Demande directe (CEACR) - adoptée 2019, publiée 109ème session CIT (2021)

Repetition

The Committee notes with regret that the Government confines itself in its report to indicating that the Committee’s comments will be taken into account within the context of the current revision of the relevant legislation. It recalls in this regard that its comments related to the need to amend Act No. 1/015 of 29 November 2002 on the exercise of the right to organize and on the right to strike in the public service with regard to the following points:

Article 2 of the Convention. Minimum number of members required to establish a trade union. The requirement of a minimum of 50 members set out in section 8 of the Act is excessive.

Article 3. Minimum length of service for eligibility for trade union office. The requirement of a minimum length of service of three years in the occupation to be a trade union officer, as required by section 10 of the Act, is incompatible with Article 3 of the Convention (the issue of a minimum service requirement for eligibility should be left to the discretion of the organizations and their members).

Leadership conflict in a union. The Committee noted that section 7 of the Act provides that, in the event of a leadership conflict in a union, the Minister of the Public Service may refer the matter to the Administrative Chamber of the Supreme Court for settlement (the settlement of any internal conflict in a union should be left to the discretion of the union members themselves, without any intervention by the public authorities; at the very least, referral to the Administrative Chamber of the Supreme Court should be by the union members themselves).

Lawfulness of a strike. Under the terms of sections 30 and 31 of the Act, for a strike by public servants to be lawful, it has to fulfil a number of conditions, including: (i) prior notification must be given specifying the length of the strike (section 30); and (ii) it must be called by a group of public servants, whether or not they are unionized, after approval by an absolute majority of the personnel in the public service concerned (section 31). The Committee recalled that to require workers and their organizations by law to specify the length of the strike in advance, limits their right to organize their administration and activities and to formulate their programmes in full freedom. As to the approval of a strike by an absolute majority of the personnel in the public service concerned, the Committee emphasized that the ballot method, the quorum and the majority required should not be such that the exercise of the right to strike becomes unduly difficult in practice, and that if a country deems it appropriate to require a vote by workers before a strike can be held, the requirement should ensure that account is taken only of the votes cast, and that the required quorum and majority are fixed at a reasonable level (see the 2012 General Survey on the fundamental Conventions, paragraph 147).

Sympathy strikes. Section 39 of the Act provides that sympathy strikes are prohibited. However, in the view of the Committee, a general prohibition of sympathy strikes by public servants who do not exercise authority in the name of the State could lead to abuse (the Government indicated that it was its intention to confine the application of section 39 of Act No. 1/015 to public servants exercising authority in the name of the State).

Settlement of collective disputes and the procedures to be followed. According to sections 32–35 of the Act, during a strike, negotiations have to be continued between the parties or under the direction of a certified mediator chosen by agreement between the parties. In the event of disagreement as to the mediator or of the failure of the mediation, an arbitration board shall be appointed by the Minister of the Public Service at the request of one of the parties. Within four clear days of its appointment, the arbitration board shall issue an award, which has to be notified at once to the parties. Section 35 provides that, in the event of conciliation, the award shall be immediately enforceable. Where conciliation fails, the dispute shall be referred to the Administrative Court by the losing party. The Committee observes that recourse to the Administrative Court appears to result in a system of compulsory arbitration to bring an end to the dispute. The Committee recalls in this regard that compulsory arbitration is acceptable only at the request of both parties to the dispute or in cases where a strike may be restricted or prohibited, that is, in disputes in the public service involving public servants exercising authority in the name of the State or in essential services in the strict sense of the term. The Committee also recalled that public servants who do not exercise authority in the name of the State should enjoy the right to strike and that this right may only be restricted or prohibited in the following two cases: (i) where the public servants are engaged 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; and (ii) in the event of an acute national crisis.

Article 5. With reference to section 21 of the Act, which provides that central organizations, federations and confederations are regulated by the provisions of Chapter I, which addresses the establishment of first-level organizations, the Committee notes that the effect of section 21 in practice is that first-level organizations can only join central organizations or federations of organizations of public servants, and not organizations representing other workers. While first-level organizations of public servants may be restricted to this category of workers, the Committee recalls that such organizations should nevertheless be able to affiliate with federations and confederations of their own choosing in full freedom, including those which also group together organizations from the private sector.

Recalling that the above matters have been the subject of its comments for many years, the Committee notes the Government’s statement that the revision of Act No. 1/015 of 29 November 2002 is envisaged and trusts that the Government will be in a position to provide information in the very near future on the progress made in the revision process duly taking into account all of the above comments. The Committee reiterates that the technical assistance of the Office is available to the Government.