Observación (CEACR) - Adopción: 2008, Publicación: 98ª reunión CIT (2009)

In its previous observation, the Committee took note of comments sent in 2006 and 2007 by the International Trade Union Confederation (ITUC) reporting serious instances of violence and breach of freedom of association and the right to collective bargaining, including instances of anti-union violence and a directive prohibiting companies in the oil sector from cooperating with members of trade unions. In its reply, the Government reiterates that acts of terrorism are indiscriminate in terms of the population they affect, which includes trade union officers. It nonetheless adds that security in the country has improved, that criminal activities are on the decline and that the Government’s plan to establish the rule of law will help to create a more favourable climate for the trade union movement. As for the dispute in the oil sector, the Government states that an amicable settlement was reached following the signing of an agreement by the Ministry of Petroleum and the petroleum unions in Basra. The Committee takes notes of this information and expresses the hope that it will be possible in the near future for trade union rights and the right to collective bargaining to be exercised normally and in observance of fundamental rights, and in a climate free from violence, duress, fear and any kind of threat.

The Committee notes the communication of 29 August 2008 from the ITUC raising a number of legislative issues on which the Committee has already commented and drawing attention to the persistence of the serious violations of freedom of association. The Committee notes the Government’s reply of 18 November 2008 and asks it to comment on the ITUC’s comments concerning arrests, detentions and acts of violence against trade unionists.

The Committee also takes note of the discussions that took place in the Committee on the Application of Standards at the 97th Session of the International Labour Conference (June 2008), on Iraq’s application of the Convention. It notes that the matters discussed included the need to amend certain provisions of the draft Labour Code of 2007 in order to align them more closely with the requirements of the Convention. The Committee notes that in its conclusions, the Conference Committee expressed the firm hope that the draft Code would be amended along the lines requested by the Committee, in full consultation with the social partners, and that it would be adopted without delay. The Conference Committee also called upon the Government to ensure that the laws and practice of the previous regime were no longer applied and expressed the hope that all workers, including public servants not engaged in the administration of the State, would be able fully to enjoy effective protection in accordance with the provisions of the Convention.

The Committee notes that in its report the Government states that the draft Labour Code has been referred to the Consultative Council (Majlis Al-Shura) so that Parliament can examine and adopt it. It also notes the information that the Tripartite Consultation Committee has recommended that a Ministry of Labour representative who took part in that Committee’s discussion should relay its observations to the Consultative Council with a view to determining how they should be implemented to take account of the demands of the national interest. The Committee trusts that the Government will take the necessary steps to ensure that the draft Labour Code is fully in keeping with the requirements of the Convention and that it will take due account to that end of all the following points, which the Committee raised in its previous observation.

Articles 1 and 3 of the Convention. In its previous comments, the Committee noted that the guarantees laid down in the draft Labour Code for protection against acts of anti-union discrimination apply to trade union founders and chairpersons and to trade union officers but not to trade union members. Furthermore, the draft does not establish adequate guarantees against discrimination at the time of recruitment. The Committee also noted that although it covers anti-union dismissals, the draft does not address other adverse measures affecting trade union membership or activities. It pointed out that protection against acts of anti-union discrimination must apply to trade union members as well as union officers, and must cover not only dismissal but any other measure amounting to anti-union discrimination (transfer, demotion and other measures that have adverse effects). Furthermore, the protection provided for by the Convention applies upon recruitment, in the course of employment and at the time of separation. Lastly, the general provisions of the law prohibiting acts of anti-union discrimination are not enough if they are not accompanied by effective and rapid procedures to ensure their application in practice. Protection against acts of anti-union discrimination should therefore be ensured by various means adapted to national law and practice that prevent or effectively redress such acts. The Committee requests the Government to take due account of the principles recalled above and to take the necessary steps to amend the draft Labour Code so as to ensure adequate protection for members of trade unions and trade union officers against acts of anti-union discrimination.

Article 4. In its previous comments the Committee noted that section 142 of the draft Labour Code establishes a duty to bargain in good faith when a request to open collective negotiations has been submitted by a registered union representing no less than 50 per cent of the workers employed at the establishment or enterprise, or where such a request has been submitted jointly by several registered unions representing no less than 50 per cent of the workers to whom the collective agreement is to apply. The Committee pointed out that problems may arise where it is established by law that a trade union must receive the support of 50 per cent of the members of a bargaining unit to be recognized as a bargaining agent: a union that fails to secure this absolute majority is thus denied the possibility of bargaining. It noted that if no union – or group of unions, as provided for in section 142 – covers more than 50 per cent of the workers, collective bargaining rights should not be denied to the unions in the unit concerned, at least on behalf of their own members. The Committee requests the Government to take the necessary steps to amend section 142 of the draft Labour Code accordingly.

The Committee trusts that in its next report, the Government will indicate the progress made in revising the draft Labour Code to bring it fully in to line with the Convention. It hopes that the technical assistance provided by the Office in preparing the draft will be pursued in respect of these matters.

Articles 1, 4 and 6. The Committee has been noting for many years that Act No. 150 of 1987 on public servants which the Government is planning to repeal contains no provisions affording the guarantees established in the Convention (protection against acts of anti-union discrimination and interference and the right to collective bargaining of employment conditions) to public servants and public sector employees who are not engaged in the administration of the State. The Committee notes that in its report, the Government merely states that public sector employees are not subject to the provisions of Act No. 52 of 1987 on trade unions. The Committee observes that the draft Labour Code excludes employees of the public service from its scope. The Government indicated previously – although it provided no legal text – that public servants do have such protection pursuant to the laws and regulations applying to the enterprises and institutions that employ them.

The Committee recalls that Article 6 of the Convention provides that only public servants engaged in the administration of the State may be excluded from the Convention’s scope; all other persons employed by the Government, public enterprises or autonomous public institutions should benefit from the guarantees afforded by the Convention. The Committee notes the information in the Government’s report that, in consultation with the social partners and experts from the Office, a recommendation was drawn up with a view to including in the new Labour Code provisions on the trade union rights of public sector workers, which will give them the rights provided for in Articles 1, 3 and 6 of the Convention. The Committee notes this information and asks the Government to provide information in its next report on all progress made in this respect.

Article 4. Promotion of collective bargaining. The Committee has been commenting for many years on the fact that Act No. 52 of 1987 on trade union organizations contains no provisions to give effect to Article 4 of the Convention. The Committee expresses the firm hope that the draft Labour Code will contain provisions to promote collective bargaining.

Trade union monopoly and interference in trade union activities. The Committee notes that according to a statement made by the Government representative to the Conference Committee on the Application of Standards, Act No. 52 of 1987 established a de facto monopoly of the Confederation of Iraqi Workers’ Unions by forbidding the establishment of other unions or federations. However, according to the Government representative, the Act was in force only on paper, in that since April 2003 other unions have been set up in several sectors notwithstanding the lack of a proper legal framework. The Committee notes that the Conference Committee’s discussions also addressed the need to repeal Decision No. 8750 of 8 August 2005, the provisions of which have been used by the Government to freeze the trade unions’ bank assets.

In the Committee’s view, texts such as these which have not yet been formally repealed can generate uncertainty in law and hinder the development of collective bargaining within the meaning of the Convention and of other trade union activities. The Committee trusts that the Government will shortly indicate that Act No. 52 of 1987 and Decision No. 8750 of 2005 have been formally repealed.