Informe provisional - Informe núm. 372, Junio 2014

1. 125. The complaint is contained in a communication dated 17 May 2013 submitted by the Egyptian Federation of Independent Trade Unions (EFITU), the Egyptian Democratic Labour Congress (EDLC) and the International Union of Food Workers (IUF).
2. 126. The Government forwarded its observations to the allegations in a communication dated 1 September 2013, a communication received on 22 January 2014 and a communication dated 12 March 2014.
3. 127. Egypt has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainants’ allegations

1. 128. In its communication dated 17 May 2013, the complainant organizations allege serious and systematic violations of the right to freedom of association, including legislative issues related to restrictions of the right to strike and of the right to organize and to bargain collectively. They indicate to be deeply troubled that the Government is not taking the necessary steps, in law or in practice, to allow for the establishment of a free and democratic trade union movement. To the contrary, the complainants denounce that the Government appears to be seeking to assert party domination over the trade union movement and allow employers to violate the workers’ right to freedom of association with near impunity.

I. Legal changes under the Morsi Government

1. 129. On 22 November 2012, the Government issued Act No. 96 of 2012 on the Protection of the Revolution. While framed as a tool for prosecuting the officials of the previous regime for the violent crimes committed against protestors during the revolution, the law goes far beyond that purpose. For example, section 4 lists several additional offences of the Penal Code that the special court established by the law may hear. Many of the listed crimes are extremely vague and could be employed to place unacceptable limits on the freedoms of speech, press and assembly – key concerns for workers. Of particular concern are those offences listed in Part 15 of Book Three of the Penal Code. This Part prohibits all workers who perform a public service or work in a public utility from striking and criminalizes efforts of workers to prevent third parties from working. In Part 13 of Book Two, section 167 criminalizes the interruption of traffic, which could also apply in the situation of a labour rally or strike. Under section 5 of Act No. 96/2012, those accused of committing the stipulated crimes may be imprisoned based on a decision by the prosecutor general or his representative for a period of up to six months. The complainants express deep concern at the underlying criminal sanctions in the Penal Code, as well as at their incorporation into this new Act.
2. 130. On 24 November 2012, the Government published an amendment to Act No. 35 of 1976 governing (official) trade unions (Decree No. 97 of 24 November 2012), which in effect ejected persons over 60 years of age from the executive boards of unions. This is a serious act of interference with the fundamental right of workers to elect their representatives and administer their organizations. The decree also provided that new board elections would be held in six months, with the Ministry of Labour empowered to fill any vacancies in the interim period. Workers fear that the Minister will use this power to fill vacancies with representatives close to the Government, putting these unions firmly under its control.
3. 131. The complainants also qualify the new Constitution of 26 December 2012 as deeply troubling. First, it makes no reference to ILO Conventions or any other human rights instrument, nor does the proposed Constitution establish the primacy of ratified treaties over national law. Article 52 recognizes the right of trade unions to form and operate freely and insulates unions against administrative dissolution. However, article 53 limits the extent to which unions are free to organize their structures by providing that only one union may be allowed per profession. The establishment of a single union per occupation rule is inherently undemocratic and has been used in other countries to insulate incumbent, pro-government unions from challenge.
4. 132. Furthermore, article 11 of the new Constitution appears to give the government sweeping powers to “safeguard ethics, public morality and public order” which “shall be regulated by law”. While a state has an obligation to, for example, safeguard public order, there are numerous laws currently in Egypt that far exceed any reasonable exercise of authority and instead infringe on fundamental human rights. Thus, we are deeply concerned that fundamental rights of speech and association may be limited or prohibited. Article 31 forbids insults or showing contempt, which could be broadly interpreted to limit legitimate speech – in a labour context or otherwise.

