Rapport intérimaire - Rapport No. 85, 1966

1. 266. When the Committee examined this case at its meeting in February 1962 it submitted an interim report in paragraphs 212 to 281 of its 60th Report, which was approved by the Governing Body at its 151st Session (March 1962).
2. 267. Paragraph 281 of the 60th Report of the Committee, containing the recommendations of the Committee as approved by the Governing Body, reads as follows:
   • In all the circumstances the Committee, after examining the complaint and the observations of the Government of Libya thereon, and having taken into account the factual evidence obtained by the I.L.O representative who visited Libya in January 1962, recommends the Governing Body:
     • (a) to decide that the allegations relating to the sequestration of union funds do not call for further examination;
     • (b) to decide that, subject to the observations contained in paragraph 254 above, no useful purpose would be served by pursuing further its examination of the allegations relating to the violation of trade union premises;
     • (c) to decide, with respect to the allegations relating to the refusal to admit representatives of the International Confederation of Free Trade Unions to Libya:
     • (i) to draw the attention of the Government to the importance which the Governing Body attaches to the principle that national trade union organisations should have the right freely to maintain contact with the international organisations of workers to which they are affiliated;
     • (ii) to note the Government's expression of regret that the representatives of the International Confederation of Free Trade Unions who were sent to Libya were not admitted to the national territory and its assurance that such representatives will in future be welcomed at any time;
     • (iii) to conclude therefore that, subject to the observation made in subparagraph (i) above, there is no ground for it to pursue further its examination of these allegations;
     • (d) to decide, with respect to the allegations relating to measures taken against trade union leaders following a strike in 1961:
     • (i) to draw the attention of the Government to the importance which the Governing Body attaches to the principle set forth in article 40 of the Constitution of the International Labour Organisation that members of the Governing Body shall enjoy such privileges and immunities as are necessary for the independent exercise of their functions in connection with the Organisation;
     • (ii) to point out to the Government that Mr. Salem Shita is a member of the Governing Body by virtue of his election thereto by the Workers' group of the International Labour Conference as a representative of that group and not of the workers of Libya;
     • (iii) to point out to the Government that the requirement that workers' representatives wishing to attend an international meeting outside Libya must obtain a permit to leave the country, this permit being granted by the Council of Ministers on the recommendation of the Ministry of Labour, is not compatible in the case of members of the Governing Body with the principle set forth in subparagraph (i) above;
     • (iv) to note that Mr. Salem Shita has been acquitted by the Court of Appeal on all the charges brought against him and to request the Government to furnish to the Governing Body the text of the judgment of the Court of Appeal which acquitted him;
     • (v) to request the Government to state whether any of the persons arrested at the same time as Mr. Shita, and whose trial was stated to be due to take place on 21 November 1961, have in fact been brought to trial and, if so, to furnish information as to the outcome of the proceedings;
     • (e) to request the Government to furnish a copy of the judgment given in the case of Mr. Ali Bitar, to confirm whether Mr. Bitar has in fact instituted an appeal and, if so, to furnish also a copy of the judgment of the appellate court when it is available;
     • (f) to decide, with respect to the allegations relating to interference with the right to organise:
     • (i) to draw the attention of the Government to the importance which the Governing Body has always attached to the principle that workers should enjoy adequate protection against acts of anti-union discrimination in respect of their employment, including acts calculated to make the employment of a worker subject to the condition that he shall not join a union or shall relinquish trade union membership, and acts calculated to cause the dismissal of or otherwise prejudice a worker by reason of union membership;
     • (ii) to express the hope that the Government, in its desire to promote sound and harmonious industrial relations in Libya, will exercise all possible influence to secure the reinstatement, with full regard for the principle enunciated in subparagraph (i) above, of all the dismissed workers who have not yet been re-engaged, and will keep the Governing Body informed as to developments in this connection;
     • (iii) to request the Government to inform the Governing Body as to the outcome of the 14 cases of dismissed workers which have been referred to the Court of Urgent Cases;
     • (iv) to suggest to the Government that it may consider the advisability of amending section 12 of the Labour Code so as to permit workers whose applications to the Director of Labour do not lead to a satisfactory result within a prescribed period to address themselves directly to the courts;
     • (g) to decide, with respect to the allegations relating to the right to strike in so far as the exercise of trade union rights is affected:
     • (i) to draw the attention of the Government to the importance which the Governing Body has always attached to the principle that, where strikes by workers are restricted or prohibited, such restriction or prohibition should be accompanied by the provision of conciliation procedures and of independent and impartial arbitration machinery whose awards are in all cases binding on both sides;
     • (ii) to draw the attention of the Government to the fact that it would not appear to be appropriate for all publicly owned undertakings to be treated on the same basis in respect of limitations of the right to strike without distinguishing in the relevant legislation between those which are genuinely essential and those which are not;
