Observation (CEACR) - adoptée 2008, publiée 98ème session CIT (2009)

Convention (n° 87) sur la liberté syndicale et la protection du droit syndical, 1948 - Aruba

The Committee notes that the Government’s report has not been received. It must therefore repeat its previous observation which read as follows:

Article 3 of the Convention. In its previous comments, the Committee had asked the Government to amend or repeal section 374(a) to (c) of the Penal Code and section 82 of Ordinance No. 159 of 1964, which prohibited the right to strike by public employees under threat of imprisonment.

The Committee had noted that, in the Government’s opinion, the abovementioned provisions are in conformity with the Convention, as they do not prohibit public employees from striking. According to the Government, section 374(a) of the Penal Code refers to imprisonment or fine of a public official in the case when he or she, while performing his or her duties, acts with the aim to cause stagnation or to permit the continuation of stagnation, neglects or refuses to perform labour corresponding to his or her inherent duties as a public official. The Government further indicated that section 82(2) of Ordinance No. 159, which states that punishment may be exacted on public employees who neglect or refuse to perform labour as any good public official is expected to perform is aimed at an individual’s refusal to perform his or her duties, and not at collective or individual strikes. The Government further indicated that the Penal Code will not be affected by a revision of the labour legislation as the Penal Code falls under the competency of the Ministry of Justice. However, the Code is currently under evaluation by a special committee established in March 2003. It is estimated that its work will be completed in approximately two years. After the evaluation period, the work on the suggested amendments will commence.

The Committee recalls that, in its 1992 report, the Government acknowledged that strikes by public employees, including teachers in the public sector, were forbidden by law (section 347(a) to (c) of the Penal Code and section 82 of Ordinance No. 159 of 1964), although in practice public employees had resorted to strikes on several occasions and that the local courts had considered such strikes to be legal on condition that they were justified. The Committee recalls that the principle whereby the right to strike may be limited or prohibited in the public service or in essential services would become meaningless if legislation defined the public services or essential services too broadly. The Committee considers that the prohibition should be limited to public servants exercising authority in the name of the State or to services the interruption of which would endanger the life, personal safety or health of the whole or part of the population. Noting that the Penal Code is currently under evaluation, the Committee hopes that the Code, as well as section 82 of Ordinance No. 159, will be reviewed in accordance with the Committee’s comments and asks the Government to indicate any progress in this respect. The Committee reminds the Government that it may avail itself of the technical assistance of the Office if it so wishes.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.