Direct Request (CEACR) - adopted 2015, published 105th ILC session (2016)

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

Adoption of the Act on the right to organize in the public service

While welcoming the adoption on 27 August 2014 of the Act on the right to organize in the public service, which recognizes the freedom of association of public servants and determines the legal framework for its exercise, the Committee is addressing the following questions and comments to the Government concerning certain provisions of the Act:

Article 2 of the Convention. Right of workers, without distinction whatsoever, to establish and to join organizations of their own choosing without previous authorization. The Committee notes that section 4 of the Act on the right to organize in the public service 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 also notes 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. In this regard, the Committee recalls 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 therefore requests the Government to specify the categories of public servants who do not benefit from freedom of association under the terms of section 57 of the Act on the right to organize in the public service, 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 notes 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 observes that, under the terms of this provision, a part of state workers, and particularly public employees, who are explicitly covered by the present Act, cannot have access to functions as trade union representatives. Further noting that section 3 of the Act indicates that its scope of application also includes public servants and employees who are retired, the Committee would need supplementary information as to whether section 18(2) allows retired public servants to be appointed as trade union representatives. Recalling 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, the Committee requests the Government to indicate whether retired public servants may, under the terms of current section 18(2) of the Act on the right to organize in the public sector, be elected as trade union representatives. The Committee also requests the Government to take the necessary measures, in consultation with the trade union organizations concerned, to amend section 18(2) so that public employees, whether current or retired, are able to exercise the functions of trade union representation. The Committee requests the Government to provide information on any progress achieved in this regard.

Article 3. Right of trade union organizations to formulate their programmes in full freedom. The Committee notes that section 7(3) of the Act provides that the exercise of the right to strike by public servants and employees shall be regulated by specific legislation. The Committee requests the Government to provide full information on the adoption of the legislation in question, and to indicate, while awaiting the adoption of this legislation, which rules govern the exercise of the right to strike by public servants and employees.

Article 4. Dissolution of trade unions by judicial authority. The Committee notes that section 17(c) of the Act 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. 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 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. In this regard, the Committee considers that the last two grounds enumerated in section 17(c) are vague in nature and could give rise to decisions liable to impair the guarantees set out in the Convention. The Committee therefore requests the Government to take the necessary measures, in consultation with the trade union organizations concerned, to amend section 17(c) of the Act on the right to organize in the public sector as indicated.

Labour Act

Article 3. Right of trade unions to formulate their programmes. The Committee recalls that in its previous comments it 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 considers 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 considers 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 noted previously 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 will submit the Committee’s recommendations concerning the amendment of section 205 of the Act to the Labour Advisory Commission, the Committee requests the Government to take the necessary measures in consultation with the social partners to amend the various provisions of the Labour Act referred to above. Recalling that the Government may have recourse to ILO technical assistance, the Committee requests the Government to provide information on any progress achieved in this regard.