     • (iii) to suggest to the Government that it may care to reconsider the existing situation in the light of the considerations set forth in subparagraph (ii) above;
     • (iv) to suggest to the Government that, in so far as the provision prohibiting strikes in public establishments and public utility establishments is maintained, it might consider, having regard to the principle enunciated in subparagraph (i) above, establishing satisfactory alternative arrangements for the redress of grievances;
     • (v) to request the Government to be good enough to keep the Governing Body informed as to further developments in this connection;
     • (h) to decide, with respect to the allegations relating to the prohibition of the establishment of more than one central trade union organisation in Libya:
     • (i) to draw the attention of the Government to the importance which the Governing Body attaches to the generally recognised principle that workers' organisations should have the right freely to form federations and Confederations of their own choosing;
     • (ii) to express the hope that the Government will reconsider the provisions of section 39bis of the Labour Code so as to give full effect to the foregoing principle;
     • (iii) to request the Government to keep the Governing Body informed of any further developments in this connection;
     • (i) to decide, with respect to the allegations relating to the requirement of previous authorisation for affiliation with international organisations of workers:
     • (i) to draw the attention of the Government to the importance which it attaches to the generally accepted principle that trade union organisations should have the right to affiliate with international organisations;
     • (ii) to express the view that the requirement of governmental permission for such international affiliation is not compatible with this principle;
     • (iii) to note the Government's statement that the relations of the General Union of Libyan Workers with international organisations will not be affected;
     • (iv) to suggest to the Government, nevertheless, that it may consider amending its legislation so as to give full effect, both in law and in fact, to the principle enunciated above;
     • (j) to suggest to the Government that if, in accordance with the earnest hope of the Governing Body, it gives effect to the recommendations made in the foregoing paragraphs, it may then care to give consideration to the possibility of ratifying 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).
   • 268. The above conclusions were brought to the notice of the Government of Libya by a letter dated 21 March 1962, since when the Committee has asked the Government on numerous occasions to be good enough to reply to the requests for further information contained therein.
3. 269. In a communication dated 18 February 1965 the Government of Libya refers to its earlier communications dated 12 November 1961 and 15 January 1962, to the information and documentation placed before Lord Forster of Harraby, K.B.E, Q.C, when he visited Libya as representative of the Director-General from 5 to 10 January 1962, and to the observations made by the Libyan delegation at the International Labour Conference in June 1962, and expresses the view that the above sources of information contain a sufficient and satisfactory reply to all the points raised in paragraph 281 of the Committee's report.
4. 270. The Government adds that the labour movement in Libya is receiving all protection and appreciation from the responsible authorities and that it is at all times working hard to raise the standards and improve the conditions of the workers.
5. 271. Libya has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). On 20 June 1962-that is to say, subsequently to the Committee's examination of the substance of the case in February 1962-Libya ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).
6. 272. The Committee, having regard to the contentions of the Government indicated in paragraph 269 above, has re-examined each of the outstanding allegations in the light of such contentions. It is to be noted, however, that all the sources of information mentioned by the Government, apart from the observations of the Libyan delegation at the International Labour Conference in June 1962, were already before the Committee, and were taken into consideration by it, before it formulated the recommendations to the Governing Body contained in paragraph 281 of its 60th Report.

A. A. The complainants' allegations

• Allegations relating to Measures Taken against Trade Union Leaders following a Strike in 1961
  273. 273 This aspect of the case was considered by the Committee in paragraphs 216 to 235 of its 60th Report. The allegations of I.C.F.T.U in its communications dated 4 October and 10 November 1961 related to the arrest of Mr. Salem Shita, General Secretary of the General Union of Libyan Workers, on 10 September 1961 and to the arrest at the same time of 18 other trade union leaders, the latter having been provisionally released pending their trial fixed to begin on 21 November 1961. The Government's observations dated 12 November 1961, supplemented by further observations dated 15 January 1962, revealed that Mr. Shita had been acquitted on one charge and convicted on the other charge against him by the lower court, on 3 December 1961, that cross-appeals had been lodged, and that on 25 December 1961 the Court of Appeal had acquitted him on all charges. When the I.L.O representative, Lord Forster of Harraby, K.B.E, Q.C, was in Libya from 5 to 10 January 1962, copies of the two court decisions relating to Mr. Shita were not available but, as the Committee indicated in paragraph 226 of its 60th Report, the Government had promised him that copies would be forwarded to the I.L.O. As they had not been received, the Committee, in paragraph 281 (d) (iv) of its 60th Report, recommended the Governing Body to request the Government to furnish the text of the judgment of the Court of Appeal which had acquitted him on 25 December 1961. No copy of this judgment has ever been received from the Government.
