Report in which the committee requests to be kept informed of development - Report No 297, March 1995

Case No 1762 (Czechia) - Complaint date: 08-MAR-94 - Closed

1. 272. In a communication dated 8 March 1994, the Czech-Moravian Chamber of Trade Unions (CMKOS) submitted a complaint of violations of freedom of association against the Government of the Czech Republic. The Public Services International expressed its desire to be associated with this complaint in a communication dated 19 April 1994.
2. 273. The Committee received a communication dated 6 March 1995 from the Government which does not, however, address the substantive issues raised in the complaint.
3. 274. The Czech Republic has ratified the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87), and the Right to Organize and Collective Bargaining Convention, 1949 (No. 98); it has not, however, ratified the Labour Relations (Public Service) Convention, 1978 (No. 151), or the Collective Bargaining Convention, 1981 (No. 154).

A. The complainant's allegations

1. 275. In its complaint of 8 March 1994, the CMKOS alleges that the draft of Principles of the Act on Government Service of Some Public Servants (the Service Act) which has been submitted to the House of Deputies of the Parliament of the Czech Republic constitutes a violation of basic trade union rights.
2. 276. Principle No. 51 of this draft provides that state employees do not have the right to strike and, according to the complainant, does not make any distinction between individual categories of state employees but applies to all state employees covered by the draft Act. Furthermore, Principle No. 52 prohibits the activity of trade union organizations in service agencies. The complainant asserts that the right to establish and to join trade union organizations loses all sense if these organizations cannot develop activities for the benefit of the economic and social interests of their members. Moreover, precluding such activity would deprive these organizations of any possibility to negotiate collectively their working conditions. The coverage of the draft Act is very wide and would apply to approximately 60,000 persons.
3. 277. Finally, the complainant points out that, even in draft form, this Act has an impact on trade union rights since the insecurity of employment for public servants whose status will have to be changed under the new proposed legislation has created an atmosphere where the Government's proposal to ban trade union activity has created pressure for members to leave unions or for trade union organizations to be dissolved.

B. The Government's reply

1. 278. In a communication dated 6 March 1995, the Prime Minister of the Czech Republic states that there is absolutely no restriction or violation of trade union rights in the public service or in state administration. He adds that the newly prepared Bill on the working and social conditions of state employees is in the nascent stage and is being discussed in both the legislative and executive bodies. This discussion will also include whether the Bill is in accord with international agreements which are binding on the Czech Republic. According to the Prime Minister, international discussion of an internal Bill - not yet adopted as law - is unacceptable. He concludes that the ILO has no mandate from its member States to discuss things which have not yet been realized, without the agreement of the Government concerned.

C. The Committee's conclusions

1. 279. The Committee takes note of the comments made by the Prime Minister and the concern expressed by him. In this respect the Committee would recall that, when dealing with precise and detailed allegations regarding draft legislation, it has always taken the view that the fact that such allegations relate to a text that does not have the force of law should not in itself prevent the Committee from expressing its opinion on the merits of the allegations made. The Committee has considered it desirable that, in such cases, the Government and the complainant should be made aware of the Committee's point of view with regard to the proposed Bill before it is enacted, since it is open to the Government, on whose initiative such a matter depends, to make any amendments thereto (Digest of decisions and principles of the Freedom of Association Committee, 3rd edition, 1985, para. 30). A recent example of the review of draft legislation can be found in the Committee's 294th Report (Case No. 1704 (Lebanon)). The Committee therefore considers that the examination of this case is warranted and consistent with its regular practice.
2. 280. First considering the draft Act's scope of application, the Committee notes that Principle No. 1 provides that the Act covers some public servants in ministries and other administrative agencies, relating to the performance of government service. Principle No. 4 excludes from the Act's coverage a number of categories of workers, including Czech National Bank employees and persons working in service offices (i.e. ministries or administrative agencies covered by the Act), but not performing state administration tasks or managing affairs of the State. According to the explanation given in the "Grounds of Principles Nos. 1 to 4", this Act is also not intended to apply to teachers, state railway workers, or community administration workers, although pursuant to special regulations they do carry out state administration tasks under delegated jurisdiction. Nor does it cover auxiliary and service workers in ministries or other administrative agencies, such as drivers, typists, maintenance workers, cleaners, etc.
3. 281. As concerns Principle No. 51 which prohibits the right to strike for state employees covered by the Act, while noting that this prohibition is limited to those who carry out state administrative tasks or manage affairs of the State, the Committee observes that, according to the complainants, 60,000 persons are affected by it. In this regard, the Committee has admitted that the right to strike may be restricted or even prohibited in the civil service. However, the Committee, like the Committee of Experts on the Application of Conventions and Recommendations, considers that a too broad definition of the concept of public servant is likely to result in a very wide restriction or even a prohibition of the right to strike for these workers. The prohibition of the right to strike in the public service should be limited to public servants exercising authority in the name of the State. (See General Survey on Freedom of Association and Collective Bargaining, ILC, 81st Session, 1994, para. 158.)
4. 282. As concerns Principle No. 52 which bans trade union activity in the service agencies covered by the legislation, the Committee recalls that freedom of association implies not only the right of workers and employers to form freely organizations of their own choosing but also the right, for the organizations themselves, to pursue lawful activities for the defence of their occupational interests. (Digest, op. cit., para. 345.) Since public employees should, like workers in the private sector, be able to establish organizations of their own choosing to further and defend the interests of their members, and these organizations should be entitled to organize their activities (see Digest, op.cit., para. 214), the Committee considers that Principle No. 52 is not in conformity with the principles of freedom of association. The Government is therefore requested to take measures to delete Principle No. 52 from the draft Act and to keep the Committee informed of the steps taken in this regard.
5. 283. As concerns the complainant's further allegation that Principle No. 52 violates the right to negotiate collectively guaranteed by Convention No. 98 (ratified by the Czech Republic), the Committee recalls that, while this Convention, and in particular Article 4 thereof concerning the encouragement and promotion of collective bargaining, applies both to the private sector and to nationalized undertakings and public bodies, it is possible to exclude from such application public servants engaged in the administration of the State. (See Digest, op. cit., para. 597.) The coverage of the Act seems to be compatible with this principle.

The Committee's recommendations

1. 284. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee suggests to the Government not to maintain those provisions of the draft Act on the public service that are not in conformity with freedom of association principles.
   • (b) Recalling, in particular, that public employees should, like workers in the private sector, be able to establish organizations of their own choosing and that these organizations should be entitled to organize their activities in the furtherance and defence of the interests of their members, the Government is requested to take measures to delete the prohibition on the right to organize for public servants contained in the draft Act on the Public Service and to keep the Committee informed in this regard.
   • (c) Recalling that a too broad definition of the concept of public servant is likely to result in a very wide restriction or even a prohibition of the right to strike for these workers, the Committee invites the Government not to deny the right to strike to public servants not exercising authority in the name of the State.