Individual Case (CAS) - Discussion: 2003, Publication: 91st ILC session (2003)

The Government supplied the following information.

During the past three years, the Government and the social partners have jointly undertaken the review of the Labour Proclamation, with due attention given to the need to bring the law into conformity with the provisions of ratified ILO Conventions. The resulting amendments, including those pertaining to the case before the Committee of Experts, are now before the Council of Ministers, which is expected to present its recommendations to Parliament for enactment into law.

1. Article 2 of the Convention. Right of workers without distinction whatsoever to join an organization of their own choosing

The draft amendment contains, in line with the Committee's recommendation, new provisions which allow union diversity in an undertaking, and which read as follows:

Sub-Articles (1) and (2) of Article 114 are hereby deleted and replaced by the following new sub-Articles (1) and (2), and the following new sub-Article 7 is added to this Article.

1. A trade union may be established in an undertaking where the number of workers is ten or more, but the number of workers in a trade union should not be less than ten.

2. Workers who work in undertakings which have less than ten workers may form a general trade union, provided, however, that the number of the members of the union shall not be less than ten.

...

7. Notwithstanding sub-Article 4 of this Article, any employer may join an established employers' federation.

2. Articles 2 and 10. Restrictions on the right to unionize of teachers and civil servants

The new law for state administration employees has already been issued and entered into force. The Constitution fully guarantees the right to freedom of association. Accordingly, teachers are free to form associations and promote their occupational interests and, of course, they are exercising such rights. Those teachers who are working in government institutions are governed by the Civil Servants Law, while those working in private undertakings are governed by the Labour Law.

There are also specific laws and regulations which govern the employment conditions of the judges and prosecutors. These include the Judicial Administration Commission Establishment Proclamation No. 24/1996 and the Federal Prosecutor Administration Council of Ministers Regulations No. 44/1998.

3. Article 4. Administrative dissolution of trade unions

With regard to this issue, the draft amendment would vest the power of cancellation in the courts, and therefore an administrative agency does not have the authority to dissolve trade unions. The amendment agreed by the Council of Ministers reads:

Article 120:

The Ministry may apply to the competent court to cancel the certificate of registration of an organization on any one of the following grounds (as contained in section 120(a)-(c)).

4. Articles 3 and 10. Right of workers' organizations to organize their programme of action without interference by public authorities

With regard to the ban on strikes, the draft amendment of the Labour Law has excluded most of the services mentioned by the Committee from the list of essential services, except very few which are considered as essential, taking into account the particular circumstances prevailing in the country. In Ethiopia such services are underdeveloped and no other alternatives exist from the private sector. Ethiopia's current limited resources and the underdeveloped infrastructure cannot afford interruptions of such services which would have a devastating impact on the economy and the well-being of the society. The amendment agreed by the Council of Ministers reads:

Sub-Article 2(a), (d), (f) and (h) of Article 136 are hereby deleted and Sub-Article 2(a), (d) and (h) are replaced by the following new sub-Article 2(a), (d) and (h), and sub-Article 5 is hereby deleted and replaced by the following new sub-Article 5.

a. air transport;

d. urban bus services and filling stations;

h. telecommunication services.

...

5. "Strike" means the slow down of work by any number of workers in reducing their normal output on their normal rate of work or the temporary cessation of work by any number of workers acting in concert in order to persuade their employer to accept certain labour conditions in connection with a labour dispute or to influence the outcome of the dispute.

Concerning labour disputes, the draft amendment of the Labour Law has included a proposal that labour disputes may be submitted to the Labour Relations Board for arbitration by either of the disputing parties, but the decision of the Board may not be binding. The proposed amendments read:

Article 153 is hereby deleted and replaced by the following new Article 153:

153 Decision of the Board

...

Decision of the Board may be appealable.

The following sub-Articles (1), (2) and (3) of Article 154 are hereby deleted and replaced by these new sub-Articles (1), (2) and (3).

1. In any labour dispute case an appeal may be taken to the Federal High Court by an aggrieved party on questions of law or fact, within thirty (30) days after the decision has been read to, or served upon, the parties whichever is earlier.

