Observation (CEACR) - adopted 1998, published 87th ILC session (1999)

The Committee notes the information provided by the Government in its previous reports. The Committee recalls that its previous comments concerned the discrepancies between the national legislation and the Convention, namely Legislative Decree No. 84 of 1968 respecting workers' organizations and the amendments to the Decree up to and including 1982, the Agricultural Labour Code No. 136 of 1958, Act No. 21 of 1974 respecting peasants' associations and Legislative Decree No. 250 of 1969 respecting craftsmen's associations. The Committee recalls the need to amend the following provisions:

-- section 160 of the Agricultural Labour Code No. 136 of 1958, which prohibits strikes in the agricultural sector, and section 262 of the same Code, which provides that any person who instigates or participates in a strike or lockout is liable to a term of imprisonment ranging from three months to one year;

-- section 32 of Legislative Decree No. 84 and section 6 of Legislative Decree No. 250, which prohibit unions from accepting gifts, donations and legacies without prior ministerial approval or that of the General Federation of Workers' Union;

-- section 35 of Legislative Decree No. 84, which confers on the Ministry wide powers of intervention over trade union finances;

-- section 36 of Legislative Decree No. 84 and section 12 of Legislative Decree No. 250, which require that first-level trade unions allocate a certain percentage of their resources to higher-level trade unions;

-- section 44(b)/4 of Legislative Decree No. 84, which provides for the requirement of trade union membership for a period of at least six months prior to election to trade union office;

-- section 49(c), which confers on the General Federation the right to dissolve the Executive Committee of any trade union;

-- section 25 of Legislative Decree No. 84, as amended in 1982, which subjects non-Arab workers to a condition of reciprocity, thereby restricting their trade union rights;

-- sections 3, 4, 5 and 7 of Legislative Decree No. 84 of 1968, which organizes the structures of trade unions on a single union basis;

-- sections 4, 6, 8, 13, 14 and 15 of Legislative Decree No. 30 of 1982 amending Legislative Decree No. 84 of 1968, which designates the General Federation of Workers' Union as the single central trade union organization;

-- section 2 of Legislative Decree No. 250 of 1969 regarding craftsmen's associations and sections 26 to 31 of Act No. 21 of 1974 regarding peasants' cooperative associations, which impose a single trade union system.

The Committee moreover recalls that it had previously requested the Government to amend or repeal sections 330, 332, 333 and 334 of Legislative Decree No. 148 of 1949 respecting the Penal Code, which restricts the right to strike and lockouts by imposing heavy sanctions, including terms of imprisonment. Section 330 of the Penal Code provides for loss of civic rights for public servants who, as an organized group, hinder the functioning of a public service. Section 332 of the Penal Code imposes a term of imprisonment or a fine for any organized strike action by more than 20 workers in the transport, postal, telegraphic and telecommunications, water and electricity-generating services and for strikes accompanied by demonstrations on roads or at public places or where strikers occupy offices and buildings (even peacefully). Section 333 imposes a term of imprisonment of a maximum of one year, or a fine of not more than 50 Syrian pounds for any person who has encouraged a strike or lockout. A term of imprisonment ranging from two months to one year is enforceable under section 334 on any person who refuses to execute or who defers the carrying out of an arbitration sentence or any other decision handed down by an industrial tribunal.

Moreover, the Committee recalls that it has been requesting the Government for several years to amend section 19 of Legislative Decree No. 37 of 1966 respecting the Economic Penal Code which imposes forced labour on any person who causes prejudice to the general production plan decreed by the authorities by acting in a manner contrary to the plan. The Committee had pointed out that a general prohibition of strike action provided for by legislation, directly or indirectly, could considerably restrict the right to strike by trade union organizations, which is contrary to Articles 3 and 8 of the Convention. The Committee emphasizes that strike action is an intrinsic corollary of the right to organize and considers that 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, or to employees in essential services in the strict sense of the term, namely, services the interruption of which would endanger the life, personal safety or health of the whole or part of the population (see the General Survey on freedom of association and collective bargaining, 1994, paragraph 159). The Committee trusts that the Government will review its penal legislation in the light of these considerations and will provide in its next report, any information on the measures taken or envisaged to bring its legislation into conformity with the principles of freedom of association.

The Committee notes with great interest the information provided by the Government in its previous reports to the effect that the Cabinet has recommended the approval and promulgation of the Bill to repeal section 160 of the Agricultural Labour Code No. 134 of 1958, which prohibits strikes by farmers and agricultural workers, and the repeal of section 262 of this Code, which enforces a term of imprisonment on any person who encourages or participates in a strike. The Cabinet has also recommended the amendments of section 59(e) of Act No. 21 of 1974 respecting peasants' associations and sections 6 and 12 of Legislative Decree No. 250 of 1969 respecting craftsmen's associations.

The Committee also notes with interest that the Government reiterates its previous information and again indicates that the competent authorities are examining a new Bill amending sections 32, 35, 36(2), (3) and (4), 44(b)/4 and 49(c) of Legislative Decree No. 84 of 1968, which restricts the freedom of trade unions to organize their administration and their activities and confers, in particular, wide powers of intervention on the authorities in respect of trade union finances, to bring these sections into conformity with the Convention.

