Demande directe (CEACR) - adoptée 2019, publiée 109ème session CIT (2021)

Convention (n° 98) sur le droit d'organisation et de négociation collective, 1949 - Comores (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 adoption of the Act of 28 June 2012 repealing, amending and supplementing certain provisions of Act No. 84-108/PR issuing the Labour Code.

Article 1 of the Convention. Adequate protection against anti-union discrimination. The Committee notes that penalties for violations of section 11 of the Labour Code, which protects trade union activities against acts of discrimination and interference, are set out in section 260 of the Labour Code and consist of a fine of between 250,000 and 750,000 Comorian francs (US$600 and US$1,800) and a sentence of imprisonment of between three months and three years, or one only of these penalties. Recalling the importance of the effective and dissuasive nature of penalties, the Committee requests the Government to provide information on the effect given in practice to these provisions, with an indication of the number of cases brought to the attention of the competent authorities, the duration of the procedures and their outcome. Furthermore, noting that in its reply to the Workers’ Confederation of Comoros (CTC) observations of 2013, the Government indicates that the dismissed trade union officers have been reinstated in their positions, the Committee requests the Government to indicate whether reinstatement accompanied by retroactive wage compensation for the period between the dismissal and the reinstatement order, and compensation for the prejudice suffered, are included among the range of measures that may be ordered by the judicial authorities in cases of anti-union discrimination.

Article 2. Adequate protection against acts of interference. The Committee notes that section 11(2) of the Labour Code contains a general prohibition on any employer from exerting pressure in favour of or against any specific trade union. Recalling the importance of the effective prohibition by the national legislation of all of the acts of interference covered by Article 2 and the establishment of dissuasive penalties, the Committee requests the Government to provide information on the effect given to this provision in practice.

Article 4. Promotion of collective bargaining. Determination of the representative organizations of workers and employers. The Committee notes that, under the terms of section 91(4) of the Labour Code, the representative nature of a trade union or an occupational grouping shall be determined by order of the Minister of Labour, who shall base the decision on various elements, including membership and the results of elections of staff delegates, independence, dues paid, the experience of the union, and the scope and nature of its activities. Although this decision can be appealed for abuse of power, the Committee recalls that this determination should be carried out in accordance with a procedure that offers every guarantee of impartiality, by an independent body that enjoys the confidence of the parties, and without political interference (see General Survey on the fundamental Conventions, 2012, paragraph 228). In order to ensure compliance with these principles, the Committee requests the Government to provide information on the determination in practice of the representative nature of workers’ and employers’ organizations. The Committee also requests the Government to specify whether section 91 of the Labour Code applies to the conclusion of any collective agreements, or only those concluded at the branch level.

Procedure for the extension of collective agreements. The Committee notes that, in accordance with section 94 of the Labour Code, the Minister of Labour may initiate the extension procedure with a view to making the provisions of collective agreements mandatory for employers and workers covered by the occupational and territorial scope of the agreements. In light of the principle of free and voluntary collective bargaining recognized in Article 4 of the Convention, the Committee recalls that the extension procedure may be subject to the conditions that the collective agreement already covers a number of employers and workers concerned which is sufficiently representative in the opinion of the competent authority. The Committee requests the Government to specify the conditions under which the extension procedure provided for in section 94 of the Labour Code may be initiated in practice.

Promotion of free and voluntary collective bargaining. The Committee notes that the Advisory Labour and Employment Council (CCTE) has been established under the authority of the Minister of Labour by section 188 of the Labour Code and that it may, at the request of the Minister, examine any difficulty arising in relation to the negotiation of collective agreements and issue an opinion on any matters relating to the conclusion and application of collective agreements. The Committee requests the Government to provide information on the role and activities of the CCTE.

Compulsory arbitration. The Committee notes that section 240 of the Labour Code provides that, in the event of the failure of conciliation, the dispute shall be submitted to arbitration by the labour inspector. The Committee also notes that, in accordance with sections 243 and 244, the parties have a period of ten days from the notification of the arbitration award to oppose it, following which an unchallenged award becomes binding. The Committee recalls that, in accordance with the principle of free and voluntary collective bargaining set out in Article 4 of the Convention, compulsory arbitration to bring an end to collective labour disputes is only admissible under certain specific circumstances. The Committee requests the Government to specify the consequences of a party’s opposition to the arbitration award envisaged in section 243(3) of the Labour Code.

Articles 4 and 6. Right to collective bargaining of public servants not engaged in the administration of the State. The Committee notes, on the one hand, that section 1 of the Labour Code excludes from its scope of application persons appointed to a permanent managerial position in a public administration and, on the other, that under the terms of section 83 of the Code, the personnel of public services, enterprises and establishments not governed by a specific legislative or regulatory status may conclude collective agreements in accordance with the provisions of the Labour Code. Finally, the Committee notes that, under the terms of section 3, the General Regulations respecting public employees of the Union of Comoros does not apply, among others, to the following categories of workers: State employees governed by the Labour Code and employees of local communities and public establishments. The Committee recalls that, under the terms of Article 6, public servants engaged in the administration of the State (that is, public servants who by their functions are directly employed in the administration of the State, such as civil servants in government ministries and other comparable bodies, and ancillary staff) may be excluded from the application of the Convention, while all other persons employed by the Government, by public enterprises or by autonomous public institutions (such as employees in public enterprises, municipal employees and those in decentralized entities, public sector teachers, as well as air transport personnel) should benefit from the guarantees provided for in the Convention (see General Survey on the fundamental Conventions, 2012, paragraph 172). In light of the above, the Committee requests the Government to provide the list of public services, enterprises and establishments in which the personnel is governed by a specific legislative or regulatory status and, accordingly, is excluded from the scope of application of section 83 of the Code, and to indicate any provisions which recognize their right to negotiate their terms and conditions of work and employment.