Demande directe (CEACR) - adoptée 2010, publiée 100ème session CIT (2011)

Comments from the ITUC. The Committee notes the comments submitted by the International Trade Union Confederation (ITUC) on 24 August 2010 concerning issues already under examination by the Committee, in particular relating to the absence of independent trade unions. The Committee requests the Government to provide its observations in reply to the ITUC’s comments.

Act No. 23 of 1998 on trade unions, federations and professional associations. For several years, the Committee has been making comments on the need to amend a number of provisions of Act No. 23 of 1998 on trade unions, federations and professional associations. The Committee observes that in its report, the Government indicates as a general statement that the Committee’s comments will be taken into account when amending Act No. 23, and that regulations putting into effect the Act will also be reviewed by the competent authority (the secretariat of the General People’s Congress) accordingly. The Committee expresses the firm hope that the Government will provide in its next report detailed information on steps taken to amend the relevant provisions of Act No. 23 of 1998 and any regulation issued thereof on the following issues.

Article 2 of the Convention. Right of workers and employers without distinction whatsoever to establish and join organizations of their own choosing. Foreign workers. With regard to trade union rights of foreign workers, the Committee recalls that its previous comments referred to the need to amend Act No. 23 of 1998, as well as to amend section 9 of Act No. 20 of 1991 on the promotion of liberty. The Committee requests the Government to amend Act No. 23 of 1998 with regard to foreign workers’ access to executive boards of trade unions, as well as to take the necessary measures to amend section 9 of Act No. 20 of 1991 so as to expressly provide for the right of foreign nationals to establish or join trade unions or delete the specific reference to Libyan citizens or nationals with regard to the right to establish and join trade unions.

Trade union monopoly. The Committee had previously requested the Government to amend section 2 of Act No. 23 of 1998 by explicitly removing the prohibition of the establishment of more than one trade union or association in the same occupation, so as to give full effect to the right of workers to establish and join organizations of their own choosing, including more than one union in a given occupation. The Committee requests the Government to take the necessary steps to amend section 2 of Act No. 23 of 1998.

Minimum membership required to register a trade union. In its previous comments, the Committee had noted the minimum membership of 100 workers is required for a trade union to be registered under section 120 of the Labour Code. It had also noted the Government’s indication that section 1 of the regulations issued pursuant to Act No. 23 of 1998 had fixed 100 members as a minimum membership requirement, whereas the legislature had authorized a membership of 50 workers to set up a basic trade union in productive and service units so as to encourage the success of trade union activity. Consequently, the Committee had requested the Government to take the necessary measures to modify the law and regulations so as to reduce the minimum number of members required to form a union to a reasonable level. The Committee observes that the report of the Government provides no information on steps taken in this regard and requests once again the Government to amend its law and regulations so as to reduce the minimum number of members required to form a union to a reasonable level.

Trade union registration. The Committee once again requests the Government to transmit the texts of any regulations issued under Chapter XIX of Act No. 23 of 1998 which governs the registration of trade unions, as well as the standard registration form mentioned therein.

Article 3. Right of workers’ and employers’ organizations to organize their administration. The Committee had previously noted that section 9 of Act No. 23 of 1998 provides for the structure of trade unions and, moreover, that sections 1, 2, and 3 of the regulations putting this section into effect clarify this structure. It noted, in this respect that, according to section 9 of Act No. 23, conferences of trade unions, trade union federations and professional associations shall hold annual meetings for the discussion and examination of items that lie before them. While noting that the report of the Government does not provide any information in this regard, the Committee once again requests the Government to submit a copy of the regulations putting into effect section 9 of Act No. 23 of 1998.

Right to elect representatives in full freedom. In relation to the eligibility requirement for a trade union office, the Committee had previously noted the Government’s statement that the enforcing regulations of section 8 of Act No. 23 of 1998 require members of a trade union’s secretariat to hold office for a minimum period of four years. The Committee had recalled that provisions which require all candidates for trade union office to belong to the respective occupation, and to be actually employed in this occupation during a certain period before their election, interfere with the members’ right to elect representatives in full freedom, for example, by preventing qualified persons such as full-time union officers or pensioners from carrying out union duties or by depriving unions of the benefit of the experience of certain officers when they are unable to provide enough qualified persons from among their own ranks. While noting that the report of the Government does not provide any information in this regard, the Committee once again requests the Government to amend the enforcing regulations of section 8 of Act No. 23 of 1998 according to the principles mentioned above.

