Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 316, Juin 1999

1. 102. The World Federation of Trade Unions (WFTU) and the Bahrain Workers' Union submitted a complaint against the Government of Bahrain in communications dated 7 September and 6 October 1997, and 10 February, 16 March, 27 August and 30 December 1998. The Government sent its observations on 1 April 1998 and 24 February 1999.
2. 103. Bahrain has ratified neither the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), nor the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainants' allegations

1. 104. Generally speaking, the complaint submitted by the complainants concerns the denial of the right to organize in Bahrain, arguing that the Government is against any form of workers' organization, denies trade union rights and prohibits any form of trade union activity.
2. 105. Legislative aspects. The complainants allege that the Government refuses to apply articles 27 and 28 of the country's Constitution concerning trade union rights and the right to establish and join trade unions. In 1981 the Government adopted two Ministerial Orders (Nos. 9/1981 and 10/1981) which make absolutely no reference to workers' right to organize and prescribe the establishment of joint committees of workers' and employers' representatives as a basic principle. According to the complainants, these Orders confirm the Government's refusal to allow the formation of a trade union for Bahraini workers.
3. 106. The complainants add that the Government has also violated trade union rights by repealing the Trade Union Act of 1957 and replacing it by a single provision in the 1976 Labour Code (section 142 of Law No. 23/1976) stipulating that joint committees composed of employers' and workers' representatives may be formed in any establishment for "cooperation in the settlement of disputes, securing improvements to the workers' social standards, organizing social services, fixing wages, increasing productivity and in any other matters of mutual interest to the two parties".
4. 107. The complainants allege that the effect of this provision is to replace traditional trade unions by joint employer-worker committees.
5. 108. The complainants consider that, by amending the labour legislation and setting up joint labour committees, the Government has established a form of workers' representation that is unacceptable and is thereby denying workers the right to establish their own organizations to represent them on such joint committees. The complainants also criticize the fact that the composition of these committees, which consist of four employers' and four workers' representatives, is subject to ministerial authorization and that the minister can reject any workers' candidate for reasons of national security.
6. 109. The Government has also established a General Committee of Bahraini Workers which, according to the complainants, is under its strict control. In support of their allegations, the complainants submit communications showing that the Government requires that a ministerial representative attend and supervise general meetings of the General Committee of Bahraini Workers. The complainants maintain that this Committee does not in any way comply with the principles of freedom of association and has none of the trade union rights defined in international labour Conventions. They argue that, in any case, the very concept of joint representation is illogical if it is designed to take the place of genuine and effective trade union representation.
7. 110. Furthermore, the Government allegedly adopted a provision in the 1976 Penal Code (article 132) whereby any citizen who in any capacity whatsoever contacts the representatives of trade unions, organizations, associations or federations is liable to at least three years' imprisonment or a fine of at least 100 dinars, or both. The complainants state that in August 1997 the Minister of Labour took additional measures against freedom of association by prohibiting the General Committee of Bahraini Workers itself from engaging in any international activity and requiring it to follow ministerial instructions.
8. 111. These legislative provisions have allegedly caused grave prejudice to the Bahrain Workers' Union, which under the law cannot freely organize its activities in the country. The complainants explain that the official announcement of the establishment of the Bahrain Workers' Union was made on 15 February 1978 following an agreement among Bahrain's trade unions that was concluded under the supervision of the International Confederation of Arab Trade Unions (ICATU), the Kuwait Workers' Union and the Yemen Workers' Union. Its organizational programme was announced and registered with ICATU on 11 April 1984. A few days later the programme was submitted to the Minister of Labour and Social Affairs and published in several local Arabic newspapers. At the same time the organization initiated proceedings requesting the Ministry of Justice to order the Ministry of Labour and Social Affairs to recognize the organization and to cease taking legal action against trade unionists and arresting and deporting them for trade union activities. At the beginning of July 1989 the organization again submitted its constituent documents to the Ministry of Labour so that it could be registered and recognized as a legally constituted trade union organization. The complainants note that the Bahrain Workers' Union has been affiliated to ICATU and the WFTU since April 1989. The 6,000-member strong Bahrain Workers' Union is represented outside the country by two union leaders who are also its official delegates to ICATU, Mr. Hamid Ibrahim Awachi and Mr. Mohamed Abdul Jalil Al-Murbati. Because the Government systemically refuses to allow them or the members of their family to enter the country, they conduct their principal activities outside Bahrain. Mr. Awachi allegedly attempted to return to Bahrain in April 1993, when he was arrested and held for a week before being expelled from the country.
