Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 294, Junio 1994

1. 303. In communications dated 6 and 10 March 1993, the Egyptian Engineers' Trade Union (ESE) presented a complaint of violation of freedom of association against the Government of Egypt.
2. 304. In a communication of 23 May 1993 the Government requested that the complaint be withdrawn. In a letter dated 17 June 1993 the Office pointed out to the Government that the request for the withdrawal of a complaint must be made by the complainant organization which presented and signed the complaint. In a communication of 14 September 1993 the Government sent a letter from the Egyptian Engineers' Trade Union dated 11 September 1993 and signed by the union's president, Mr. Hasaballah Mohammad Al Kafrawi, requesting that the complaint be withdrawn. The Government's communication added that in the light of the request to withdraw the complaint it was no longer necessary to provide observations on the substance of the case.
3. 305. At its November 1993 meeting, the Committee examined the request for withdrawal of the complaint signed by the president of the Egyptian Engineers' Trade union and dated 11 September 1993. In his communication, the president of the union explained that the signatory of the complaint, Mr. Mohammad Ali Beshr, the General Secretary of the ESE, had filed suit challenging the constitutionality of Act No. 100 concerning democratic guarantees for occupational associations, which is the subject of the complaint, but that the administrative court dismissed the suit. In these conditions, the president of the ESE requested that the complaint be withdrawn. The Committee considered that the reasons given for the withdrawal of the complaint did not allow it to forgo examining the substance of the case, and it therefore requested the Government to furnish the corresponding observations. (See 291st Report of the Committee, para. 11, approved by the Governing Body at its 258th Session (November 1993).) In a communication dated 28 February 1994, the Government sent its reply to the allegations.
4. 306. Egypt 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).

A. The complainant's allegations

1. 307. In its communications dated 6 and 10 March 1993, the Egyptian Engineers' Trade Union (ESE) alleges that Act No. 100 on democratic guarantees for occupational associations, adopted on 17 February 1993 undermines the principles of freedom of association, by restricting the right of unions freely to elect their representatives, as guaranteed by Convention No. 87.
2. 308. More specifically, the complainant organization contends that sections 2, 3, 4, 5, 6 and 7 of the Act of 17 February 1993, violate freedom of association by imposing on trade unions obligatory procedures for the election of their leaders. It explains that under these sections, in order for the election of trade union representatives to be valid, it is necessary to obtain a quorum of 50 per cent of the registered union members at the general assembly's first meeting, or a third of these members at a second meeting. In the event that these quorums are not present the trade union is to be managed by a temporary committee composed of judges, which convenes meetings of the general assembly in order to reach the necessary quorum for the election of the leaders. According to the complainant organization, these provisions involve the risk that a judicial committee will control trade union activities temporarily or even permanently.
3. 309. The complainant organization also indicates that following the adoption of the Act 21 trade unions with a combined membership of over 3 million workers (doctors, engineers, lawyers, scientists, and journalists, etc.) tried on several occasions to persuade the Government to amend the Act to bring it in line with Egypt's international obligations. They organized strikes, occupied premises, held demonstrations before the Parliament and carried out an awareness campaign in the media.

B. The Government's reply

1. 310. In its communication of 28 February 1994, the Government explains that Act No. 100 on democratic guarantees for occupational associations was adopted in conformity with the International Labour Organization's principles and standards on freedom of association, and that it is aimed at safeguarding the democratic rights of occupational organizations. The Government states that it will always honour its obligations as a member State of the ILO.

C. The Committee's conclusions

1. 311. The Committee observes that this complaint concerns the alleged incompatibility between certain provisions of Act No. 100 on democratic guarantees for occupational associations, adopted on 17 February 1993, and the principles of freedom of association, and more specifically with the right of trade union organizations freely to elect their representatives, as guaranteed by Convention No. 87. More specifically, the Committee notes that the complainant organization alleges that the violations of the principles of freedom of association are contained in sections 2, 3, 4, 5, 6 and 7 of Act No. 100.
2. 312. As regards section 2 of the Act, the Committee observes that it stipulates that the elections of members of the executive committees of occupational associations are only valid if at least half the registered members take part in the vote; the requirement is lowered to one-third in the case of the second round of voting. As regards section 3, the Committee notes that it provides that in the event that it is not possible to hold an election in conformity with section 2, the organization's administration is handed over to a temporary committee made up of judges and charged with organizing new elections within six months.
3. 313. The Committee also notes that sections 4 and 5 contain provisions respectively concerning the procedure to follow when a trade union post becomes vacant prior to the expiration of its mandate and procedures for the convening of the general assembly with a view to holding an election. As for section 6, the Committee notes that it stipulates that the elections are to be supervised by a judicial commission composed entirely of judges. Finally, the Committee observes that under section 7 voting is a legal obligation and that any member who does not vote without a valid excuse must pay twice the amount of trade union dues in the following year.
4. 314. The Committee first would like to recall the fundamental principle according to which the right of workers' organizations to elect their own representatives freely is an indispensable condition for them to be able to act in full freedom and to promote effectively the interests of their members. For this right to be fully acknowledged it is essential that the public authorities refrain from any intervention which might impair the exercise of this right. (See Digest of decisions and principles of the Freedom of Association Committee, 3rd edition, 1985, para. 295.) There is no doubt that within the meaning of Article 3 of Convention No. 87, the regulation of procedures and methods for the election of trade union officials is primarily to be governed by the trade union's rules themselves.
5. 315. That being said, the Committee has considered acceptable legislation which is designed to promote democratic principles within trade union organizations. (See, for example, 259th Report of the Committee, Case No. 1403 (Uruguay) para. 74.) Taking into account the specific circumstances of this case, the Committee considers that, as long as the legislative provisions aim at preserving the free choice of workers, the provisions of the Act relating to the quorums required (section 2), to the procedure to follow when a union post becomes vacant prior to the expiration of its mandate (section 4) and to the procedures for convening a general assembly with a view to holding elections (section 5), are not necessarily of a nature to give the authorities undue control over the elections. The Committee remains, however, of the opinion that it is usually preferable that these matters be dealt with by the unions' rules.
6. 316. As regards the supervision of elections by a judicial commission (section 6), the Committee here too is of the opinion that there is no violation of the principles of freedom of association, in so far as it has always accepted that the control of trade union elections should ultimately rest with judicial authorities. (See Digest, op. cit., para. 296.) By the same token, the Committee is of the opinion that section 3 of the Act, which entrusts the administration of the organization to a temporary committee in the event the required quorums are not reached, does not violate trade union rights because it establishes guarantees under which the monitoring commission is to be chaired by a judge and assigned only the task of organizing new elections.
7. 317. As regards the legal obligation for the organization's members to vote, the Committee recalls that it is of the opinion that a law which imposes fines on workers who do not participate in trade union elections is not in harmony with the provisions of Convention No. 87. (See Digest, op. cit., para. 318.) The Committee considers that this matter should be left to the unions' rules.
8. 318. Finally, in general, the Committee emphasizes, as the Committee of Experts on the Application of Conventions and Recommendations did in its 1994 General Survey (see Freedom of Association and Collective Bargaining, paras. 114 and 115), that the criterion which should be applied in this field is the risk of arbitrary interference by the authorities in the election process of workers' or employers' organizations. In the Committee's opinion, this criteria can only be fully evaluated by examining the manner in which the Act is applied in practice. The Committee therefore requests the Government to keep it informed on this point and, in particular, on the problems in application which might be raised by the trade union organizations.