II. The case of Kraft/Mondelez

1. 133. On 12 March 2011, the Minister of Manpower and Migration in the first post-Mubarak government issued a declaration affirming the right of all workers to establish independent unions and for these unions to function independently of the government or the state controlled Egyptian Trade Union Federation (ETUF). Workers at Kraft Foods’ former Cadbury confectionery plant in Alexandria (now Mondelez International) sought independent trade union representation to represent their interests. For this they were harshly punished. In 2011, 38 workers were forced to accept early retirement after being threatened with dismissal for attempting to establish a union. Despite this, the workers persisted. On 28 April 2012, the workers held a general assembly and formed an independent union joined by 250 of the factory’s 300 workers. The union organized under the banner of the EDLC. Two days later, the union filed its founding documents with the Ministry of Manpower and Immigration in Alexandria.
2. 134. On 14 July 2012, a Government Decree awarded a pay rise (known as the “social allowance”) of 15 per cent to public sector workers and a 10 per cent increase to private sector workers. Section 1 of the Decree states clearly that the July increase is calculated based on “the basic salary on 30 June 2012” thus precluding previous salary increases taking the place of the decreed July 2012 increase. Section 4 makes it clear that other pay increases cannot substitute for the July allowance.
3. 135. On 26 July 2012, just before the end of the first shift, an unsigned notice printed on plain paper was posted on the factory bulletin board announcing that the company would not pay the social allowance decreed by the government. When workers arriving for the second shift asked for an explanation and a discussion with management, management refused – and most management staff left the plant. Only when a group of workers on the night shift of 26–27 July stopped work to protest against the management’s refusal to comply with the Decree awarding a 10 per cent pay increase to private sector workers did the factory management contact members of the union’s executive committee, ordering them to put an end to the spontaneous protest. Workers arriving for the third (11 p.m.–8 a.m.) shift came to work and were told the company had refused to discuss the notice with workers or their union representatives. Some 85 workers on that shift demonstrated inside the factory until the end of the shift, calling on management to meet with their union representatives to discuss the notice and the wages issue. When the spontaneous protest began at the start of the third shift, management called union leaders on their mobile phones, telling them to get people back to work. At least one of the five union leaders who were later suspended went to the factory around midnight but found the gates locked and was unable to gain access to meet the workers inside.
4. 136. On 30 July 2012, the union’s five founding board members were suspended, although the protest action had been a spontaneous response to management’s refusal to explain or discuss the notice they had put up denying the increase. On 8 August, the five union officials were informed that they were dismissed despite the fact that some were not even present on the night shift, and their cases referred to the Labour Court. On 15 August, the four remaining union officials approached the Managing Director with a request to resolve the issue through union-management discussions but the latter refused saying that he would not agree if the Labour Court ordered reinstatement. Other members of management staff echoed his confrontational position, and the factory manager threatened workers with dismissal. Since then, management has continued to reject recognition and dialogue.
5. 137. Meanwhile, repression spread out to the Kraft/Mondelez factory in Tenth of Ramadan City near Cairo where workers had also formed an independent union. Union members were told that management was taking legal measures to dissolve their organization – a clear attempt to intimidate them from either supporting the workers in Alexandria or taking action on their own behalf.
6. 138. The complainants recapitulate that the management of the Alexandria plant engaged in no meaningful discussion with the newly-formed union representing a large majority of its workforce – until it frantically instructed union leaders to stop a spontaneous demonstration on the night shift. After that it proceeded to sack the key leaders, and refused to negotiate with those who remained. This was followed by management intimidation of the independent union at the Tenth of Ramadan factory.
7. 139. The complainants report that the management’s policy of intimidating union members and supporters at the Alexandria factory continues. In two waves, on 3 March and 3 April 2013, a total of 35 workers from the Alexandria plant were transferred to the factory at Borg el Arab, 45 km from Alexandria with 12-hour shifts. The 35 workers were all known union supporters, including workers who had given testimony at the court proceedings over the dismissal of the five union leaders. They were the only workers transferred from Alexandria to Borg el Arab.
8. 140. The forced retirement of workers in 2011 and the suspension and dismissal of the five union officials at the Kraft/Mondelez Alexandria factory for exercising legitimate trade union activity constitute an obvious violation of the principles of freedom of association, just like the threats to dismiss additional workers. In Egypt, the company justifies its actions in the name of local law and practice which are sharply at variance with international human rights standards. The fact that the union was not registered by the government due to its independent nature and thus unable to exercise lawfully any of the labour rights under Egyptian law does not deprive the workers of their international right to associate or carry out their trade union activities. Moreover, the employer’s retaliation against the workers merely for having testified in a judicial proceeding strikes a further blow, and will likely limit the ability of the court to hear from all relevant witnesses and thus to give the dismissed workers a fair hearing. Failure by the state to punish this act could send a strong signal to other workers not to participate in the judicial process, making it even easier to dismiss workers. The complainants find it particularly troubling that the dismissed unionists are unable to accept alternative employment because doing so would constitute a breach of their contracts with Mondelez. Thus, the workers are essentially condemned to starve.

