Demande directe (CEACR) - adoptée 2005, publiée 95ème session CIT (2006)

The Committee has noted the Government’s reply to its earlier comments.

Articles 1(1) and 2(1) of the Convention. 1. Freedom of career military personnel to leave their service. In its earlier comments, the Committee requested information on the application in practice of section 141 of Act No. 232, of 1959, according to which the military officer’s service does not terminate until the resignation is accepted. The Committee has noted the Government’s repeated statement in its reports that provisions governing resignation aim at ensuring the good and regular functioning of the public utilities and have nothing to do with forced labour.

While noting the Government’s detailed explanations of the principles governing the resignation of officers of the armed forces and being fully aware of the importance of ensuring the continuity of the service, the Committee observes that, under the above provisions, the person seeking to resign must continue service in the armed forces until the resignation is accepted, which means that the service is not automatically terminated upon delivery of a resignation, since the application to resign may be refused. It also notes that section 141 of Act No. 232, of 1959, does not establish the criterion used for deciding whether a resignation presented under its provisions will or will not be accepted.

Referring to paragraphs 33 and 72 of its General Survey of 1979 on the abolition of forced labour, the Committee wishes to point out that career members of the armed forces, who have voluntarily engaged in the armed forces, should not be deprived of the right to leave the service in peacetime within a reasonable period, either at specified intervals, or with previous notice. The Committee therefore again requests the Government to indicate the criteria applied in accepting or rejecting a resignation presented in conformity with section 141 referred to above, as well as the number of cases in which such resignations were refused and the grounds for refusal.

2. Freedom of public servants to leave their service. The Committee has noted the Government’s explanations concerning the application of section 99 of the Law on the Public Service, No. 48, of 1978, which governs resignation of public servants. It has noted that, under this section, a decision to accept the resignation shall be taken within 30 days after its submission; if no decision is taken, the resignation is considered as accepted, unless a request for resignation contains a condition, in which case a decision containing a reply needs to be taken. It follows from the wording of this section that a request for resignation can be either accepted or refused. The Committee refers in this connection to the explanations contained in paragraphs 67 to 73 of its General Survey of 1979 on the abolition of forced labour, where the Committee has considered that the effect of statutory provisions preventing termination of employment of indefinite duration by means of notice of reasonable length is to turn a contractual relationship based on the will of the parties into service by compulsion of law, and is thus incompatible with the Convention. The Committee therefore hopes that the necessary measures will be taken in order to bring section 99 into conformity with the Convention, e.g. by eliminating a possibility to reject a resignation after the expiration of a notice period or by limiting provisions preventing workers from leaving their employment to emergency situations. Pending the adoption of such measures, the Committee requests the Government to provide information on the application of section 99 in practice, indicating the criteria applied in accepting or rejecting a resignation, as well as the number of cases in which such resignations were refused and the grounds for refusal.

Article 25. Penal sanctions. In its earlier comments, the Committee referred to section 375 of the Penal Code, which punishes the use of violence, brutality, terror, menaces or illegal practices where they interfere with the right of any person to work or with the right to employ or refrain from employing any person whatsoever. The Committee noted the Government’s repeated statement that section 375, though general in scope, is also applicable to cases of the illegal exaction of forced labour, and requested the Government to provide information on its application in practice, in order to ascertain whether practical effect given to this section is compatible with Article 25 of the Convention.

The Committee notes that the Government’s report does not contain the information requested. It therefore asks the Government once again to supply the information on the application in practice of section 375 of the Penal Code, in order to assess its compliance with Article 25 of the Convention, which provides that "the illegal exaction of forced or compulsory labour shall be punishable as a penal offence, and it shall be an obligation of any Member ratifying this Convention to ensure that the penalties imposed by law are really adequate and are strictly enforced". In particular, the Government is requested to provide information on any legal proceedings which have been instituted under section 375 in connection with the illegal exaction of forced or compulsory labour and on any penalties imposed. The Committee hopes that such information will be supplied by the Government in its next report.