Direct Request (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 the Draft Labour Code of June 2006 which has recently been sent to the Parliament. The Committee observes that the following provisions of this Code appear not to be in full conformity with the Convention.

–         Section 149 establishes that the public authority has 45 days to register the instrument of constitution of a trade union. Taking into account that during this period the trade union organizations do not enjoy legal personality, the Committee considers that this period should be shortened.

–         Section 189 provides for compulsory arbitration in case of essential services, following the list enumerated in section 205, which includes the postal services, petroleum sector, meteorological services and loading and unloading of cattle and perishable goods. The Committee considers that those services are not essential services in the strict sense of the term. In this respect, the Committee recalls that compulsory arbitration may only be imposed in the case of public servants exercising authority in the name of the State or in the case of essential services in the strict sense of the term, which are those the interruption of which would endanger the life, personal safety or health of the whole or part of the population.

–         Section 207 establishes that the trade unions have to communicate to the public authority the estimated duration of the strike. The Committee considers that it should also be possible for trade unions to declare a strike without a specified time limit.

–         Section 212 establishes that the Mediation and Arbitration Board can decide on the termination of the strike. Noting that this would imply interference in the decision of the workers with respect to the duration of the strike, the Committee considers that this provision should be eliminated.

–         Section 268(3) provides that any violation of sections 199 (freedom of access to the workplace), 202(1) and 209(1) final part (minimum services) constitutes a disciplinary infringement subject to penal and civil responsibility. The Committee recalls that all penalties in respect of unlawful strike actions should be proportionate to the offence or fault committed and the authorities should not have recourse to measures of imprisonment for the mere fact of organizing or participating in a peaceful strike.

In these conditions, the Committee hopes that the Labour Code to be adopted will be in full conformity with the Convention and requests the Government to keep it informed of the developments in this regard in its next report.

Moreover, the Committee requests the Government to provide information on the following questions.

–         Declaration of illegality of the strike. Section 211 refers to the effects of illegal strikes. However, the Draft Labour Code does not determine which authority declares such illegality. The Committee recalls that responsibility for declaring a strike illegal should not lie with the Government, but with an independent body, which has the confidence of the parties. In these circumstances, the Committee requests the Government to indicate the competent authority for the declaration of illegality of the strike.

–         Requisitioning of workers provided for in section 213 of the Draft Labour Code. The Committee recalls that this measure should only be possible in those cases in which the workers on strike have not respected the minimum services or in cases of acute national crisis. The Committee requests the Government to indicate the manner in which this provision is implemented.

–         Strike in export processing zones. Section 206 of the Draft Labour Code establishes that strikes in export processing zones should be carried on in accordance with the provisions of section 205 that regulate strikes in the essential services. The Committee recalls that, in general, services provided by the export processing zones are not essential in the strict sense of the term and that the establishment of minimum services in the case of strikes should only be possible in: (1) services the interruption of which would endanger the life, personal safety or health of the whole or part of the population (essential services in the strict sense of the term); (2) services which are not essential in the strict sense of the term but where the extent and duration of a strike might be such as to result in an acute national crisis endangering the normal living conditions of the population; and (3) public services of fundamental importance. In these circumstances, the Committee requests the Government to indicate which services are subject to minimum services in export processing zones.