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

In its previous comments, the Committee had noted that the ILO technical assistance mission of April 2009, which had been requested by the Conference Committee on the Application of Standards, had given rise to a Tripartite Memorandum of Understanding by which the social partners and the Government had agreed to participate in a tripartite symposium to be organized by the ILO to discuss the challenges faced by the country in the application of the Convention, to review the experiences of other member States and to formulate proposals on the measures necessary to give effect to the Committee’s comments. The Committee welcomes the fact that a Tripartite Workshop on Social Dialogue, Freedom of Association and Development took place on 26 April 2010, with ILO participation, to address a number of divergences between the legislation, the practice and the Convention. The Committee hopes that the holding of this seminar will constitute an important first step in addressing this long-standing matter.

The Committee notes the discussion during the Conference Committee on the Application of Standards in June 2010 on the application of the Convention. The Committee notes in particular the Government’s indications during that meeting that it planned to engage in a review of the legislation with the assistance of the ILO in order to ensure full conformity with the Convention. The Committee also notes that the Conference Committee expressed the firm expectation that the Government would elaborate a fast-track programme for ensuring that tangible steps would be taken in the very near future to amend the legislation in order to ensure that all workers may freely form and join the organization of their own choosing and that all forms of Government interference in the activities of workers’ organizations, including through legislative reference to the authority of a single trade union in this regard, are eliminated. Finally, the Committee notes that the Conference Committee requested the Government to provide the necessary proposals for amendments, especially to the Trade Union Act, by the end of the year to the ILO for advice on their conformity with the Convention. The Committee regrets that the Government has not yet transmitted any draft amendments in this regard.

The Committee recalls that for several years it has been commenting upon the discrepancies between the Convention and the national legislation, namely Trade Union Act No. 35 of 1976, as amended by Act No. 12 of 1995, and Labour Code No. 12 of 2003, with regard to the following points:

–      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 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, under the terms of sections 41, 42 and 43 of Act No. 35 (as amended by Act No. 12);

–      the control exercised by the Confederation of Trade Unions over the financial management of trade unions, by virtue of sections 62 and 65 of Act No. 35 (as amended by Act No. 12);

–      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 of the prior approval of the Confederation of Trade Unions for the organization of strike action, under 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 notes that the Government indicates in its report that Order No. 69 of 2010 has been issued by the Minister of Manpower and Migration on the establishment of a preparatory technical committee composed of legal experts to review Labour Code No. 12 of 2003 and Trade Unions Act No. 35 of 1976, as amended to date, to ensure their conformity with international labour standards. The Committee further notes that pursuant to Order No. 69, the legal experts shall present a report by the end of the year, which will then be submitted for discussion to a tripartite meeting in order to agree on the final versions of the two bills. The Committee requests the Government to take the necessary measures to ensure that during the review process, due account will be taken of the Committee’s comments on the abovementioned issues and trusts that the proposed amendments will be provided to the ILO in the near future for advice on their conformity with the Convention.

The Committee requests the Government to provide information in its next report on the progress made on these long-outstanding matters.

Finally, and as specifically requested by the Conference Committee at its meeting in June 2010, the Committee regrets that the Government has still not provided its observations on the 2009 comments submitted by the ITUC concerning the violent repression in April 2008, by the police, of a workers’ demonstration in the town of Mahalla, resulting in the death of six workers and the detention of 500 people, including three trade unionists and requests it to do so with its next report.

The Committee is raising other points in a request addressed directly to the Government.