Demande directe (CEACR) - adoptée 2010, publiée 100ème session CIT (2011)

Article 2 of the Convention. Trade union rights of minors. The Committee noted previously that, under section 12 of the Labour Code (Act No. 2006–010 of 13 December 2006), minors aged over 16 years may join trade unions, subject to authorization from their father, mother or guardian. The Committee notes the Government’s indication in its report that section 12 of the Labour Code clearly recognizes the principle of freedom of association for minors aged 16 years, but that all rights may be subject to a restriction on condition that such a restriction is intended for the protection of a legitimate interest and is proportional to the objective sought. The Committee notes that the Government bases the need for such parental authorization on the importance of protecting parents against any damages that their child may cause (for example, in the context of a strike) and of protecting the child from the influence of other workers. The Committee recalls that Article 2 of the Convention guarantees all workers, without distinction whatsoever, the right to establish and join organizations and that it does not authorize any distinction on such grounds as age. The Committee therefore considers that section 12 of the Labour Code is not in conformity with Article 2 of the Convention. The Committee reiterates its request to the Government to take the necessary measures to ensure that minors who have reached the statutory minimum age for admission to employment (15 years of age under section 150 of the Labour Code), either as workers or apprentices, can exercise their trade union rights without the need for authorization from their parents or guardian.

Article 3. Right to strike. In its previous direct request, the Committee observed that, under section 273 of the Labour Code, if a strike affects an essential service, the competent authority may requisition those workers engaged in jobs that are vital to the safety of persons and goods. The Committee noted that the list of jobs so established is determined by decree of the Council of Ministers and that, under section 274 of the Labour Code, the list of enterprises providing an essential service within the meaning of section 273 is established by decree of the Council of Ministers. The Committee requested the Government to indicate whether the decrees provided for under sections 273 and 274 of the Labour Code had been adopted. The Committee notes the Government’s indication in its report that the decrees envisaged in sections 273 and 274 of the Labour Code were submitted to and approved by the National Council for Labour and Social Legislation in November 2009, but that their adoption has been delayed by the holding of presidential elections. The Committee requests the Government to provide copies of these decrees once they have been adopted.

In its previous direct request, the Committee also noted that, under section 275 of the Labour Code, during a strike, the parties are under the obligation to continue negotiations under the authority of a person appointed by the Minister of Labour and that the same provision establishes as an exception to this obligation cases in which the parties agree to have recourse to a mediator. The Committee notes the Government’s indication in its report that the spirit of the text is not to impose mediation upon the parties, but instead to encourage them not to break off negotiations, even during the strike, and that the appointment of a mediator by the Minister is guided by the concern to allow negotiations to be held under the guidance of a person with proven expertise and a high moral standing. The Committee considers that it is preferable, with a view to obtaining and maintaining the confidence of the parties to a dispute, to allow them to choose the procedures for the settlement of the dispute themselves (including the choice of having recourse to mediation). The Committee wishes to draw the Government’s attention to the fact that such a provision, which imposes negotiation through the intervention of the labour authorities, in cases where the parties do not reach agreement on a mediator of their own choice, runs the risk of prejudicing the right of trade union organizations, in accordance with Article 3 of the Convention, to organize their activities and to formulate their programmes without interference by the public authorities. The Committee therefore reiterates its request to the Government to take the necessary measures to amend section 275 of the Labour Code in this sense.