  274. 274 The Committee considers it appropriate to point out, as it has done in many cases in the past, that it has regularly followed the practice, when called upon to examine matters which were the subject of national judicial proceedings, of requesting the governments concerned to communicate the texts of the judgments given and the grounds adduced therein, and that generally governments have co-operated with the Committee by responding to such requests. The request for the transmittal of a judgment, therefore, was not a singular proceeding for the Committee to follow in the present case but was in accordance with its normal practice, to which it has always had recourse in order to assess to the full the facts contested in a complaint.
  275. 275 With regard to the particular case of Mr. Salem Shita, the Committee observes that in 1964 and 1965 he attended the 48th and 49th Sessions of the International Labour Conference as Workers' delegate of Libya, occupying the post of General Secretary of the Libyan National Federation of Trade Unions, and has continued to serve, apparently in full freedom, as a Workers' deputy member of the Governing Body of the I.L.O. It would appear that his position has thus been regularised and, accordingly, the Committee recommends the Governing Body to decide that this aspect of the case should now be regarded as closed.
  276. 276 With regard to the allegations that 18 other trade unionists arrested on 10 September 1961 were due to be tried on 21 November 1961, the only comment on this allegation made by the Government was that contained in its communication dated 12 November 1961 to the effect that the Government had referred their cases to the court. No further information on this question was reported by Lord Forster after his visit to Libya in January 1962. At its meeting in February 1962, therefore, the Committee, in paragraph 281 (d) (v) of its 60th Report, recommended the Governing Body to request the Government to state whether any of the persons arrested at the same time as Mr. Shita, and whose trial was stated to be due to take place on 21 November 1961, had in fact been brought to trial and, if so, to furnish information as to the outcome of the proceedings.
  277. 277 Since that time no information on this point has been received from the Government of Libya, nor did the Libyan Minister of Labour refer to it in his speech on the Director-General's Report at the 46th Session of the International Labour Conference in June 1962.
  278. 278 In these circumstances the Committee recommends the Governing Body to request the Government again to be good enough to state whether any of the 18 trade unionists arrested at the same time as Mr. Shita, and whose trial was stated to have been due to take place on 21 November 1961, have in fact been brought to trial and, if so, to furnish information as to the outcome of the proceedings.
• Allegations relating to Mr. Ali Bitar
  279. 279 At its meeting in February 1962 the Committee examined, in paragraphs 236 to 243 of its 60th Report, the case of Mr. Ali Bitar, editor of the newspaper of the General Union of Libyan Workers, alleged also to have been arrested on 10 September 1961. In its communications dated 12 November 1961 and 15 January 1962 the Government explained that, in consequence of passages appearing in the newspaper, Mr. Bitar was fined-a fact confirmed by the I.L.O representative who went to Libya in January 1962 and who said that an appeal by Mr. Bitar was pending. The Committee observed that nothing in the information before it made it clear on the basis of what articles Mr. Bitar was fined and that only the text of the judgment would make it possible for it to elucidate the matter. Consequently, in accordance with its established practice in such cases, the Committee, in paragraph 281 (e) of its 60th Report, recommended the Governing Body to request the Government to furnish a copy of the judgment given in the case of Mr. Ali Bitar, to confirm whether he had in fact instituted an appeal and, if so, to furnish also a copy of the judgment of the appellate court when it was available.
  280. 280 The Government has still furnished no further information on this matter, nor was any reference made to it by the Libyan delegation to the 46th Session of the International Labour Conference in June 1962.
  281. 281 In these circumstances the Committee recommends the Governing Body to request the Government once again to be good enough to furnish a copy of the judgment given in the case of Mr. Ali Bitar, to confirm whether in fact he instituted an appeal and, if so, to furnish a copy of the judgment given by the appellate court.
