Demande directe (CEACR) - adoptée 2004, publiée 93ème session CIT (2005)

The Committee notes the information contained in the Government’s report.

Articles 1 and 2 of the Convention. 1. In its previous comments, the Committee had requested the Government to take the necessary steps to amend section 23 of the Labour Proclamation, which protects against dismissal linked with trade union membership or trade union activities, so as to broaden the protection and guarantee workers’ protection against acts of anti-union discrimination at the time of recruitment and in relation to other acts of anti-union discrimination. The Committee notes that the Government states in its report that section 120(7) of the Proclamation provides that a collective labour dispute may include complaints directed against steps taken by the employer on promotion, job transfer and training of employees and that this provision suffices to tackle the issue.

The Committee recalls that the Eritrean Labour Proclamation prohibits anti-union discrimination in section 23, which provides that an employee’s membership of a trade union may not constitute a legitimate ground for the termination of a contract of employment, and in section 118, which prohibits employers discriminating between employees as to conditions of work on the grounds of membership or involvement in an association of employees. Recalling that the Convention requires protection against anti-union discrimination to cover recruitment and all prejudicial acts during the course of employment, including dismissal, transfer, relocation, demotion, deprivation and restrictions of all kinds (see General Survey on freedom of association and collective bargaining, 1994, paragraph 212), the Committee once again requests the Government to take the necessary steps to ensure that workers are protected against anti-union discrimination in relation to both recruitment and during the course of employment, in addition to the current protection against dismissal for anti-union discrimination. The Committee requests to be kept informed in this regard.

2. The Committee had further requested the Government to take the necessary measures to provide for stronger sanctions in the case of anti-union discrimination or acts of interference, as it considered a fine of 1,200 nafka set out in section 156(3) of the Labour Proclamation, which refers to section 118, did not afford adequate protection. The Committee notes the Government’s information that section 156 of the Labour Proclamation involves only petty offences and when the offence becomes severe, the penalty will be increased. The Government points to section 154, which states that the penalties in the Labour Proclamation only apply unless the provisions of the Penal Code provide for more severe penalties, and concludes that whenever the offence becomes severe or repeated, the provisions of the Transitional Penal Code become applicable. The Government further refers to section 691 of the Penal Code which states that a person commits a petty offence when he infringes the mandatory or prohibitory provisions of a regulation, order or decree lawfully issued by a competent authority and such infringement is subject to one of the penalties.

Recalling that the existence of general legislative provisions prohibiting acts of anti-union discrimination is not enough if they are not accompanied by effective and rapid procedures to ensure their application in practice (see General Survey, op. cit., paragraph 214), the Committee requests the Government to provide further information concerning the means and method by which an offence is deemed to become severe, and so attracts higher penalties, and to consider amending the legislation to provide that any acts of anti-union discrimination are prima facie deemed to be severe. The Committee further requests the Government to indicate in its next report whether by referring solely to breaches by employers’ associations, section 156 of the Proclamation only provides for sanctions against employers’ organizations and not against individual employers who may or may not be members of organizations.

Articles 1, 2, 4 and 6. 1. In its previous comments, the Committee had requested the Government to indicate whether domestic employees enjoy trade union rights, given that section 40 of the Labour Proclamation entitled the Minister to determine which provisions of the Proclamation would apply to those workers. The Committee is pleased to note the Government’s clarification that the Ministry of Labour and Human Welfare does not have any intention of excluding domestic employees from their rights to organize and collectively bargain and that the Ministry will not refrain from including the rights mentioned in the Convention in the upcoming regulation. The Committee expresses the strong hope that the Ministry will issue a regulation in the nearest future that ensures that domestic employees are entitled to exercise their trade union rights guaranteed under Conventions Nos. 87 and 98, and requests to be provided with a copy of the regulation upon its issuance.

2. The Committee had further requested the Government to ensure that public servants not engaged in the administration of the State benefit from the guarantees of the Convention in particular through legal provisions such as the draft Civil Service Code, and had requested the Government to provide a copy of the draft Code, to inform it on its status, and to transmit a copy of it once it was adopted. The Committee notes the information provided by the Government that the draft Civil Service Proclamation granted civil servants the right to organize and that the Civil Service Administration had been working on the draft Civil Service Proclamation through a process of participation and interaction, and relevant and salient comments of the participants were integrated in the final draft. The Committee regrets to note that the Government has neither provided it with a copy of the final draft of the Proclamation, nor has it indicated its progress in the legislative system, and accordingly repeats its previous request to the Government to ensure that public servants not engaged in the administration of the State benefit from the guarantees of the Convention and to keep it informed in this regard. In particular, the Committee requests the Government to provide specific information concerning the status of the draft Civil Service Proclamation and to transmit a copy of the draft, as well as any enacted Proclamation.