9. 112. Regarding Mr. Al-Murbati's situation, the complainants allege that he is the object of anti-union discrimination by the public authorities. They recall that Mr. Al-Murbati, as the unchallenged leader of the trade union movement in Bahrain, participated actively in national trade union activities between 1969 and 1973 and was unanimously elected by the air traffic controllers of Bahrain airport where he worked as a technician. Mr. Al-Murbati is also a member of the regional councils of ICATU and the WFTU. As already noted, Mr. Al-Murbati has been in exile for many years and, contrary to the country's own Constitution which stipulates that nationality is determined by law and can only be lost in the case of high treason or dual nationality, he and the members of his family have been refused Bahraini citizenship. Yet Mr. Al-Murbati is of Bahraini nationality by birth, as his passport (No. 54739) issued in 1967 shows, and has never been convicted of high treason or held another nationality. According to the complainants, therefore, he is fully entitled to Bahraini citizenship and the authorities' refusal to renew his passport when he applied in 1977 is purely arbitrary. The complainants believe that the steps taken against Mr. Al-Murbati are part of a general policy to weaken and if possible wipe out the trade union movement in the country.

B. The Government's reply

1. 113. The Government considers the complainants' allegations to be unfounded and motivated entirely by political considerations. According to the Government, their communications completely disregard the system of labour relations in Bahrain which fully guarantees the protection of workers' rights and permits them to settle their disputes peacefully.
2. 114. Moreover, the allegations of the complainants ignore the real situation of this island State which, with its 600,000 inhabitants, is the fifth most densely populated country in the world. Furthermore, although oil accounts for some 60 per cent of the Government's revenue, Bahrain's policy has been actively to seek diversification in the economy, notably by investing in the financial and tourism sectors. According to the Government, there are good reasons why there are no trade unions in the country: for example, when the Labour Code was adopted, more than 90 per cent of the workers were non-nationals. That being so, it was neither appropriate nor practical to provide for the establishment of trade unions in the strict sense of the term.
3. 115. The Government emphasizes that there are in any case bodies and machineries for representing workers. These bodies protect the rights of those they represent and facilitate an atmosphere of cooperation and consultation between workers, employers and the Government. They can in fact be regarded as trade unions in all but name. This structure has proved to be beneficial for all concerned and has helped to improve productivity and reduce the incidence of costly and disruptive industrial action.
4. 116. According to the Government, the system of Joint Labour-Management Consultative Committee (JCCs) has evolved as the most effective method of promoting open and constructive labour relations. These committees, which currently operate in 19 companies, have eight to ten members, half of which are from management and half from the workers' side. The Government emphasizes that any employee may stand for election as a workers' representative, subject only to the proviso that candidates should demonstrate good conduct. The national trade union body is the General Committee for Bahraini Workers (GCBW), which the Government says is consulted on a range of issues and is a member of several bodies; its members are elected by secret ballot from among JCC workers' representatives. According to the Government, the GCBW is an integral part of the country's democratic process and plays a major role in defining labour relations. When labour disputes are not settled at this level, the minister conducts an inquiry and engages in mediation. If mediation fails, the parties can submit their dispute to the labour courts.
5. 117. The Government claims that, quite apart from propagating false information about the situation of workers in Bahrain, the complainant is not a bona fide trade union organization and should therefore not be given this status by the Committee on Freedom of Association. Neither the union as such nor its sole officer, Mr. Abdul Jalil Jaffer Al-Murbati, has any legitimate or real interest in labour relations in Bahrain. The Government backs its claim by observing that the Bahrain Workers' Union has its headquarters outside the country, in Damas, Syrian Arab Republic. It has no real link with the country and has no address or premises there. It apparently has no members in Bahrain, no structure, no leadership, no by-laws, and has an altogether artificial existence.