• Allegations relating to the Re-engagement of Strikers Who Participated in the Strike of September 1961
  282. 282 In paragraphs 244 to 250 of its 60th Report the Committee examined allegations relating to strikers who were not re-engaged after the strike which took place in September 1961. In particular, the Committee observed that, arising out of the refusals to re-engage some of the strikers, the Government had stated in its communication dated 15 January 1962 that it had made every effort to ensure their re-engagement and that 14 cases affecting workers whom the employers had refused to re-engage had been referred to the Court of Urgent Cases in Tripolitania, as the Government made clear to the I.L.O representative who visited Libya from 5 to 10 January 1962.
  283. 283 It was in the light of the foregoing that the Committee, in paragraph 281 (f) (ii) and (iii) of its 60th Report, recommended the Governing Body to request the Government to keep the Governing Body informed as to further developments with regard to the reinstatement of all the dismissed workers who had not been re-engaged and to inform the Governing Body as to the outcome of the 14 cases of dismissed workers which had been referred to the Court of Urgent Cases.
  284. 284 Since that time no further information has been furnished on this matter, either by the Libyan delegation to the International Labour Conference in June 1962 or by the Government subsequently.
  285. 285 In these circumstances the Committee recommends the Governing Body to request the Government to inform it as to how far it succeeded in its efforts to secure the reinstatement of workers who were refused re-engagement following the strike of September 1961 and, more particularly, to inform it as to the outcome of the 14 cases of dismissed workers which were referred to the Court of Urgent Cases in Tripolitania.
• Allegations relating to the Prohibition of the Establishment of More than One Central Trade Union Organisation in Libya
  286. 286 At its meeting in February 1962 the Committee considered section 39bis of the amended Labour Code, permitting the formation of only one central trade union organisation in Libya-an amendment which, according to the Government, was motivated by the need to avoid competitive and challenging interests in the trade union movement and the confusion which had resulted therefrom in the past. The Committee, after emphasising the importance which it attached to the generally accepted principle that workers' organisations should have the right freely to form federations and Confederations, observed, in paragraph 275 of its 60th Report, that the I.L.O. Committee of Experts on the Application of Conventions and Recommendations, when examining a similar provision in the legislation of another country, had pointed out that such a provision did not appear to be compatible with the principle that trade union organisations should have the right to establish and join federations and Confederations of their own choosing without previous authorisation. It was in these circumstances that the Committee made to the Governing Body the recommendations contained in paragraph 281 (h) (i), (ii) and (iii) of its 60th Report cited in paragraph 267 above.
  287. 287 At the 46th Session of the International Labour Conference in June 1962 the Libyan Minister of Labour and Social Affairs emphasised his Government's " great awareness and consciousness of securing the freedom of labour movement within the law, as well as of its international obligations and undertakings in this respect ". He did not, however, refer specifically to the problem raised by section 39bis of the amended Labour Code, nor has the Government furnished any further observations on this matter.
  288. 288 A new Labour Act was promulgated on 22 November 1962, section 64 of which embodied a provision to the effect that " not more than one general federation may be formed in Libya ".
  289. 289 In these circumstances the Committee recommends the Governing Body:
       • (a) to draw the attention of the Government once again to the importance which the Governing Body attaches to the generally recognised principle that workers' organisations should have the right freely to form federations and Confederations of their own choosing;
       • (b) to express the hope that the Government will reconsider the provisions of section 64 of the Labour Code so as to give full effect to the foregoing principle;
       • (c) to request the Government to keep the Governing Body informed of any further developments in this connection.
  290. Allegations relating to the Refusal to Admit Trade Union Missions to Libya
  290. 290 Allegations relating to the alleged refusal to admit representatives of I.C.F.T.U and other organisations into Libya in September 1961 were examined by the Committee in paragraphs 259 to 262 of its 60th Report. The Committee recommended the Governing Body to draw the attention of the Government to the importance which the Governing Body attaches to the principle that national trade union organisations should have the right freely to maintain contact with the international organisations of workers to which they are affiliated. Noting further, however, that in its communication dated 12 November 1961 the Government had expressed its regret that the representatives of the I.C.F.T.U had not been admitted to the national territory on the occasion in question and had given its assurance that such representatives would in future be welcomed at any time, the Committee, in paragraph 281 (e) (iii) of its 60th Report, recommended the Governing Body to decide that, subject to the foregoing observations, there was no ground for it to pursue further its examination of these allegations.
  291. 291 In a communication dated 28 March 1962 I.C.F.T.U alleged that an I.C.F.T.U mission had been refused admission to Libya on 27 March 1962, although the visit had been notified to the Prime Minister in advance and visas had been obtained by the members of the mission.