Eligibility subject to a nationality. The Committee had previously noted that the regulations putting into effect section 8 of Act No. 23 of 1998 stipulate Libyan nationality as a condition for membership of the secretariat of a trade union. It had recalled that, where provisions on nationality are too strict, they could deprive certain categories of workers, like migrant workers in sectors where they account for a significant share of the workforce, from the right to elect their representatives in full freedom. The Committee had also recalled that foreign workers should be allowed to take up trade union office at least after a reasonable period of residence in the host country (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 118). While noting that the report of the Government does not provide any information in this regard, the Committee once again requests the Government to take the necessary measures to amend the regulations relating to section 8 of Act No. 23 of 1998 in order to allow foreign workers to take up trade union office.

Right of representative organizations to organize their administration and to formulate their programmes. The Committee had previously noted that the following provisions of Act No. 23 of 1998 tend to over-regulate matters that should be left to the trade unions themselves and their by-laws, and therefore entail a risk of interference by the public authorities in trade union activities:

–           section 15 spells out in detail the rules on the basis of which trade union subsidiary offices will be supervised by the trade union secretariat;

–           section 19(4) authorizes the public authorities to issue regulations on the rules and conditions governing the establishment of subsidiary offices by trade unions; and

–           section 12 authorizes the public authorities to issue regulations on the rules and conditions according to which the trade union conference will examine any violations of the law committed by the trade union secretariat.

The Committee had previously requested the Government to consider repealing the abovementioned provisions and any regulations which might have been issued under them. The Committee notes that the Government indicates that section 15 provides for an internal review process that does not involve the intervention of any body, and in particular of the State. Concerning section 19(4), the Government indicates that it is the basic statutes of trade unions which decide on entrusting them with the task of formulating rules and conditions specific to the establishment of subsidiary offices. Finally, as regards section 12, the Government asserts that it is not the State but the congress or the general assembly of the trade union itself which takes decisions to examine violations of the law committed by the secretariat, and that regulations applying section 12 recall that the State does not intervene in the process. While it takes due note of the Government’s statement, the Committee is however of the opinion that the particulars contained in sections 12, 15 and 19(4) of Act No. 23 tend to over-regulate the internal functioning of trade unions and may pose a serious risk of interference by the public authority. The Committee considers that more autonomy should be left in regard to the matters concerned to the trade unions themselves. Consequently, the Committee once again requests the Government to consider repealing sections 12, 15 and 19(4) of Act No. 23 of 1998 and any regulations which might have been issued under them and requests the Government to provide information on the progress made in this respect.

Conciliation and arbitration procedure. In its previous comments, the Committee had noted that, according to section 150 of the Labour Code, the previous exhaustion of all conciliation and arbitration procedures is a condition for a lawful strike and that section 176 imposes a penalty of imprisonment of one month or a fine against any person who contravenes this provision. The Committee had noted that the conciliation and arbitration procedures, as laid down in sections 138–146, apply to cases of “collective labour disputes” where the dispute involves 40 per cent of workers in the undertaking, establishment, factory or branch of activity. These procedures, moreover, may be launched at the initiative of one of the parties to the dispute and include, after an initial period of mediation, compulsory recourse to arbitration, the outcome of which is binding on the parties who, according to section 146, are not entitled to raise the matter again for two years. The Committee had also observed that section 151 allows a strike only if one of the parties fails to give effect to a final settlement reached in accordance with the abovementioned procedures, and that section 177 imposes a fine against any person who goes on strike in violation of this provision. The Committee notes that in its report the Government indicates that Act No. 12 of 2010 which relates to labour relations has reduced the percentage from 40 per cent to 25 per cent of workers in the undertaking for cases of “collective labour disputes” where the conciliation and arbitration procedures apply. Furthermore, the Government indicates that the new Act transfers the resolution of labour conflicts to the Conciliation Council and Arbitration Board, and that regulations clarify procedures governing this point. Other regulations putting the Act into effect are being prepared. The Committee requests the Government to provide a copy of Act No. 12 of 2010, as well as all regulations putting it into effect, in particular those in relation to conciliation and arbitration procedures.