Observation (CEACR) - adoptée 1995, publiée 82ème session CIT (1995)

The Committee notes the Government's report and the information noted by the Committee on Freedom of Association in Cases Nos. 1648, 1650 and 1731 (294th Report, paragraphs 22 and 27, approved by the Governing Body at its 260th Session, June 1994).

The Committee recalls that its previous comments referred to various provisions of the Industrial Relations Act of 1992 and its Regulations, namely:

-- denial of trade union membership during the work probation period (section 12(c));

-- the requirement of a high number of workers (100) to form trade unions by branch of activity, occupation or for various occupations (section 14);

-- the requirement that, in order to be eligible for trade union office (section 24), workers must be active members of the union (section 24(b)) and must have been in the service of the enterprise for at least one year (section 24(c));

-- the ban placed on trade unions from engaging in political activities (section 11(a));

-- the excessive restrictions on the right to strike, in particular sections 73(a) and (b), 67 and 83(g) and (j);

-- the obligation placed upon trade unions to compile the reports which may be requested from them by the labour authorities (section 10(f));

-- the power of the labour authority to cancel the registration of a union (section 20 of the Act), and the requirement that the union must wait six months after the cause of the cancellation has been remedied before re-applying for registration (section 24 of the Regulations); and

-- the prohibition placed on public servants' federations and confederations from affiliating with organizations that represent other categories of workers (section 19 of Presidential Decree No. 003-82-PCM).

The Committee notes with interest, as does the Committee on Freedom of Association, that the Government intends to submit to the Commission responsible for formulating the preliminary draft text of the General Labour Act, amendments to sections 14 and 10 to reduce by 50 per cent the minimum number of 100 workers required to establish trade unions other than at the enterprise level and to eliminate the obligation for trade unions to compile any reports which might be requested by the labour authority. It also notes with interest that the requirements set out in section 24 respecting the need to be an active member of the trade union (section 24(b)) and to have been in the service of the enterprise for more than one year (section 24(c)) in order to hold trade union office would no longer remain in force.

The Committee takes due note of the Government's comments concerning the ban on trade unions from engaging in issues of party politics (section 11(a)) to the effect that trade unions are under no prohibition from expressing their points of view as regards the social and economic policy of the Government and that, with respect to section 20, the definitive cancellation of the registration of a trade union is only possible by a decision of the judicial authority. The Committee requests the Government to supply information on the manner in which these provisions are applied in practice.

With regard to the denial of the right to trade union membership for workers during their probation period (section 12(c)), the Committee notes the Government's comments that the above section is designed to establish a degree of permanency in trade union organizations and to avoid disputes concerning the protection against anti-union discrimination (fuero sindical). In this regard, the Committee once again reminds the Government that a limitation of this nature is contrary to Article 2 of the Convention, since it prevents this category of workers from joining trade union organizations of their own choosing.

With regard to the restrictions on the right to strike (section 73), under which a strike has to be in defence of occupational rights and interests (section 73(a)) and the requirement that the decision to call a strike has to be taken by more than half of all the workers concerned (section 73(b)), the Committee notes the Government's comments to the effect that, on the one hand, permitting strikes to resolve economic and social policy issues would imply a distortion of the fundamental purpose of the right to strike and, on the other hand, the above section contains the substantive and formal requirements needed to guarantee that the right to strike is exercised respecting the wishes of the majority of the workers.

The Committee recalls as regards section 73(a) that although strikes that are purely political in character do not fall within the scope of the Convention, nevertheless "organizations responsible for defending workers' socio-economic and occupational interests should, in principle, be able to use strike action to support their position in the search for solutions to problems posed by major social and economic policy trends which have a direct impact on their members and on workers in general, in particular as regards employment, social protection and the standard of living" (see 1994 General Survey on Freedom of Association and Collective Bargaining, paragraph 165). With regard to section 73(b), the Committee considers the requirement could render it difficult to call a strike, particularly in large enterprises. In the Committee's opinion, the legislation should ensure that account is taken only of the votes cast, and that the required quorum and majority for calling a strike are fixed at a reasonable level (see 1994 General Survey on Freedom of Association and Collective Bargaining, paragraph 170).

With regard to the imposition of compulsory arbitration in essential public services (sections 67 and 83(g) and (j)), the Committee recalls its opinion that such arbitration should only be imposed in essential services in the strict sense of the term, namely those services the interruption of which would endanger the life, personal safety or health of the whole or part of the population (see 1994 General Survey on Freedom of Association and Collective Bargaining, paragraph 159).

With regard to the prohibition placed upon public servants' federations and confederations from affiliating with organizations that represent other categories of workers, the Committee notes the Government's comments to the effect that there are specific mechanisms for the resolution of labour disputes in the public sector. Nevertheless, the Committee once again points out that, although first-level organizations of public servants and employees may be restricted to this category of workers, such organizations should, however, be free to join federations and confederations of their choosing, including those which also group together organizations from the private sector (see General Survey, op. cit., paragraph 193).

Although the Committee notes with interest that, in accordance with the Government's statement and taking into account the recommendations of the Committee on Freedom of Association, the Government will submit to the Commission responsible for formulating the preliminary draft text of the General Labour Act various amendments designed to improve the provisions respecting freedom of association, it requests the Government when submitting these amendments to take into account all the comments of the Committee with a view to: permitting workers undergoing a period of probation to join organizations of their own choosing; reducing the minimum number of workers required in order to form trade unions by branch of activity, occupation or for various occupations; enabling workers to elect their leaders in full freedom; reducing the excessive restrictions on the exercise of the right to strike; and lifting the prohibition placed on first-level federations of public servants from affiliating with confederations of their own choosing.

The Committee requests the Government to supply information on the measures adopted in this respect in its next report.

Furthermore, the Committee is addressing a request directly to the Government.