Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Mozambique (Ratification: 1996)

The Committee takes note of the Government’s report, as well as of the draft Labour Code recently presented to the General Assembly of the Republic.

The Committee noted in its previous comments that public servants do not have the right to organize. In this respect, the Committee notes the preliminary draft legislation on the exercise of trade union activities in the public administration which, in section 5, recognizes the right of public servants and state officials in the public administration to organize to defend and further their socio-occupational interests. The Committee further notes that, under the terms of section 2(1) of the draft text, the Act will cover the central institutions of the public administration, local state bodies and authorities, public institutions and other subordinate or dependent institutions. However, the Committee observes that certain of the provisions of the draft legislation raise problems of conformity with the Convention:

–           section 2(2) excludes firefighters, members of the judicial authorities and prison guards from the scope of the Act. The Committee recalls that Article 2 of the Convention provides that all workers, without distinction whatsoever, shall have the right to establish and to join organizations of their own choosing and that, in accordance with Article 9 of the Convention, only the armed forces and the police may be excluded from the right to organize;

–           section 42(2) provides that public officials have the right to strike once conciliation, mediation and arbitration machinery has been exhausted. In this respect, the Committee recalls that compulsory arbitration in the public administration may only be imposed in the case of public servants exercising authority in the name of the State;

–           section 43 provides for the possibility of imposing disciplinary, civil and criminal sanctions in cases in which the strike affects the rights and interests of third parties, when it impedes or disturbs the exercise of the right to work by officials or employees who are not on strike and when it disturbs the operation of services which are not on strike. In this respect, the Committee recalls that sanctions for strike action should be possible only where the prohibitions in question are in conformity with the principles of freedom of association. Even in such cases, both excessive recourse to the courts in labour relations and the existence of heavy sanctions for strike action may well create more problems than they resolve. Since the application of disproportionate penal sanctions does not favour the development of harmonious and stable industrial relations, if measures of imprisonment are to be imposed at all they should be justified by the seriousness of the offences committed and should be subject to regular judicial review. In any case, a right of appeal should exist in this respect (see 1994 General Survey on freedom of association and collective bargaining, paragraph 177);

–           section 46(2) provides for sentences of imprisonment and fines in cases in which a strike picket obstructs the freedom of services to operate normally. In this respect, the Committee refers to the principle set forth in the previous paragraph.

Under these conditions, the Committee hopes that the law that is adopted will be in full conformity with the Convention and requests the Government to provide information in its next report on developments relating to the draft legislation.

Finally, the Committee notes the comments made by the International Confederation of Free Trade Unions (ICFTU) referring to matters already raised by the Committee, as well as the dismissal of workers in export processing zones in reprisal for exercising the right to strike. The Committee notes that, according to the Government, the workers dismissed for exercising the right to strike in export processing zones did not respect the requirements provided by the legislation for declaration of strike and the minimum services. In this respect, the Committee recalls that dismissals of strikers on a large scale involve a serious risk of abuse and place freedom of association in grave jeopardy. The Committee notes with concern dismissals of strikers on a large scale. It therefore requests the Government to provide detailed information on the circumstances in which the strike took place, on the authorities which declared the strike illegal and the authority which authorized the dismissals.

In conclusion, the Committee notes the preliminary draft of the Labour Code of June 2006. The Committee is addressing a request directly to the Government with reference to this preliminary draft text and other matters.