Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Comoros (Ratification: 1978)

The Committee notes that the Government’s report has not been received. It hopes that the next report will contain full information on the matters raised in its previous comments.

Repetition

The Committee notes the observations of the Workers Confederation of Comoros (CTC), received on 1 August 2017, which refer in particular to the kidnapping, by the police, of the Secretary-General of the Federation of Education Trade Unions from his home, after a strike in response to the non-compliance with an agreement concluded between the Government and the Federation. The Committee requests the Government to provide its comments in this respect.

The Committee notes the adoption of the Act of 28 June 2012 repealing, amending and supplementing certain provisions of Act No. 84-108/PR issuing the Labour Code, and notes Act No. 04-006/AU of 10 November 2004 establishing the general regulations of public servants of the Union of the Comoros.

Article 2 of the Convention. Right of workers and employers, without distinction whatsoever, to establish organizations. The Committee notes that persons appointed to a permanent position in the public administration are excluded from the scope of the Labour Code. Although section 8 of the general regulations allows public servants to freely establish trade unions or associations, section 3 of the same general regulations excludes the following categories of workers from the application of this provision: personnel of the Union and island Assemblies; military personnel; judges; officers of the island domestic security forces; State officials governed by the Labour Code; and officials of local authorities and public establishments. The Committee recalls that the right to establish and join occupational organizations should be guaranteed for all public servants and officials, irrespective of whether they are engaged in the state administration at the central, regional or local levels, are officials of bodies which provide important public services, are engaged on a permanent or temporary basis, or are employed in state-owned economic undertakings. The only authorized exceptions regarding the scope of the Convention are members of the police and the armed forces. However, these exceptions are interpreted in a restrictive manner and do not include civilian personnel of the armed forces, firefighters, prison personnel, customs and tax officers, and civilian employees from industrial establishments of the armed forces. The Committee requests the Government to indicate the legislative provisions that guarantee the categories of personnel specified in section 3 of the general regulations of public servants the right to establish organizations in full freedom. In the absence of such provisions, the Committee requests the Government to take the necessary measures to amend the legislation with a view to enabling these categories of public servants to enjoy the protection provided by Article 2 of the Convention.

Under section 12 of the Labour Code, each representative trade union, that is, a union represented at the national level and comprising at least 150 members, may constitute a trade union section within an enterprise or establishment, which ensures the representation of the occupational interests of its members and all workers in the enterprise or establishment. The Committee recalls that the notion of “most representative trade unions” should be limited to the recognition of certain preferential rights, such as collective bargaining, consultation by the authorities or the designation of delegates to international organizations. The Committee requests the Government to indicate whether a trade union not fulfilling the requirements of representativeness pursuant to section 12 of the Labour Code, but having a significant number of members within the enterprise, can establish a trade union section.

Article 3. Right of organizations to draw up their constitutions and rules. The Committee notes that section 7 of the Labour Code provides that persons who have left their jobs or occupation may continue to be members of a trade union for a maximum of two years, provided that they were in that occupation for at least one year. The Committee recalls that one of the conditions that have to be met to guarantee fully the right of workers’ and employers’ organizations to draw up their constitutions and rules is that national legislation should only lay down formal requirements respecting trade union constitutions, except with regard to the need to follow a democratic process and to ensure a right of appeal for their members. The Committee therefore requests the Government to take the necessary measures to amend section 7 of the Labour Code so that the question of continued membership of a trade union is determined by the constitutions and rules of the trade union in question.

Right of organizations to elect their representatives in full freedom. The Committee notes that section 6 of the Labour Code limits access to administrative and managerial office in a trade union to Comorian nationals who enjoy their civil rights and have no convictions involving the loss of civic rights. The Committee emphasizes that a conviction for an act that, by its nature, does not call into question the integrity of the individual and does not present a genuine risk to the performance of trade union functions should not constitute disqualification. The Committee requests the Government to indicate the acts that involve a conviction resulting in the loss of civic rights, and thus, the loss of the right to be elected as a trade union representative.

The Committee also notes that, sections 4(1) and 6(1) of the Labour Code, when read in conjunction, require a person to belong to an occupation in order to hold trade union office. The Committee recalls that provisions that require members of trade unions to belong to the occupation concerned, and officers of the organization to be chosen from among its members, infringe the right of organizations to draw up their constitutions and to elect their representatives in full freedom by preventing qualified persons (such as full-time union officers or pensioners) from being elected, or by depriving them of the experience of certain officers when they are unable to provide enough qualified persons from among their own ranks. The Committee therefore requests the Government to ensure that the legislative provisions are more flexible – for example, by accepting the candidature of persons who have worked previously in the occupation, or by exempting a reasonable proportion of leaders from the requirement that a person belong to an occupation in order to hold office.

