Observation (CEACR) - adopted 2023, published 112nd ILC session (2024)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Eritrea (Ratification: 2000)

Other comments on C098

Observation

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Articles 1, 2, 4 and 6 of the Convention. Legislative issues. The personal scope of the Convention. In its previous comments the Committee had noted that Eritrean law does not explicitly provide domestic workers the rights guaranteed under the Convention and that all civil servants, including those not engaged in the administration of the State are excluded from the scope of the Labour Proclamation and no other special law provides them with the rights guaranteed by the Convention. The Committee notes that regarding domestic workers the Government indicates that it is because of the personal nature of the services rendered by these workers and the isolation in which they work that the law gives the Minister the power to issue a regulation specifically applicable to them and reiterates that the process of drafting the regulation that will afford domestic workers the rights enshrined in the Convention is still underway. The Government further indicates that the 2015 Civil Code also includes certain provisions on the rights of domestic employees. The Committee notes that the 2015 Civil Code contains provisions on the contract of domestic employment without however covering the rights to organize and collective bargaining. Concerning civil servants not engaged in the administration of the State, the Government reiterates that they will have access to the right to organize and collective bargaining upon the adoption of the Civil Service Code, and in the meantime, the provisions of the Civil Code shall apply to them. The Committee notes that section 2182 of the Civil Code refers to the determination of the procedure for collective bargaining, the form and content of a collective agreement, and its duration according to special legislation, namely sections 99-114 of the Labour Proclamation No. 118/2001 (LP). Whereas civil servants not engaged in the administration of the state and domestic workers are not covered by these provisions, the Committee notes with concern that Eritrean law still fails to guarantee these two groups of workers the rights enshrined in the Convention. The Committee therefore urges the Government to accelerate the process of adoption of the Ministerial Regulation concerning domestic workers and the Civil Service Code and to ensure that the rights enshrined in the Convention are duly guaranteed in this framework. It requests the Government to provide information on any measures taken in this respect and to communicate the relevant legislative drafts.

Adequate protection against anti-union discrimination and acts of interference. In its previous comments, the Committee had noted that the LP neither provides for remedies in case of anti-union discrimination at recruitment and during employment, nor for reinstatement of union members other than leaders dismissed for union membership or activities. It had further noted that legal compensation and sanctions against anti-union discrimination and acts of interference are inadequate. The Committee notes that the Government indicates in this regard that the Ministry of Labour and Social Welfare is engaged to finalize the amendments of the LP concerning protection against anti-union discrimination during employment and the compensation provided. Concerning sanctions against acts of interference and anti-union discrimination, the Government indicates that these acts are unfair labour practices entailing punishment and it is up to the complainant or the labour inspector to file a suit in the First Instance Labour Court of Eritrea in this regard. The Government also once again refers to the provisions of the Transitional Penal Code of Eritrea (TPC) concerning “petty offences” as legal basis for further applicable sanctions. The Committee notes however that section 692 of the TPC refers to penalties provided in special legislation, namely a fine not exceeding 1,200 Nakfa – US$80 – pursuant to section 118(5) of the LP. The Committee is bound to note that this fine cannot be considered an effective or dissuasive sanction. The Committee therefore once again urges the Government to review the Labour Proclamation with a view to: (i) providing adequate protection against anti-union discrimination to all workers at every moment of the employment relationship, including recruitment, during employment and at its termination; (ii) ensuring that adequate compensation is provided to victims both in occupational and financial terms; and (iii) modify section 118(5) of the LP, with a view to providing effective and sufficiently dissuasive sanctions against anti-union discrimination and acts of interference. It requests the Government to provide information on any measures taken in this respect.

Articles 4, 5 and 6. Promotion of collective bargaining. Compulsory national service. In its previous comments, the Committee had noted that during the compulsory national service, which is of indefinite duration and contains both a military and a civilian component, Eritrean nationals were deprived of their right to collective bargaining. The Committee notes the Government’s indication that while conscripts are excluded from the right to collective bargaining during the service of purely military character, those who perform national service in state-owned enterprises have bargaining rights equal to that of other workers, and those who work in other public sector positions can exercise their rights under the Civil Code. The Committee considers that the servicepersons who perform non-military work in public service positions and are not engaged in the administration of the State should have the right to collective bargaining and notes that the Civil Code does not provide a framework for collective bargaining. As to the duration of the service, the Committee notes that pursuant to the report of the UN Special Rapporteur on the Situation of Human Rights in Eritrea it continues to be indefinite, both in its military and civilian components (A/HRC/53/20, paragraph 27). In view of the foregoing, the Committee notes that all persons performing compulsory national service, with the probable exception of those assigned to work in state-owned enterprises, continue to be deprived of their right to collective bargaining for periods that have no limitation in practice. The Committee therefore urges the Government to ensure that Eritrean nationals are not denied their right to bargain collectively beyond the scope of the exceptions set out in Articles 5 and 6 of the Convention. The Committee requests the Government to provide information on any measures taken in this respect.

Promotion of collective bargaining in practice. In its previous comment, the Committee had requested the Government to take action to promote free and voluntary collective bargaining and to provide updated information on collective agreements concluded and in force. The Committee notes that the Government merely repeats information provided in its previous report. The Committee therefore once again requests the Government to:(i) take action to promote free and voluntary collective bargaining and to inform on the initiatives taken in this respect; and (ii) provide updated information on the number of collective agreements concluded and in force disaggregated by the sectors concerned, the names of employers’ and workers’ organizations party to those agreements and the number of workers covered.

The Committee reminds the Government of the possibility to avail itself of ILO technical assistance regarding the issues raised in this comment.

[The Government is asked to reply in full to the present comments in 2024.]