The new Bill also amends certain sections of Legislative Decree No. 84 of 1968, as amended by Legislative Decree No. 30 of 1982, which continued to be incompatible with the Convention:

-- section 22(a), which is still in force, requires that trade union constitutions must correspond with the model established by the General Federation of Workers' Union. The legal obligation for first-level unions to conform to a model constitution and use such a model as a basis is contrary to Article 3 of the Convention, which guarantees the right of workers' organizations to draw up their constitutions and rules without interference by the public authorities (see General Survey, op. cit., paragraph 111). The Committee takes due note of the proposed amendment which will bring this section into conformity with the provision of the Convention;

-- section 25 confers on foreign workers the right to join trade unions only on condition of reciprocity. This provision is incompatible with Article 2 of the Convention, which applies to all workers, without distinction whatsoever. The Committee takes due note of the proposed amendment to abolish the requirement for reciprocity;

-- section 36(5), currently in force, provides that trade unions must allocate 20 per cent of their actual resources to the General Federation of Workers' Union. This provision is not in conformity with Article 3 of the Convention, which guarantees workers' organizations the right to organize their administration without the interference of the public authorities and, in particular, the right to autonomy and financial independence as well as the protection of its assets.

The Committee notes that the Bill in respect of section 22(b) provides that trade unions will make a "voluntary contribution" to the social security fund as well as to the Federation of Workers' Union. The Committee recalls that the financial participation by first-level trade unions to higher-level organizations imposed by law could constitute an act of interference, which is contrary to Article 3, paragraph 2, of the Convention (see General Survey, op. cit., paragraph 111). Such provisions should be left to the rules of the trade unions and not set out in legislation.

The Committee recalls, moreover, that, despite the amendment of Legislative Decree No. 30 of 1982, discrepancies exist between the Convention and section 18(a) of Legislative Decree No. 84. The provision provides that trade unions have the right to invest in financial or other projects, but only in the conditions and according to the methods determined by the Minister. The Convention establishes, in paragraphs 1 and 2 of Article 3, the right of workers' organizations to organize their administration and their activities without the interference of the public authorities.

The Committee notes further the information provided by the Government in its report to the effect that the General Federation of Workers' Union, as well as the General Federation of Peasants and the General Federation of Craftsmen adhere to the principle of trade union unity, in conformity with the decisions of their assemblies, in order to maintain the organizational force of each of the above federations, and have requested the Government to refrain from amending the legislation. The Committee, at the same time, is bound to emphasize that there is a fundamental difference between, on the one hand, a trade union monopoly established or maintained by law and, on the other hand, voluntary groupings of workers or unions which occur, without pressure from the public authorities, or due to the law, because they wish, for instance, to strengthen their bargaining position. It is generally to the advantage of workers and employers to avoid proliferation of competing organizations, but trade union unity directly or indirectly imposed by law runs counter to the standard expressly laid down in the Convention (see General Survey, op. cit., paragraph 91). In this respect, the Committee, in paragraphs 97 and 98 of the General Survey, recognizes that certain legislation, in an attempt to establish a proper balance between imposed trade union unity and the fragmentation of organizations, establishes the concept of the most representative trade union. The Committee considers that this type of provision is not in itself contrary to the principle of freedom of association, provided that certain conditions are met. Firstly, the determination of the most representative organization must be based on objective, pre-established and precise criteria so as to avoid any possibility of bias or abuse. Furthermore, the distinction should generally be limited to the recognition of certain preferential rights, for example, for such purposes as collective bargaining. However, the freedom of workers to choose would be jeopardized if the distinction between the most representative and minority trade unions results, in law or in practice, in the prohibition of other trade unions that workers would like to join. This distinction should not therefore result in depriving those trade unions who are not recognized as being amongst the most representative of the essential means of defending the occupational interests of their members, and organizing their administration and activities, as provided for under the Convention.

The Committee therefore requests the Government to amend the following Legislative Decrees, as soon as possible, to institute a system of trade union unity and bring its legislation into conformity with the Convention:

-- sections 3, 4, 5 and 7 of Legislative Decree No. 84 which organizes the structure of trade unions on a single-union basis;

-- sections 4, 6, 8, 13, 14 and 15 of Legislative Decree No. 30 of 1982, which designates the General Federation of Workers' Union as the single central trade union organization;

-- section 2 of Legislative Decree No. 250 of 1969, which concerns craftsmen's associations, and sections 26 to 31 of Act No. 21 of 1974, concerning peasants' cooperative associations, which imposes a single trade union system.

The Committee hopes that the proposed amendments will be rapidly adopted and promulgated and requests the Government to take the necessary measures to bring all of its national legislation into conformity with the Convention in the near future. The Committee, in this respect, recalls that the technical assistance of the Office is available to the Government, and requests the Government to inform it in its next report of any progress achieved in this area and to provide copies of any provisions which have been repealed or amended.