Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

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

The Committee notes the comments made by the International Trade Union Confederation (ITUC) in a communication dated 24 August 2010 on the application of the Convention. The Committee requests the Government to send its observations thereon and on the ITUC’s comments of 2008 concerning serious acts of violence against striking workers in the sugar cane plantation sector.

In its previous comments, the Committee noted that a new Labour Act had been adopted (Act No. 23/2007) some provisions of which are inconsistent with the Convention, namely:

–      section 150, which allows the central body of the labour administration 45 days within which to register an employers’ or workers’ organization. The Committee pointed out that such a protracted registration procedure is a serious obstacle to the establishment of an organization, amounting to a denial of the right of workers and employers to set up organizations of their own choosing, and that this time requirement should be shortened to a reasonable length not to exceed 30 days. The Committee notes in this connection that, according to the Government, the time requirement was prescribed taking account of the country’s social and economic development and the fact that Mozambique lacks a modern and computerized communication system, which slows down the transmission of information from one region to another;

–      section 189, which allows compulsory arbitration for the essential services listed in section 205, which include the postal service, the loading and unloading of animals and perishable foodstuffs, weather monitoring and fuel supply, and also for export processing zones (section 206 and Decree No. 75/99). The Committee points out that compulsory arbitration to end collective labour disputes or strikes is acceptable only when requested by both parties to the dispute or where a strike may be restricted or prohibited, namely in the case of a dispute 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, that is, services the interruption of which would endanger the life or personal safety or public health of the whole or part of the population. In these circumstances, the Committee takes the view that any disputes arising in the above-mentioned services should not be subject to compulsory arbitration and that they could be settled under the mediation and conciliation procedures provided for by law;

–      section 207, which provides that the notice of strike must state the duration of the strike. The Committee expressed the view that workers and their organizations should be able, if they so wish, to call an indefinite strike. In this connection it notes the information from the Government to the effect that since nothing in the law imposes a time limit on strikes, this provision may be construed as allowing a strike to be unlimited in time or indefinite;

–      section 212, which allows a strike to be ended by a decision of the mediation and arbitration body. The Committee notes in this connection the Government’s specification that section 212, subsection 1, provides for other procedures for ending strikes, including agreement between by the parties concerned or a decision of the trade union organization. The Committee is of the view that such a decision should be taken only by the workers and organizations that declared the strike and not by a mediation body; and

–      section 268(3), which provides that any violation of sections 199 (freedom to work of non-strikers), 202(1) and 209(1) (minimum services), constitutes a breach of discipline for which the workers on strike are liable under both civil and penal law. The Committee points out that workers engaging in peaceful strike action should not be liable to penal sanctions and hence to any prison sentence. Such sanctions may be envisaged as regards strikes only in the event of violence against persons or property or other serious breaches of the law, and only in accordance with the provisions punishing such offences. However, even in the absence of violence, if a strike is unlawful due to breach of procedure, proportionate disciplinary sanctions may be applied against the strikers.

The Committee reminds the Government that in its previous comments it noted that the legislation was undergoing revision by a “legal reform technical unit” set up for the purpose and that some provisions of the Labour Code that are inconsistent with the Convention would be amended in due course with assistance from the ILO. The Committee accordingly requests the Government to provide detailed information in its next report on the progress made in revising the legislation, and hopes that the draft provisions will take account of the Committee’s comments on sections 189, 212 and 268(3) of the Labour Code.

Public servants. In its previous comments the Committee noted that public servants do not have the right to organize. It notes in this connection the adoption of Act No. 14/2009 of 17 March 2009 issuing the General Regulations for Civil Servants and Government Officials (EGFAE). Its notes that sections 76 and 77 provide that the establishment, merger, federation and dissolution of public servants’ unions and occupational associations and the right of public servants to strike shall be regulated by law. In these circumstances, the Committee requests the Government to indicate in its next report if such a law has been adopted and, if so, to provide a copy.