III. Broken industrial relations and anti-union discrimination without effective recourse

1. 141. The complainants denounce that the Government has made no progress in addressing the repeated observations of the ILO Committee of Experts on the Application of Conventions and Recommendations (CEACR) with regard to Conventions Nos 87 and 98, both of which Egypt ratified over 50 years ago. The allegations presented above are emblematic of a widespread and systematic problem in industrial relations in Egypt. The root of the problem is that there are simply no legitimate and legally recognized representatives of workers. The trade union monopoly, which has existed for decades, remains firmly entrenched in law and practice. Thus, many companies today refuse to deal with independent trade unions, in part because of their ambiguous legal status. Many leaders and members of independent unions have been fired or transferred to remote locations or otherwise penalized or abused. In such cases, the management often refers to the absence of legal protection for unions not subject to Act No. 35 of 1976 – namely independent unions – in retaliating against them. The Ministry of Manpower has consistently failed to register new, independent trade unions.
2. 142. According to the complainants, some government departments and public sector companies still compulsorily deduct dues from workers and send the money to ETUF’s affiliates. Some have retaliated when workers requested that these deductions be stopped or directed to the independent trade unions in which they are members. Many public sector workers are not allowed to renounce their compulsory membership to ETUF’s affiliates. This membership is also tied to rights and benefits that they receive, such as medical services and supplementary insurance funds.
3. 143. The complainants then provide several snapshot cases to the Committee and specify that this is not being done for the Committee to render conclusions concerning those cases but rather to illustrate the severity of the situation and the need for sweeping legal reforms. With reference to these snapshot cases, the complainants conclude that industrial relations are in crisis in Egypt. In view of the failure of employers to recognize or to negotiate with legitimate, independent unions, workers often have no other option to overcome employer resistance but to engage in strikes or sit-ins in order to bring employers to the table. While the right to strike is recognized in the new Constitution and in the Labour Act 12/2003, legal strikes remain tied to the trade union monopoly. Thus, collective actions by independent unions are de jure illegal, forcing them to undertake thousands of wildcat strikes. If the union’s collective action is successful in encouraging the employer to bargain, employers rarely comply with what has been negotiated. Management often suspends or dismisses those who participated in the collective action, and, in some cases, armed thugs are hired to threaten and attack workers engaged in collective action. This situation benefits none of the social partners and is likely to continue unless and until the government moves forward with legal reforms necessary to align national law with the requirements of Conventions Nos 87 and 98. The Government must urgently, and in consultation with worker and employer representatives, establish a system that recognizes independent workers’ organizations, ensures that the traditional trade unions can freely elect their representatives, gives all unions protection from anti-union discrimination and interference and provides for legally enforceable collective agreements.
4. 144. The complainants emphasize that they have provided ample evidence that the labour laws of Egypt must be reformed immediately and in full compliance with ILO Conventions. Otherwise, industrial relations in Egypt will only further deteriorate – serving none of the social partners. In particular, the complainants request:
   • (i) repeal of Act No. 96/2012 and a full examination of Egypt’s Penal Code to ensure that it is in full conformity with principles of freedom of association;
   • (ii) repeal of Decree No. 97/2012 amending Act 35/1976 and removal of any officers appointed by the Minister under that decree;
   • (iii) amendment of article 53 of the Constitution to eliminate the limitation to one federation per sector;
   • (iv) measures to ensure that the trade union at Mondelez is immediately recognized, that management enter into good faith negotiations for a collective agreement, and that all trade unionists forced to retire or dismissed are reinstated and compensated back wages and any other benefits established under Egyptian law;
   • (v) drafting, in consultation with the trade unions, and immediate adoption of, an ILO compliant trade union law, which in particular confers full legal rights on independent trade unions.

