Observation (CEACR) - adoptée 2019, publiée 109ème session CIT (2021)

Repetition

Legislative issues. The Committee recalls that since its first examination of the application of the Convention in Eritrea in 2002 it had focused on a number of legislative issues and requested the Government to amend the legislation or adopt additional laws and regulations in order to address the following matters:

• – Articles 1 and 2 of the Convention. Protection against anti-union discrimination and acts of interference. The Committee had noted that the 2001 Labour Proclamation does not provide for an adequate protection against anti-union discrimination and acts of interference in terms of period of protection, the persons protected and the sanctions and remedies provided in law, and had requested the Government to amend the Proclamation so as to strengthen the protection against anti-union discrimination and acts of interference.
• – Articles 1, 2 and 4. Domestic workers. The Committee had noted that the Labour Proclamation does not explicitly grant the rights set out in the Convention to domestic workers as section 40 thereof entitles the Minister to determine by regulation the provisions of the Proclamation that apply to these workers. The Committee had expressed the hope that the guarantees enshrined in the Convention will soon be explicitly afforded to domestic workers by way of a regulation.
• – Article 6. Public sector. The Committee had noted that the civil servants in the Central Personnel Administration who are not engaged in the administration of the State are excluded from the scope of the Labour Proclamation and had requested the Government to explicitly recognize their rights to protection against anti-union discrimination and acts of interference, as well as their right to negotiate collectively their conditions of employment in the new Civil Service Proclamation.

The Committee notes that the Government: (i) recognizes that legislative measures should be taken as requested by the Committee in order to ensure adequate protection against anti-union discrimination and acts of interference but that the amendment process has not yet been finalized and the Ministry of Labour and Human Welfare intends to conduct a tripartite workshop aiming at finalizing the drafting process; (ii) with regard to domestic workers, indicates that giving effect to section 40 of the Labour Proclamation requires sufficient time and skill, and the new Civil Code contains certain provisions linked with the rights of domestic workers servants under the Convention, without however providing the text of the relevant provisions of the new Civil Code; and (iii) states that the draft Public Service Code has not been enacted yet either. The Committee notes that the Government replies concerning the legislative issues highlighted in the Committee’s comments reveal institutional shortcomings that have hindered the conclusion of drafting and enactment process of new legislation for many years. The Committee notes in this regard that the United Nations Commission of Inquiry on Human Rights in Eritrea had found that “since there is no legislation that regulates law-making procedures, codes, decrees and domestic legislation is prepared and adopted in the absence of a clear, transparent, consultative and inclusive process. Nobody really knows the procedure leading to the enactment of legislation or the author of a specific decree” (A/HRC/29/CRP.1, 5 June 2015, paragraph 299). The Committee further notes that in her latest report, the Special Rapporteur on the Situation of Human Rights in Eritrea, appointed by the United Nations Human Rights Council, informs the Council that there is still no parliament in Eritrea where laws could be discussed and questions of national importance debated (A/HRC/38/50, 25 June 2018, paragraph 28). The Committee notes that the institutional standstill described in the Special Rapporteur’s report does not favour the imminent adoption of new legislation. The Committee therefore urges the Government to take all the necessary measures so that the processes of drafting and enacting new legislation with a view to ensuring the conformity of Eritrean law with the Convention can be successfully brought to conclusion. The Committee further encourages the Government to seek the technical assistance of the Office with a specific focus on the issues raised in this observation.

Articles 4, 5 and 6. Promotion of collective bargaining. Compulsory national service. The Committee notes that pursuant to articles 19 and 30 of the National Service Proclamation (No. 82/1995), the Eritrean nationals performing work within the framework of national service are subject to martial law and regulations and that article 3 of the Labour Proclamation of Eritrea excludes members of the military, police and security forces from the scope of labour law. The Committee notes that it stems from the conjunction of the different provisions mentioned that the persons performing work within the national service are not covered by the Labour Proclamation provisions related to collective bargaining. The Committee further notes the discussions that took place in the International Labour Conference Committee for the Application of Standards (CAS) concerning the application of Forced Labour Convention, 1930 (No. 29), and the conclusions of the CAS in this regard in June 2015 and 2018 respectively, where reference was made to a systematic and large-scale practice of requiring Eritrean citizens to perform work for an indefinite period of time within the framework of programmes related to the obligation of national service involving numerous civilian activities such as construction and agriculture. The Committee recalls that the only restrictions to the scope of application of the Convention refer to the armed forces and the police as well as to the public servants engaged in the administration of the State (Articles 5 and 6 of the Convention). The Committee further highlights that the exception in Article 5 of the Convention, like the one embodied in Article 9 of the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87), is justified on the basis of the responsibility of the police and armed forces for the external and internal security of the State. This exception must therefore be restrictively interpreted, applying only to purely military and policing functions. As a result, persons engaged, under martial law, in activities such as agriculture, construction, civil administration and education that do not fall within military or policing activities or the administration of the State should be able to bargain collectively their conditions of employment. In view of the above legal and factual considerations, the Committee notes with concern that large numbers of Eritrean nationals are being denied the right to collective bargaining for indefinite periods of their active life while they are performing civilian activities that fall under the scope of the Convention as part of their obligation of compulsory national service. Noting the end of the “no war no peace situation” enduring since the 1998–2000 border war with Ethiopia and the formal restoration of relations between the two countries in July 2018, the Committee urges the Government to take the necessary measures so as to ensure that Eritrean nationals are not denied the right to bargain collectively beyond the scope of the exceptions set out in Articles 5 and 6 of the Convention.

Promotion of collective bargaining in practice. The Committee requests the Government to provide information on the number of collective agreements concluded and in force, the sectors concerned and the number of workers covered by these agreements.