  292. 292 On 1 April 1962 the Government informed the Director-General of the I.L.O that the I.C.F.T.U mission had not informed the competent Libyan authorities in advance of its arrival or of the purposes of its visit. Upon their unexpected arrival the competent authorities refused to admit them. The Government added that there was no legal ground for the existence of any connection between I.C.F.T.U and the labour movement in Libya and accused I.C.F.T.U of aiming to cause disturbance in Libya under the guise of defending the workers.
  293. 293 On 5 April 1962 I.C.F.T.U addressed a communication to the I.L.O to which was attached a copy of a letter said to have been sent by I.C.F.T.U to the Libyan Prime Minister on 16 March 1962. According to the text cited this letter informed the Prime Minister that the mission, whose five members were named, would visit Libya on 27 March 1962, for four or five days, in order to resume normal negotiations with its affiliate, the Libyan General Federation of Trade Unions, and expressed the wish that the mission might also have an interview with the Prime Minister. I.C.F.T.U also gave the dates on which different Libyan embassies issued visas to the four members of the mission who actually tried to enter Libya (the fifth did not obtain a visa and so did not accompany the others). On 29 March, according to I.C.F.T.U, the Prime Minister expressed regret in a cable and stated that the letter of 16 March had not been received until 29 March.
  294. 294 In a further communication dated 19 April 1962 I.C.F.T.U accused the Government of not implementing the assurance as to the future admission of I.C.F.T.U representa-tives which it had given in its communication dated 12 November 1961 and alleged that, when the members of the mission reached the frontier between Tunisia and Libya, an official at the Libyan frontier post cancelled their visas, stating that " he was only carrying out instructions ".
  295. 295 I.C.F.T.U alleged further that, at a press conference in Benghazi on 1 April 1962, the Libyan Minister of Labour and Social Affairs said that the General Union of Libyan Workers (U.G.T.L.) was no longer affiliated to I.C.F.T.U and that Mr. Salem Shita no longer had any relations with the Libyan trade union movement. U.G.T.L, it was alleged, had at no time indicated a desire to end its affiliation with I.C.F.T.U, nor had U.G.T.L, which alone had competence in the matter, ever informed I.C.F.T.U that Mr. Shita had been replaced or retired. I.C.F.T.U expressed the view that the Government was trying to break the international relations of the Libyan trade union movement, contrary to its earlier statement, referred to in paragraph 278 of the Committee's 60th Report, that the new provisions of the Labour Code would " not affect the relations of the General Union and the international organisations ".
  296. 296 In a communication dated 7 April 1962 the Confederation of Arab Trade Unions complained that its representatives were refused entry to Libya in October 1961 and that in March 1962 it was prevented by the Government from communicating with the Libyan trade unions.
  297. 297 The communication from I.C.F.T.U dated 5 April 1962 was transmitted to the Government for its observations by a letter dated 30 April 1962; the communication dated 7 April 1962 from the Confederation of Arab Trade Unions and that dated 19 April 1962 from I.C.F.T.U were transmitted to the Government by a letter dated 9 May 1962. On numerous occasions since that time the Committee has requested the Government to furnish its observations on these complaints, but no such observations have been received.
  298. 298 Over three years have now elapsed since the trade union missions in question were refused admission to Libya-at a period when the case of Mr. Salem Shita was a matter of grave concern and was one of the important elements in the chain of events which featured the disturbed period when these incidents took place. Since that time the position of Mr. Shita has become regularised and no further complaints of missions being refused admission to the country have been submitted.
  299. 299 In these circumstances the Committee recommends the Governing Body to decide, while again drawing attention to the importance which it attaches to the principle that national trade union organisations should have the right freely to maintain contact with the international organisations of workers to which they are affiliated, that the examination of the allegations relating to the refusal to admit trade union missions to Libya in the spring of 1962 should, for the reasons indicated in paragraph 298 above, now be regarded as closed.
• Situation in respect of the Ratification of International Labour Conventions relating to Freedom of Association
  300. 300 At the conclusion of its examination of the case in February 1962 the Committee recommended the Governing Body to suggest to the Government that if, in accordance with the earnest hope of the Governing Body, it gave effect to the recommendations contained in paragraph 281 of the Committee's 60th Report, it might then care to give consideration to the possibility of ratifying 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).
  301. 301 On 20 June 1962 Libya ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).
  302. 302 The Committee therefore recommends the Governing Body to suggest, having regard to the fact that on 20 June 1962 the Government of Libya ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), that the Government may care to consider giving effect in its legislation to the recommendations made in paragraph 281 of the 60th Report of the Committee, with a view to ratifying also the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).