B. The Government’s reply

1. 145. In a communication dated 1 September 2013, the Government states that, following the success of the Egyptian revolution of 25 January 2011, and the revolutionary expansion of 30 June 2013 entailing the collapse of the Muslim Brotherhood regime, the Arab Republic of Egypt is still in transition. At this stage, a roadmap has been drawn up, including the abrogation of the December 2012 Constitution, which was not truly agreed upon in society, the establishment of a Committee to amend the existing Constitution and a referendum for these constitutional amendments. Besides, expressing the main demands of the revolution, an interim President of the Republic has been appointed, and a new Ministry of Labour has been formed, which is working to achieve transitional and social justice for the entire spectrum of society. It is sought to realize people’s demands through the election of members of the People’s Assembly and a new President of the Republic within a period from six to nine months. In a communication received on 22 January 2014, the Government adds that the new Constitution of 2014 guarantees all workers’ rights, especially in its articles 9, 11–15, 17, 73, 76, 77 and 93. The necessary measures are currently being taken to promulgate new trade union and workers legislation, which was reviewed by the International Labour Office and considered to be satisfactory, and which addresses all matters which were criticized by trade unions in Egypt. The Government emphasizes that the present complaint relates to the former regime and that all the shortcomings alleged in the complaint have not been repeated under the present regime.
2. 146. With regard to the Kraft/Mondelez case, the Government indicates, in its communication dated 1 September 2013, that, according to the relevant labour office, the members of the executive committee of the independent trade union submitted complaints to the labour office on 8 August 2012. However, as no out-of-court settlement could be reached, these cases were referred to justice on 30 August 2012. The persons concerned are: Mohamed Hussain Mustafa (Complaint No. 330); Mohamed Abu Elala Mohamed (Complaint No. 331); Mohamed Hassan Ahmad (Complaint No. 332); Nasr Awad Abderahim (Complaint No. 333); and Hussain Ahmad Hussain (Complaint No. 334).
3. 147. As for the complainants’ general allegations concerning workers’ conflicts in various enterprises with independent trade unions, the Government provides information according to which in the majority of the enterprises concerned the complaints have been referred to justice, and nine are currently under judicial review. In its communication dated 12 March 2014, the Government submits further updated information concerning the snapshop cases provided by the complainants.