6. 118. The Government adds that Mr. Abdul Jalil Jaffer Al-Murbati left Bahrain voluntarily 25 years ago, when he was being investigated for possession of weapons and explosives and was suspected of belonging to an illegal organization seeking to overthrow the Government by force. It was then that he chose to emigrate to the Syrian Arab Republic where he lives with his family. He allegedly now has Yemeni nationality (passport No. 125522 issued on 21 July 1992). The Government recalls that, under Bahraini law, Mr. Al-Murbati can in any case ask for his original nationality to be restored. The Government states that it has never deprived Mr. Al-Murbati of his original nationality. Finally, it stresses that Mr. Al-Murbati was not elected by his peers and plays no part in any group or body representing Bahraini workers within the national territory.

C. The Committee's conclusions

1. 119. This case refers, in general, to alleged discrepancies between the national legislation and the principles of freedom of association and, more specifically, to the denial of the right of Bahraini workers to establish and join the organizations of their choice.
2. 120. The Committee observes, first of all, that it has already examined similar complaints against the Government of Bahrain in recent years (see, inter alia, Case No. 1043, 211th Report, paras. 572-589, Case No. 1211, 233rd Report, paras. 580-592, and 234th Report, paras. 39-45, and Case No. 1413, 259th Report, paras. 553-563, and 272nd Report, paras. 171-176).
3. 121. Preliminary objection. The preliminary objection of the Government, whereby it challenges the competence of the complainant, the Bahrain Workers' Union, to submit a complaint inasmuch as its headquarters are outside the country, has already been examined and ruled on by the Committee (see Case No. 1043, para. 584). In its previous examination, the Committee noted that, in previous cases examining receivability of complaints emanating from trade union organizations outside the country in question, it had invariably pointed out that, under the procedure governing the submission of complaints relating to violations of freedom of association, such complaints must come either from organizations of workers or employers or from governments, but that it was sometimes suggested that the persons purporting to act on behalf of such an organization were not entitled to do so because the organization has been dissolved or because the individuals lodging the complaint had ceased to be resident in the country concerned. The Committee considered at the time that it would be altogether inconsistent with the purpose for which the procedure for the examination of allegations concerning the infringement of trade union rights had been established for it to admit that the dissolution of an organization by governmental action extinguished the right of the organization to invoke the procedure.
4. 122. However, the Committee did recognize that, in such cases, there might be difficult questions concerning the exact authority and knowledge of the facts of the persons claiming to act on behalf of the organization concerned and the reliability of the testimony of persons no longer resident in the country concerned. The Committee therefore stated that it would be prepared to consider such questions on their merits, as necessary, but that it would not regard any complaint as being irreceivable simply because the government in question had, or claimed to have, dissolved the organizations on behalf of which the complaint was made, or because the person or persons making the complaint had taken refuge outside the country concerned. In taking this view it was influenced by the conclusions unanimously approved by the Governing Body in 1937 regarding the island of Mauritius, when considering a representation under article 24 of the Constitution of the Organization, according to which it would exercise its discretion in deciding whether or not a body was to be regarded as an industrial association for the purposes of the Constitution of the Organization and would not consider itself bound by any national definition of the term "industrial association". Accordingly, the Committee considered at the time that the complaint of the Bahrain Workers' Union was receivable. In the absence of any evidence justifying a modification of this view, the Committee considers that, in the case at hand, that decision must be maintained and that the complaint submitted by the Bahrain Workers' Union is receivable.
5. 123. Legislative aspects. In previous cases concerning Bahrain the Committee has already examined in detail the provisions referred to in the present complaint, namely Chapter 17 of the Labour Law of 1976 (Law No. 23/1976) and Ministerial Orders 9 and 10 of 1981 (see Case No. 1043, 211th Report, para. 588, and Case No. 1413, 254th Report, para. 489). In the present case, the complainants allege that, by imposing joint committees at the level of the establishment and an elected body (the General Committee for Bahraini Workers) at the national level, these provisions deny workers the right to establish or join the organizations of their choice. They further maintain that these joint committees are not fully autonomous and independent of the public authorities since they are subject to strict government control. For its part, the Government considers that both the joint committees and the GCBW take into account the system of labour relations in the country and are an excellent means of promoting healthy labour relations.