Right of organizations to organize their activities and to formulate their programmes in full freedom. In its previous comments, the Committee requested the Government to specify the content of the legislative and regulatory provisions applicable to strikes. The Committee notes the Government’s indication in its report that the Labour Code is adapted to the spirit of the Convention and that it recognizes trade union rights, particularly in section 247 which recognizes the right of workers to strike, in defence of their occupational interests. The Committee recalls that it considers that strikes relating to the Government’s economic and social policies are legitimate, and that trade union organizations and employers’ organizations responsible for defending socio-economic and occupational interests should be able to use, respectively, strike action or protest action to support their position in the search for solutions to problems posed by major social and economic policy trends which have a direct impact on their members (see the 2012 General Survey on the fundamental Conventions, paragraph 124). The Committee requests the Government to take the necessary measures to ensure the recognition of the right to strike not only in defence of workers’ occupational interests but also their social and economic interests.

With regard to public servants, the Committee notes that section 9 of the general regulations of public servants authorizes the exercise of the right to strike, provided that they are not governed by regulations that prohibit them from striking. The Committee requests the Government to provide a list of categories of public servants who are subject to regulation that prohibit them from striking, in accordance with section 9(3) of the general regulations of public servants.

The Committee also notes that section 247(2) of the Labour Code provides that a strike can only be called eight days after notice is given, stating the grounds for and duration of the envisaged strike. In accordance with section 9(3) of the general regulations, public servants are required to provide advance notice of 15 days stating the grounds for and duration of the envisaged strike. The Committee considers that workers and their organizations should be able to call a strike for an indefinite period if they so wish (see General Survey, op. cit., paragraph 146). The Committee therefore requests the Government to take the necessary measures to amend section 247(2) of the Labour Code and section 9(3) of the general regulations of service of public servants as indicated.

The Committee notes that, under section 248(3) of the Labour Code, the right to strike does not authorize workers to perform their duties in conditions other than those specified in their contract or those prevailing in the occupation, or to arbitrarily use the premises of the enterprise. Furthermore, section 9 bis(5) of the general regulations prohibits the permanent occupation of the workplace or the immediate surroundings during the exercise of the right to strike. Recalling that restrictions on strike pickets and workplace occupations can only be accepted where the action ceases to be peaceful (see General Survey, op. cit., paragraph 149), the Committee requests the Government to clarify the meaning of section 248(3) of the Labour Code, and to take the necessary measures to ensure that section 248(3) of the Labour Code and section 9 bis(5) of the general regulations do not impede the free exercise of the right to strike.

The Committee notes that section 249 of the Labour Code authorizes the competent administrative authority to proceed, at any time, with the requisitioning of workers in private enterprises and in public services and establishments who are engaged in positions that are indispensable for the safety of persons and property, the maintenance of public order, the continuity of the public service or the satisfaction of the essential needs of the community. Section 9 bis of the general regulations limits the requisitioning of public servants who are engaged in indispensable functions to the persons required to provide the minimum indispensable service, and specifies that this requisitioning must not in any case prejudice the right to strike. The Committee recalls that it is desirable to limit powers of requisitioning to cases in which the right to strike may be limited, or even prohibited, namely: (i) in the public service for public servants exercising authority in the name of the State; (ii) in essential services in the strict sense of the term; and (iii) in the case of an acute national or local crisis, and considers that essential services, for the purposes of restricting or prohibiting the right to strike, are only those the interruption of which would endanger the life, personal safety or health of the whole of part of the population (see General Survey, op. cit., paragraphs 151 and 131). The Committee requests the Government to provide the list of jobs considered indispensable for the safety of persons and property, the maintenance of public order, the continuity of the public service or the satisfaction of the essential needs of the community. The Committee also requests the Government to take the necessary measures to amend section 249 to ensure that requisitioning, as an exceptional measure, is limited to the above situations.

The Committee notes that section 240 of the Labour Code provides that, in the event of the failure of conciliation and in the absence of a contractual arbitration procedure, the parties are required to follow the arbitration procedure of the Arbitration Board and provided for in section 243 et seq. The Committee recalls that the failure of conciliation is not per se an element which justifies the imposition of compulsory arbitration, and that unless the parties agree recourse to arbitration to bring an end to a collective labour dispute and a strike is only acceptable under certain circumstances, namely when the strike in question may be restricted, or even prohibited, that is: (a) in the case of disputes concerning public servants exercising authority in the name of the State; (b) in disputes in essential services in the strict sense of the term; or (c) in situations of acute national or local crisis, but only for a limited period of time and to the extent necessary to meet the requirements of the situation (see General Survey, op. cit., paragraph 153). Considering that any failure of conciliation is subject to mandatory referral to an arbitration procedure following which an arbitration award is notified to the parties, the Committee requests the Government to take the necessary measures to amend the legislation to allow the exercise of the right to strike in the context of the settlement of a collective dispute.

Article 4. Dissolution or suspension of organizations by administrative authority. The Committee notes that no provision in the Labour Code addresses the dissolution of a trade union. However, section 9 of the Labour Code provides that the return of the assets of a union in the event of a dissolution that is voluntary, statutory or decided by the courts must be carried out in accordance with the statutes or, in the absence of statutory provisions, the rules determined by the General Assembly, and that the assets may in no case be distributed among the members. Recalling that, when a trade union ceases to exist, in the absence of specific provisions in its statutes, the assets should be placed at the disposal of the workers concerned, the Committee requests the Government to ensure that section 9 of the Labour Code is amended accordingly. The Committee also requests the Government to provide detailed information on the procedure for the dissolution of trade unions, including the relevant grounds and conditions.