C. The Committee’s conclusions

1. 148. The Committee notes that, in the present case, the complainant organizations allege serious and systematic violations of the right to freedom of association, including legislative issues related to restrictions of the right to strike and interference in election processes, and of the right to organize and to bargain collectively.
2. 149. The Committee notes that the complainants denounce that the following legislation violates the principles of freedom of association: (i) Act No. 96/2012 on the Protection of the Revolution carries over certain Penal Code offences (e.g. prohibition for all workers who perform a public service or work in a public utility from striking, criminalization of efforts of workers to prevent third parties from working during a strike, criminalization of the interruption of traffic, etc.); (ii) Act 35/1976 as amended on 24 November 2012 removes persons over 60 years of age from the executive boards of unions and provides that new elections will be held in six months empowering the Ministry of Labour to fill any vacancies in the interim period; (iii) article 53 of the Constitution of 26 December 2012 provides that only one union may be allowed per profession; article 11 grants the Government sweeping powers to “safeguard ethics, public morality and public order”; and article 31 forbids insults or show of contempt; and (iv) the absence of legal recognition and protection for new, independent unions not subject to Act No. 35 of 1976 leads, in practice, to the refusal by many companies to recognize and negotiate with newly created independent enterprise trade unions, subsequent strike action (considered de jure illegal) and, as a result, the dismissal, suspension, transfer to remote locations or otherwise penalization of many leaders and members of independent unions; in this regard, the Committee notes several snapshot cases (18) supplied by the complainants to exemplify the systematic nature of these violations and to illustrate that there is a severe and widespread problem in industrial relations in Egypt and a need for far-reaching legal reforms (all cases concern dismissal or other prejudicial measures allegedly imposed as a result of strike or other legitimate trade union activity).
3. 150. The Committee notes the Government’s indications that: (i) following the revolution of 25 January 2011 and the developments of 30 June 2013, the country is still in transition (interim President of the Republic, new Ministry of Labour, elections to be held within six to nine months); (ii) that a roadmap has been drawn up, including the abrogation of the December 2012 Constitution, the establishment of a Committee to amend it and a referendum for these constitutional amendments; (iii) the new 2014 Constitution guarantees, according to the Government, all workers’ rights, especially in its articles 9, 11–15, 17, 73, 76, 77 and 93; and (iv) the necessary measures are currently being taken to promulgate new trade union and workers legislation, which was reviewed and considered to be satisfactory by the International Labour Office and addresses all matters criticized by trade unions in Egypt. As regards the snapshot cases, the Committee welcomes the detailed and specific information provided by the Government and notes in particular that, in the majority of the enterprises concerned, the complaints have been referred to justice, and nine are currently under judicial review.
4. 151. While taking due note of the Government’s view that this complaint relates to the former regime and that all the shortcomings alleged in the complaint have not been repeated under the present regime, the Committee cannot but regret that, despite the Declaration of 12 March 2011 affirming the right to freedom of association, the Government has to date yet to adopt the necessary legislative framework to ensure full legal recognition to the numerous newly formed independent unions, which has apparently had disastrous effects on industrial relations in practice. Recalling that the right of workers to establish organizations of their own choosing implies, in particular, the effective possibility of forming, in a climate of full security, organizations independent both of those which exist already and of any political party [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 311], the Committee welcomes that, according to the information submitted by the Government under article 22 of the ILO Constitution, the final draft Law on trade union organizations and protection of the right to organize abandons the single trade union system and recognizes trade union pluralism. The Committee firmly expects that the draft law will be adopted as a matter of priority giving clear legislative protection to the numerous newly formed independent trade unions and ensuring full respect for freedom of association rights (including the right of these organizations to freely elect their representatives, organize their administration and activities and bargain collectively). In particular, recalling that anti-union discrimination is one of the most serious violations of freedom of association, as it may jeopardize the very existence of trade unions, the Committee expects that the law will guarantee comprehensive and effective protection against anti-union discrimination of all leaders and members of the new independent unions. It requests the Government to transmit a copy of the law once adopted.
