Observation (CEACR) - adoptée 2007, publiée 97ème session CIT (2008)

The Committee notes the Government’s report as well as its reply to the comments submitted by the International Confederation of Free Trade Unions (ICFTU, now ITUC – the International Trade Union Confederation) in 2006 on the application of the Convention. It further notes the comments submitted by the ITUC in a communication of 28 August 2007, which mainly refer to matters previously raised by the Committee as well as to acts of government interference in union elections and violent intervention by security forces against trade union members participating in the elections. The Committee requests the Government to transmit its observations on the ITUC’s allegations.

The Committee recalls that for several years its comments have been referring to the discrepancies between the Convention and the national legislation – i.e. the Trade Union Act No. 35 of 1976, as amended by Act No. 12 of 1995, and the Labour Code No. 12 of 2003 – on the following points:

Article 2 of the Convention. The institutionalization of a single trade union system under Act No. 35 of 1976 (as amended by Act No. 12 of 1995), and in particular sections 7, 13, 14, 17 and 52. The Committee notes that the Government indicates that the trade union structure is one the workers themselves had chosen upon the realization that disparate trade union set-ups are ineffective and do not constitute a pressure group aimed at meeting their interests. In these circumstances the Committee once again recalls that Act No. 35, and in particular sections 7, 13, 14, 17 and 52, are at variance with Article 2 of the Convention since trade union unity, directly or indirectly imposed by law, runs counter to the standards expressly laid down in the Convention (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 91). The Committee requests the Government to amend sections 7, 13, 14, 17 and 52 of Act No. 35 of 1976 (as amended by Act No. 12 of 1995) so as to secure the right of workers to establish and join organizations of their own choosing at all levels outside the existing trade union structure.

Article 3. The control granted by law to higher level trade union organizations, and particularly the Confederation of Trade Unions, over the nomination and election procedures to the executive committees of trade unions (sections 41, 42 and 43 of Act No. 35, as amended by Act No. 12). The Committee recalls that procedures for the nomination and election to trade union office should be fixed by the rules of the organization concerned, without any interference by public authorities or by the single trade union central organization designated by the law. Legislative provisions can require, in a manner compatible with the Convention, that organizations specify in their statutes and rules the procedure for appointing their executive bodies, and rules ensuring the proper conduct of the election process. Furthermore, if any supervision is deemed necessary, it should be exercised by a judicial authority (see General Survey, op. cit., paragraphs 114 and 115). Finally, the Committee would like to point out that any removal or suspension of executive bodies which is not the result of an internal decision of the trade union, a vote by members or normal judicial proceedings, seriously interferes in the exercise of the trade union office to which officers should be freely elected by members of their trade union. Legislative provisions which permit the appointment of temporary administrators by the single central organization are incompatible with the Convention. Measures of this kind should only be possible through judicial proceedings (see General Survey, op. cit., paragraphs 122 and 123). The Committee thus expresses the firm hope that the Government will take the necessary measures to amend the legislation so as to ensure that each workers’ organization is able to elect its representatives in full freedom in accordance with Article 3 of the Convention. It requests the Government to keep it informed of the measures taken or envisaged in this regard.

The control exercised by the Confederation of Trade Unions over the financial management of trade unions (sections 62 and 65 of Act No. 35, as amended by Act No. 12). The Committee notes the Government’s statement that the funding structure in place does not contravene any international convention or law, and is the main source of funding for trade unions at the international level. The Committee nevertheless recalls that it had previously pointed out that workers’ organizations should have the right to organize their administration without any interference from public authorities, which means, among other things, that they should enjoy autonomy and financial independence. The control granted by the law to a single central organization constitutes, as such, interference with the free functioning of workers’ organizations, contrary to Article 3. The Committee therefore once again requests the Government to take the necessary measures to ensure that section 62, which provides that the Confederation shall determine the financial rules of trade unions and obliges lower level unions to pay a certain percentage of their income to higher level organizations, and section 65, which provides that the Confederation shall control all trade union activities, are amended so that workers’ organizations have the right to organize their administration, including their financial activities, without interference, in accordance with Article 3 of the Convention.

Right to strike. The Committee notes the Government’s statement that strikes are prohibited at strategic undertakings, as a legitimate and necessary safeguard to protect public safety and security; the Government adds that the restrictions placed by the law on the holding of strikes are measures similarly aimed at ensuring public security and the country’s economic welfare. In this respect, the Committee recalls that the right to strike may be restricted or prohibited in the public service only for public servants exercising authority in the name of the State, or in essential services in the strict sense of the term (that is, services the interruption of which would endanger the life, personal safety or health of the whole or part of the population). In these circumstances, the Committee once again requests the Government to take the necessary measures to amend the legislation concerning:

–      the removal from office of the executive committee of a trade union which has provoked work stoppages or absenteeism in a public service or community services (section 70(2)(b) of Act No. 35 of 1976);

–      the requirement for the prior approval of the Confederation of Trade Unions for the organization of strike action (section 14(i) of the same Act);

–      restrictions on the right to strike and recourse to compulsory arbitration in services which are not essential in the strict sense of the term (sections 179, 187, 193 and 194 of the Labour Code); and

–      penalties for breaches of section 194 of the Labour Code (section 69(9) of the Code).

The Committee is also addressing a request directly to the Government.