6. 124. More specifically, Chapter 17 of the 1976 Law (Law No. 23/1976) deals with the establishment of joint committees and councils. Inter alia, the provisions of this chapter stipulate that joint committees composed of worker and employer representatives may be formed in any establishment for "cooperation in the settlement of disputes, securing improvements to the workers' social standards, organizing social services, fixing wages, increasing productivity and in any other matters of mutual interest to the two parties" (section 142). Order No. 9/1981 prescribes the terms under which the employers' and workers' representatives are elected to these joint committees. In fact, the management appoints its own representatives and organizes elections for the worker representatives (articles 2 and 3). To be elected, a worker must "not have been convicted of any crime or offence" and "not have been engaged in any activity" prejudicial to the security, unity or interest of the State (article 4). The Ministry of Labour and Social Affairs is empowered to disallow a candidature if the nominee fails to fulfil any of the requirements of the law.
7. 125. Since these provisions do not appear to have been amended since the last examination conducted by the Committee, it has no alternative but to recall the conclusions it formulated at that time, specifically as regards the right of workers to elect their representatives freely and the genuineness of the representation of workers provided for under the legislation concerned. Regarding the representation of workers by joint committees, the Committee considers that there is a risk that in certain cases the workers' representatives on joint committees may not be freely elected, especially as it is the management itself that organizes their election. Moreover, the Minister of Labour is empowered to disallow any candidature where the worker concerned has been convicted of "any crime" or of having engaged in activities prejudicial to the security of the State. The Committee expresses its concern at the extensive discretionary power accorded to the Minister and wishes to recall that no conviction for an activity which by its nature cannot be prejudicial to the proper exercise of official trade union functions should be allowed to constitute grounds for disqualifying a worker from holding trade union office, and that any legislation prohibiting persons convicted of any crime from exercising these functions is incompatible with the principles of freedom of association.
8. 126. The Committee further regrets that the provisions of Order No. 10 of 1981 concerning the General Committee for Bahraini Workers, on which it commented previously, have not been amended since it last examined them. The Committee must therefore recall that articles 2 and 8 of Order No. 10 requiring that the rules for the conduct of the GCBW's affairs and any amendment to them to be approved by the Ministry of Labour and Social Affairs, as well as article 10 prohibiting the GCBW from investing its funds or acquiring assets without the prior approval of the Ministry and from engaging in political activities, are incompatible with the principles of freedom of association. That being so, the Committee must once again urge the Government to re-examine Orders Nos. 9 and 10 of 1981, adopted in pursuance of Labour Law No. 23 of 1976 and to bring them into line with the principles of freedom of association. The Committee calls on the Government to keep it informed in this respect.
9. 127. The Committee is aware that the situation in which the complainant, the Bahrain Workers' Union, and its leaders, find themselves is due in large part to Bahrain's legislative framework, which makes no reference to trade union organizations and established joint committees in their place. The Committee recalls that the principles of freedom of association require governments to guarantee workers the right to organize freely and to establish and join the organizations of their choice. The Committee observes that workers' organizations established in this way could duly represent workers on the joint committees. In these circumstances and in general terms the Committee urges the Government to take the necessary measures so that the workers' right to organize freely is effectively guaranteed and calls on the Government to bring its legislation into line with the principles of freedom of association. The Committee recalls that the Office's technical assistance is available should it so wish. The Committee calls on the Government to keep it informed in this respect.
10. 128. As to the refusal of the Bahraini authorities to issue a passport to Mr. Al-Murbati, the Committee observes that the statements of the parties concerned on the subject are contradictory; the complainants claim that Mr. Al-Murbati only has Bahraini citizenship, whereas the Government affirms that he holds a Yemeni passport and is therefore not entitled to a passport issued by Bahrain. Although questions of citizenship do not come within its terms of reference, the Committee notes the Government's statement that it has no intention to deprive Mr. Al-Murbati of his Bahraini citizenship and is prepared to consider carefully any request for its restoration.