2. The court shall have the power to uphold, reverse or modify the decision of the Board.

3. The court shall give its decision within 30 days from the date on which the appeal is submitted to it in accordance with sub-Article 1 of this Article.

A Government representative (the Minister of Labour and Social Affairs) referred to the major achievements his country had recorded in implementing the principles and objectives of the ILO. To date, his country had ratified 19 ILO Conventions and with the ratification this year of Convention Nos. 29 and 182, it had ratified all the fundamental Conventions. In addition, his country was in the process of amending its labour legislation. This extensive amendment process was addressing the concerns of the Committee regarding trade union diversity, administrative dissolution of trade unions and the scope of the right to strike. He informed the Committee that the amendments to the Labour Proclamation were now before the Council of Ministers for adoption and submission to Parliament for enactment. He indicated that, in line with the Committee's recommendation, the text of the draft amendment of section 114(1)(2) permitted union diversity; section 120 completely prohibited administrative dissolution of trade unions; section 136(2)(a)(d)(h) limited the ban on strikes to only essential services rendered to the general public; the scope of the definition of "essential services" had been narrowed down to include only the most essential ones by excluding railways, banks, postal and inter-urban bus services from the list of essential services. In respect of labour dispute settlement mechanisms, the existing Labour Law stipulated that upon agreement of both parties such disputes could be settled as provided in sections 141 and 143 by conciliation or by arbitration respectively. Failing that, either party could take the case to the Labour Relations Board or the appropriate court. The decisions of the quasi-judicial Labour Relations Board would, according to the proposed amendments, become binding but subject to appeal to the Labour Division of the Federal High Court on both questions of fact and law.

He considered that, because of the progress made in the amendment process and the conviction shown by his Government in implementing ILO principles by ratifying fundamental Conventions, he expected encouragement and constructive recommendations from this Committee this year. He asked for understanding from the Committee for the delays in the adoption of the amendments, which were due to the complexity of the issues involved and various constraints confronting his Government. He assured the Committee of his Government's unreserved effort in implementing ILO principles. He also thanked the ILO for its assistance in the amendment process.

The Worker members recalled that this was another well-known case by the Committee that involved serious violations of trade union rights. They wished to recall the history of this case and the fact that due to the lack of cooperation by the Government in the past, the Committee had been compelled to take up this case in a special paragraph of the General Report. This case involved serious violations of Articles 2, 3, 4 and 10 of the Convention and the Committee of Experts had expressed deep regret about the lack of progress made. The Government had said more than once that legislation would be adopted soon or that it was in its final stages. However, after having heard the statement by the Government representative that Parliament would soon be able to adopt the draft legislation, the Worker members indicated that they would not insist on a special paragraph this year provided that the Government explicitly confirmed to this Committee that they were sure that this would actually be the case before the next session of the Committee. This did not mean, however, that they were satisfied that the draft legislation presented was already considered in line with the Convention. This would have to first be examined by the Committee of Experts and discussed by the Conference committee next year.

In addition, the Worker members highlighted two other points. First, it was regrettable that the Committee of Experts remained silent on the question of the practical application of the Convention, except for where it notes the release of Dr. Taye Woldesmiate. Nevertheless, the Workers wanted to respond to a firm commitment by the Government with a positive gesture. If they would find next year that the new legislation had, once again, not been adopted despite such a promise of the Government, they would then certainly propose to highlight this failure, once again in a special paragraph. There were many other problems of application in practice such as the lack of an independent inquiry into the death of other leaders of the Ethiopian Teachers' Association as well as other cases of alleged serious interferences by the Government in trade union activities at the enterprise level, like e.g. in the Belgel-bibe Hydro Electric Company and in the Ethopian Electric Light and Power Authority. In this regard, the Worker members indicated that the Worker member of Ethiopia would be ready to discuss many similar cases which had occurred in the recent past with the ILO in Ethiopia. Finally, there was the issue of the democratically elected trade union leaders in exile who wished to return to Ethiopia. The Government should, in cooperation with the ILO, design ways and means to make sure that these people could come home. After returning to Ethiopia, these people should be able to live a life without harassment and danger to their safety and with normal opportunities to make a living. The Worker members called upon the Committee of Experts to pay more attention to the application of the Convention in practice in their next report. The Worker members decided to give the Government the benefit of the doubt and would refrain from requesting a special paragraph if the Government was able to ensure that the legislative amendments would be adopted. They further requested that the Committee of Experts give its view on the new legislation when adopted and examine the practical application of the Convention. The Government should, in cooperation with the ILO, design ways and means to ensure the safe return of the trade union leaders in exile.

