Observation (CEACR) - adoptée 2007, publiée 97ème session CIT (2008)

The Committee notes the Government’s report and the draft Labour Code of 2007. The Committee notes with interest that this draft legislation, which was drafted with the technical assistance of the ILO, applies to a significant extent the provisions of the Convention. It further notes the comments submitted by the International Trade Union Confederation (ITUC), which refer to serious violations of freedom of association and collective bargaining in practice, including instances of anti-union violence and the issuance of a directive prohibiting companies in the oil sector from cooperating with members of trade unions. The Committee requests the Government to submit its observations thereon.

Previously, the Committee had taken note of the allegations made by the ITUC in 2006 concerning serious cases of violence and other violations of freedom of association. In this respect, the Committee notes the Government’s statement that it has not set any conditions impeding the setting up of trade unions in Iraq, but rather recognizes all trade union formations without distinction and strives to ensure their independence. The Government further states that certain trade union leaders had fallen victim to terrorist operations and that, although a climate of violence remained the general situation in all sectors of activity, it remained committed to eliminating this serious problem. The Committee, aware of the ongoing process of reconstruction and the climate of violence in the country, takes due note of the above information.

Articles 1 and 3 of the Convention. In its previous comments, the Committee had requested the Government to include in the legislation provisions guaranteeing adequate protection for workers against any acts of anti-union discrimination. In this regard, the Committee notes with interest that several provisions of the draft Code provide for protection against anti-union discrimination. Section 41(1) of the draft Labour Code provides that union membership or participation in union activities shall not constitute valid reasons for termination. Under section 39 of the draft Code, a worker whose employment has been terminated has the right to challenge his or her termination before the Employment Termination Committee or before the labour courts, within a period of 15 days after receiving notification of termination. Section 41(2) of the draft Code provides, moreover, that the Employment Termination Committee and the courts may order reinstatement and back pay in cases of unjust termination; where the worker does not demand reinstatement, or where reinstatement is not feasible, the Employment Termination Committee and the courts may order compensation in an amount at their discretion, provided that such compensation is sufficiently dissuasive so as to punish the unjust termination.

The Committee notes that section 139 of the draft Labour Code also affords protection from acts of discrimination, for limited time periods, to trade union founders and trade union presidents and workers’ representatives, respectively. Section 139(1) provides that any dismissal and any measure short of dismissal whereby a trade union founder has been prejudiced shall be deemed to be anti-union discrimination, and shall be prohibited from the date of the lodging of an application for trade union registration until six months after the trade union has been registered. Similarly, section 139(2) states that protection from anti-union discrimination shall be granted to trade union presidents and workers’ representatives for a period beginning 30 days before the election of the individuals concerned, if notice of their candidature had been given to the employer, and ending either 30 days after the election – if they had not been elected – or six months after the end of the performance of their duties as elected union officials. The Committee further notes that section 139(6) limits the scope of the protection established under section 139(2) to five workers in enterprises employing less than 50 workers, to seven workers in enterprises employing from 50 to 100 workers, and to two additional protected workers for every additional 100 workers employed in the enterprise. Finally, the Committee notes that under section 139(3) all acts of anti-union discrimination shall be deemed to be null and void, and employers found liable for such an offence shall be subject to a fine of 100–500,000 dinars.

The Committee notes, however, that the protections of section 139 do not extend throughout the full course of employment, including at the time of recruitment, and apply only to trade union founders, presidents and workers’ representatives. The Committee additionally notes that sections 41 and 139 do not set out time frames for the completion of anti-union discrimination proceedings, and that, although section 41 states that compensation amounts “sufficiently dissuasive so as to punish dismissals” may be ordered, section 139 does not expressly provide for remedies to fully compensate victims of anti-union discrimination.

As regards adequate protection against acts of anti-union discrimination, the Committee recalls that such protection applies equally to trade union members and former trade union officials as to current trade union leaders, and covers not only dismissals but all measures of anti-union discrimination (transfers, demotions, and any other prejudicial acts). The Committee recalls moreover that the protection provided for in the Convention covers both the time of recruitment and the period of employment, including the time of work termination. Finally, the Committee recalls that the existence of general 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. Hence, the importance of Article 3 of the Convention, which provides that “machinery appropriate to national conditions shall be established, where necessary, for the purpose of ensuring respect for the right to organize …” as defined in Articles 1 and 2 of the Convention. Such protection against acts of anti-union discrimination may thus take various forms adapted to national legislation and practice, provided that they prevent or effectively redress anti-union discrimination (see General Survey of 1994 on freedom of association and collective bargaining, paragraphs 202–224). The Committee requests the Government to take the necessary measures to amend the draft Labour Code so as to ensure for trade union members and representatives adequate protection against acts of anti-union discrimination, in accordance with the principles outlined above.

Article 4 of the Convention. The Committee notes with interest that section 137(1) of the draft Labour Code provides that trade unions shall be entitled to represent their members in relation to any matter involving their collective interests, and to engage in collective bargaining. It additionally notes with interest that under section 141(1) collective bargaining may take place at all levels. The Committee further notes that section 142 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 concerned, or where a request to open collective negotiations has been jointly submitted by several registered trade unions if the latter collectively represent no less than 50 per cent of the workers to whom the collective agreement is to apply. In this connection, the Committee recalls that problems may arise when the law stipulates 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 majority union which fails to secure this absolute majority is thus denied the possibility of bargaining. The Committee considers that under such a system, 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 be granted to all the unions in the unit concerned, at least on behalf of their own members (see General Survey, op. cit., paragraph 242). The Committee requests the Government to take the appropriate steps to amend section 142 of the draft Labour Code accordingly.

Articles 1, 4 and 6. The Committee had previously noted that Act No. 150 of 1987 concerning public servants does not contain any provisions ensuring that the guarantees provided for by the Convention apply to public servants and employees not engaged in the administration of the State. The Committee notes that section 2 of the draft Labour Code includes “workers listed as officials in state and public sector departments” within the scope of the draft Code’s provisions, but excludes “workers listed as civil servants and civil pensioners” from them. In this respect, the Committee recalls that Article 6 authorizes to exclude public servants engaged in the administration of the State from the scope of the Convention and that, in defining this exception, a distinction must be drawn between, on the one hand, public servants who by their functions are directly employed in the administration of the State (government ministry officials, for example) and who may be excluded from the scope of the Convention and, on the other hand, all other persons employed by the Government, by public enterprises or by autonomous public institutions, who should benefit from the guarantees provided for in the Convention (see General Survey, op. cit., paragraph 200). In the light of the above, the Committee asks the Government to indicate the specific categories of workers covered by the term “civil servants and civil pensioners” in section 2 of the draft Labour Code, and to ensure that the draft Code includes a provision recognizing the application of the Convention’s guarantees to all public servants not engaged in the administration of the State.

The Committee expresses the hope that the Government will take the appropriate measures to bring the draft legislation into full conformity with the Convention and requests it to transmit a copy of the Labour Code upon its adoption.