminate fraud in temporary labour contracting and to modify the existing rules which, in their view, make possible unjustified recourse to contracts of employment for a specified period of time. The Government indicates that a global estimate of the impact of Law No. 2 of 1992 has not been made but points out that in the course of preparatory work for the proposed Social Pact there was a will to modify the rules governing fixed-term contracts in the framework of the flexibility and employment policies. The Committee, which refers also to those policies in its comments on Convention No. 122, hopes that adequate safeguards will be provided in the near future against recourse to such contracts of employment, the aim of which is to avoid the protection resulting from the Convention, as required by this Article. It would suggest reference in this connection to Paragraph 3 of the Termination of Employment Recommendation, 1982 (No. 166). The Committee asks the Government to keep the ILO informed of the developments in this sphere. Please continue to provide information on the judicial decisions concerning the protection of workers who hold temporary contracts of employment, as well as on the intervention of the labour inspectors in matters involving fraud and abuses in fixed-term contracting.

Article 7. With reference to its earlier comments concerning the procedure prior to or at the time of termination, the Committee notes that both the CC.OO. and the UGT confirm their views on the points previously raised under this Article. The CC.OO. states that the safeguard provided for in this Article is available in the national legislation only for a member of a works committee or a staff representative (section 68(a) of the Worker's Charter of 1980). The UGT considers it necessary to extend the scope of this provision of the legislation to cover all the workers without any exception. Both organizations express the opinion that the provision of section 3 of Act No. 2/1991 which provides that the worker may request the attendance of an official representative of the workers at the time of signing the receipt for the release presented to him by the employer when serving notice of the termination of a contract of employment, does not meet the requirements of this Article. According to the CC.OO., the purpose of the above-mentioned Act No. 2/1991 is to prevent abuses in temporary labour contracting, and section 3 of the Act does not refer to cases of termination of employment for reasons related to worker's conduct or performance.

The Government reiterates its previous statement concerning the moment when the employent is considered to be terminated according to the national legislation and practice, as well as the procedure available to a worker to defend himself against the allegations made, with reference to sections 54 to 56 and 59(3) of the Worker's Charter and to sections 103 to 113 of the Labour Procedure Act. In regard to the provision of section 3 of Act No. 2/1991, the Government states that this section is applicable in all cases of termination of any type of individual contract of employment, including cases of termination for reasons related to the worker's conduct or performance.

While noting this information, the Committee would like to draw the Government's attention once again to the provision of this Article of the Convention, according to which "the employment of a worker shall not be terminated for reasons related to the worker's conduct or performance before he is provided an opportunity to defend himself against the allegations made". The Committee observes that the above-mentioned provisions of the national legislation are not in conformity with the Convention on this point, inasmuch as the safeguard provided by this Article must be available to all workers irrespective in particular of the referral of the matter to the competent court and of the procedure of signing the receipt for the release presented by the employer when serving notice of the termination of a contract of employment. The Committee hopes that appropriate measures will be taken by the Government in order to give full effect to this Article of the Convention.