The Employer members stated that this case had often been the subject of Committee discussions and that promises of labour law amendments being close to adoption had been heard for more than nine years now. In reference to the points raised in the observation of the Committee of Experts, they questioned whether Articles 2 and 10 of the Convention also covered judges and state attorneys. The dissolution of trade unions should be by the authority of courts and not by the administration. As for the right to strike, the Employer members reiterated their view that Convention No. 87 did not cover this right. They noted positively the release of Dr. Taye Woldesmiate, but felt that the statement by the Government representative had not changed from last year. The Government was therefore requested to indicate when the draft legislation that was to bring the national legislation into line with the provisions of Convention No. 87 would be adopted. As long as the situation remained the same, they would need to repeat the conclusions of last year.

The Employer member of Ethiopia commended the constructive role played by the ILO in helping the process of amending the Labour Proclamation of Ethiopia. Ethiopian employers had truly wanted these amendments because they thought they would provide the legal basis for their organizational strength as well as creating an enabling environment for investment, productivity and development for the benefit of millions of Ethiopians who lived below the poverty line. In addition to the legislative amendment, his Federation had focused on capacity building of its members to enable them to take part in the economic and social transformation of the country. Along with the workers, employers had provided practical proposals for the amendment of the labour laws. The Government responded and acted on these amendments not only to the labour laws but also to other laws such as the investment and tax laws. Nonetheless they shared the Committee's concern about the slow speed of the amendment process. He hoped that these would be adopted soon as indicated by the Minister, and that they would be the means of addressing the country's poverty. He noted a marked improvement in the attitude of the Government to recognize and work with the social partners in this great task of feeding the country. He considered that the Government needed to get some positive feedback from this Committee in its difficult efforts of transforming a centrally controlled system. He indicated that there was a need for continued ILO technical assistance to enable the Government to devote its efforts to creating an enabling environment for sustainable development of businesses.

The Worker member of Ethiopia recalled that the case of Ethiopia had been before this Committee for years. The concern of the Committee was the need to amend the Labour Law in order to bring it into conformity with ILO standards. His Confederation took part in bilateral and tripartite consultations that contributed to the much-needed amendment process. The process had been successful and had resulted in draft amendments that recognize the right of workers to form trade unions of their choice, that lower the number of workers required to form trade unions from 20 to ten, and that ban the administrative dissolution of trade unions. Railways, postal services and inter-urban bus services were no longer considered to be essential services. The draft amendments also guaranteed recourse by the parties to the Labour Relations Board and the courts when amicable settlement of disputes failed. Despite the accumulated delay with amendments, the recent tripartite discussions had moved the process to the Council of Ministers for its final consideration and adoption by Parliament. He thanked the ILO for its support in the labour law revision process.

The Worker member of Austria stated that the Worker members had presented the essential aspects of the case, including a long list of violations of freedom of association in law and in practice. However, in order to illustrate the urgency for a solution of this matter, he wished to add another serious case of practical violation of freedom of association involving the imprisonment of workers and trade union leaders of a hydroelectrical company and charged with incitement to strike. In his view, this case was not an isolated one but it reflected a situation of systematic violations where free trade unions were being hindered from fully exercising their rights, including the right to strike, especially those in "essential services". The current definition of "essential services" affected, in practice, more than 50 per cent of the workers. This was unacceptable. Having heard the statement of the Government representative that major changes had been made, he requested the Government to confirm whether, under the new draft legislation, certain sectors such as banking would still be excluded. The Government should also amend the legislation, particularly as regards the definition of "essential services", as this would determine the manner in which trade unions rights were being dealt with in the country.