5. 152. As regards Act No. 96/2012 as well as the corresponding provisions of the Penal Code, the Committee emphasizes that the right to strike may be restricted or prohibited in the public service only for public servants exercising authority in the name of the State. It also recalls that taking part in picketing and firmly but peacefully inciting other workers to keep away from their workplace cannot be considered unlawful; the case is different, however, when picketing is accompanied by violence or coercion of non-strikers in an attempt to interfere with their freedom to work. The Committee also reiterates that the right to express opinions through the press or otherwise is an essential aspect of trade union rights, and that workers should enjoy the right to peaceful demonstration to defend their occupational interests; trade unions must however conform to the general provisions applicable to all public meetings and must respect the reasonable limits which may be fixed by the authorities to avoid disturbances in public places [see Digest, op. cit., paras 133, 144, 155 and 651]. The Committee therefore requests the Government to repeal or amend the relevant provisions of the Penal Code so as to guarantee full respect of the principles enunciated above, and to ensure that their application in practice does not impede the legitimate exercise of trade union rights. As for Act No. 96/2012, the Committee understands that it has since been repealed and replaced with another Act on organizing demonstrations and requests the Government to provide detailed information in this regard and a copy of the new law. The Committee, recalling the importance it attaches to the right of workers to elect their representatives in full freedom without any interference from the public authorities, also requests the Government to take the necessary steps to repeal Decree No. 97/2012, which amended Act No. 35/1976 in a manner so as to ban the election of union officials of retirement age and empowered the Government to fill vacancies. Furthermore, the Committee notes the amendments to the Constitution of 26 December 2012 approved by referendum on 14 and 15 January 2014, and generally expects that the constitutional provisions are not applied in such a manner as to restrict the legitimate exercise of the freedoms of speech, assembly and association.
6. 153. Moreover, the Committee notes the complainants’ specific allegations concerning violations of trade union rights at the enterprise Kraft/Mondelez, including allegations of acts of anti-union discrimination in 2011 (compulsory retirement of 38 workers for attempting to establish an independent union), 2012 (dismissal of five leaders of the independent union following a work stoppage and demonstration) and 2013 (transfer of 35 known union supporters and workers having given testimony at the court proceedings over anti-union dismissals). The Committee notes the Government’s indication that the members of the executive committee of the relevant independent trade union (Mohamed Hussain Mustafa, Mohamed Abu Elala Mohamed, Mohamed Hassan Ahmad, Nasr Awad Abderahim and Hussain Ahmad Hussain) submitted complaints to the labour office on 8 August 2012 and that, since no out-of-court settlement could be reached, these cases were referred to justice on 30 August 2012.
7. 154. While acknowledging the challenges created for workers and companies in a general environment where the State does not officially recognize the newly formed free and independent trade unions, the Committee nonetheless recalls that one of the fundamental principles of freedom of association is that workers should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment, such as dismissal, demotion, transfer or other prejudicial measures. This protection is particularly desirable in the case of trade union officials because, in order to be able to perform their trade union duties in full independence, they should have a guarantee that they will not be prejudiced on account of the mandate which they hold from their trade unions. The Committee has considered that the guarantee of such protection in the case of trade union officials is also necessary in order to ensure that effect is given to the fundamental principle that workers’ organizations shall have the right to elect their representatives in full freedom. Furthermore, the Committee wishes to emphasize that protection against acts of anti-union discrimination should cover not only hiring and dismissal, but also any discriminatory measures during employment, in particular transfers, downgrading and other acts that are prejudicial to the worker. The Committee reiterates that not only dismissal, but also compulsory retirement, when imposed as a result of legitimate trade union activities, would be contrary to the principle that no person should be prejudiced in his or her employment by reason of trade union membership or activities [see Digest, op. cit., paras 799, 781 and 793].
8. 155. Further to its general considerations concerning the need to provide clear legislative recognition and protection to all new independent unions, the Committee therefore requests the Government, in view of the apparent systematic resort to acts of anti-union discrimination at the abovementioned company and the number of workers allegedly affected, to also initiate an independent investigation into the abovementioned allegations, and to keep the Committee informed of its outcome. The Committee further requests to be kept informed of the final outcome of the ongoing judicial proceedings referred to by the Government over the five alleged anti-union dismissals of union officials in 2012 and of all measures of redress taken. Should it be found (during the investigation or the court proceedings) that the relevant trade union leaders and members were dismissed or otherwise prejudiced due to their exercise of legitimate trade union activities (including founding a new union or calling industrial action) or on account of their union affiliation, the Committee requests the Government to take the necessary measures to ensure that they are fully reinstated without loss of pay or transferred back to the original duty station. In the event that reinstatement or re-transfer is not possible for objective and compelling reasons, the Committee requests the Government to take the necessary measures to ensure that the worker concerned is paid adequate compensation which would constitute a sufficiently dissuasive sanction for anti-union discrimination.