Direct Request (CEACR) - adopted 2018, published 108th ILC session (2019)

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

Act on the right to organize in the public services (Act No. 18/2014)

Article 2 of the Convention. Right of workers, without distinction whatsoever, to establish and to join organizations of their own choosing without previous authorization. In its previous comments, the Committee had noted that section 4 of the Act on the right to organize in the public service (Act No. 18/2014) provides that the exercise of freedom of association by 16 categories of public servants (including officers of the police, the armed forces, prison services, migration services, public relief services, magistrates and various categories of public servants exercising managerial functions or in positions of trust) will be regulated by specific legislation. The Committee had also noted that section 57 of the Act provides that all public servants and employees may, if they so wish, establish and join trade union organizations, with the exception of the public servants referred to in subsections (d) and (e) of section 4, which relate to public servants in positions of trust, diplomatic posts and officers of paramilitary forces, including forest guards and inspectors. The Committee recalled that, under the terms of Article 2 of the Convention, the right to establish and join occupational organizations shall be guaranteed for all employees in the public service and that, under Article 9(1), only the armed forces and the police may be excluded from the guarantees of the Convention. The Committee requests the Government to amend section 57 of the Act on the right to organize in the public service so as to ensure the right of workers, without distinction whatsoever, to establish and join organizations of their own choosing. It requests the Government to inform of all measures taken in this regard and to provide any relevant information concerning the adoption of the specific legislation referred to in section 4 of that Act.

Article 3. Election of trade union representatives in full freedom. The Committee previously noted that section 18(2) of the Act on the right to organize in the public service provides that only members who, in accordance with the law, have the status of public servants may be designated trade union representatives. The Committee had also noted that section 3 of the Act stipulates that its scope of application also includes public servants and employees who are retired, and requested the Government to indicate whether section 18(2) allows retired public servants to be appointed as trade union representatives. Should the Act not allow retired officials to be elected, the Committee requested the Government to amend this provision. The Committee recalls that the limitation of access to the function of trade union representation to one profession or, as in the present case, to a specific professional status, may impair the right of organizations, as recognized in Article 3 of the Convention, to elect their representatives in full freedom. In the absence of any new information in this regard, the Committee reiterates its previous request.

Article 3. Right of trade union organizations to formulate their programmes in full freedom. In its previous comments, the Committee had noted that section 7(3) of the Act on the right to organize in the public service provides that the exercise of the right to strike by public servants and employees shall be regulated by specific legislation. The Committee once again requests the Government to provide full information on the adoption of the legislation in question. While awaiting the adoption of this legislation, the Committee requests the Government to indicate the rules which currently govern the exercise of the right to strike by public servants and employees.

Article 4. Dissolution of trade unions by judicial authority. The Committee had previously noted that section 17(c) of the Act on the right to organize in the public service provides that a trade union may be dissolved by judicial decision further to an action by the Attorney General, not only when it is found that the true objectives of the organization are unlawful, but also when they are contrary to public morals or very different from the aims set out in its statutes. The Committee had considered that the last two grounds enumerated in section 17(c) were vague in nature and could give rise to decisions liable to impair the guarantees set out in the Convention and therefore requested the Government to amend this provision. In view of the very serious consequences on the exercise of freedom of association of a decision to proceed to the dissolution of a trade union, the Committee emphasizes once again the importance of having the grounds justifying the judicial dissolution of trade unions set out precisely in the legislation and also confined to serious violations of the legal provisions in force. Noting with regret the absence of any new developments in this regard, the Committee reiterates its previous requests and expects that all necessary measures will be taken by the Government, in full consultations with social partners, so as to amend section 17(c) of the Act on the right to organize in the public sector as indicated.

Labour Act (Act No. 23/2007)

Article 3. Right of trade unions to formulate their programmes. The Committee had previously requested the Government to take the necessary measures to amend the following provisions of the Labour Act:

• -section 189, which provides for compulsory arbitration for the essential services listed in section 205, which include the postal services, the loading and unloading of animals and perishable food stuffs, fuel supply, private security services and export processing zones (section 206 and Decree No. 75/99). The Committee recalls that compulsory arbitration to end collective labour disputes or strikes is acceptable only in cases where the strike may be restricted or prohibited, namely in the case of a dispute 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, personal safety or health of the whole or part of the population) or in situations of acute national crisis. Under these conditions, the Committee considered that disputes which may arise in services enumerated in the Act should not be subject to compulsory arbitration and could be resolved within the framework of the mediation and conciliation procedures established by law;
• -section 207, which provides that the strike notice shall indicate the duration of the strike. In this regard, the Committee noted the Government’s indication that this provision may be construed as allowing a strike of limited or unlimited duration, as nothing in the law imposes a time limit on strikes. The Committee considered in this regard that the wording of section 207 should be amended to provide explicitly for the right of workers and their organizations to call a strike of unlimited duration; and finally
• -section 212, under which a strike may be ended by a decision of the mediation and arbitration body. In this regard, the Committee previously noted the Government’s indication that section 212(1) provides for other procedures for ending strikes, including agreement between the parties concerned or a decision by a trade union organization. The Committee once again recalls its view that a decision to put an end to industrial action must be taken by the workers and organizations which called the strike, and not by a mediation body.

While noting the Government’s indication that it is in the process of reviewing the Labour Act and that all observations and comments made by the Committee will be taken into consideration for action, the Committee expects that the Government will take the necessary measures, in full consultation with social partners, to bring all the abovementioned provisions into conformity with the Convention. It requests the Government to provide information on any progress achieved in this regard.

The Committee recalls that the Government can avail itself of the technical assistance of the ILO.