The Worker member of Senegal indicated that it was the sixth year that this case was examined before the Committee, when the Government was requested to remove the obstacles to the enjoyment of fundamental labour rights and to the implementation of the Convention. These obstacles concerned the recognition of only one trade union per category of workers, the restrictions on the right of teachers and civil servants to organize as well as the administrative dissolution of trade unions. The release of Dr. Taye Woldesmiate and his co-defendants gave the impression that this Committee proved itself to be useful even if this case had still an unfinished aspect. Document D.8 indicated that the Government seemed to have taken on a new approach and had listened to the observations of the Committee, at least on paper. It was thus for the Government to commit itself concretely by establishing machinery that would favour the development of social dialogue and would allow exiled or arrested trade unionists to exercise their rights without any preconditions. Until now governmental behaviour had provoked hate, repression, humiliation and deprivation. A meaningful change in the social climate would depend on the announced measures as well as the nature of the commitments that the Government would take before this Committee.

The Government member of Norway, also speaking on behalf of the Governments of Denmark, Finland, Iceland, Netherlands, and Sweden, stated that last year, their Governments had expressed serious concern over the trade union situation in this country and the Government's interference in trade union activities. While noting with great satisfaction the release of Dr. Taye Woldesmiate, they continued to be concerned over the fact that the Government had been referring to the new legislation for over nine years, and that no concrete progress had been made so far. With reference to the draft legislation, it was indicated that the aim was to ensure full respect of the civil liberties essential for the implementation of the Convention. They urged the Government to provide copies of the relevant draft legislation to the ILO as soon as possible. The speaker expressed the firm hope that this draft law would be adopted in the near future, and that it would ensure full conformity with Convention No. 87.

The Government member of Cuba stated that the legislative process and the characteristics of each country should be respected. Ethiopia was an underdeveloped country with serious problems, including war and persistent drought. He indicated that more serious cases than Ethiopia had never been discussed before this Committee. Ethiopia had taken positive steps and therefore no serious measures should be taken against this country.

The Government representative said that the amendment process, as in many countries, had to go through various steps and could not always be accomplished in any country within the time frame set by the Committee. The pace would be even slower in a least developed country like Ethiopia. Despite various constraints encountered by his country the progress that had been made was significant. It was his expectation that the amendment process would be concluded as expeditiously as possible.

In respect of the alleged detention and persecution of individuals, he regretted that unsubstantiated new allegations that had no connection whatsoever with the issues in question and which had not been communicated to his Government were being introduced in this Committee. He declined to reply to these allegations. He reminded the Committee that Dr. Taye Woldesmiate was free to engage in any activity to earn a livelihood like any other Ethiopian citizen. On the issue of the property of the Ethiopian Teachers' Association (ETA), he informed the Committee that the case was currently pending in court and his Government had no authority to intervene in the judicial process. He concluded by stating that the Ethiopian Parliament would adopt the amendments to the Labour Proclamation of Ethiopia as a matter of priority when it convened in September 2003.

The Workers members were pleased to learn from the Government representative that the draft legislation would be adopted by Parliament in September 2003, which made it possible to move forward on this case. Therefore, they would not insist on the reference of this case in a special paragraph of the General Report, but this did not mean that they considered the legislation to be in line with the Convention. This would have to be examined at a later stage. With respect to the Government representative's statement concerning the allegations of practical implementation referred to by the Worker members and the Worker member of Austria, he wished to clarify that these were allegations, and the Office was requested to use its presence in the country to verify these allegations and to either confirm or refute them. Recalling the wish of the Ethiopian trade unions to discuss specific cases with the ILO, which was regular practice in the country, and which was within the scope of the Convention, he reiterated the hope that the Committee of Experts would give more attention to the practical application of the Convention.

The Employer members associated themselves with the comments made by the Worker members, but were more sceptical about the speedy adoption of the amendments. They hoped nonetheless that the draft legislation would finally be adopted by Parliament.

The Government representative stated that the Parliament would certainly adopt the amendment, which would comprehensively address the issues raised, and which this Committee would have before it next year. He totally rejected the issue of "exiled Ethiopians", raised by the Worker members, which had no relevance to this case and which in no way should have been included in the conclusions of the Committee