Rapport intérimaire - Rapport No. 354, Juin 2009

1. 928. The Committee last examined this case on its merits at its June 2008 session, where it issued an interim report approved by the Governing Body at its 302nd Session [see 350th Report, paras 1108–1166].
2. 929. The Government provided its observations in a communication dated 16 March 2009.
3. 930. The Islamic Republic of Iran has not ratified either the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), or the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

1. 931. In its previous examination of the case, the Committee made the following recommendations [see 350th Report, para. 1166]:
   • (a) Considering that the Government’s presence and conduct during the Iran Confederation of Employers’ Associations (ICEA) elections on 1 November 2007 amounts to interference in the right of employers’ organizations to elect their representatives in full freedom contrary to the principles of freedom of association, the Committee urges the Government to refrain from such interference in the future.
   • (b) The Committee considers the favouritism shown by the Government to be a breach of the ICEA’s freedom of association rights and calls on the Government to remedy past discriminatory acts, to desist from those acts which are continuing, and to refrain from such interference in the future.
   • (c) The Committee urges the Government to take the necessary measures to amend the existing legislation, including the Council of Ministers’ Rules and Procedures on the Organization, Functions, Scope and Liabilities of Trade Unions, so as to ensure that employers’ and workers’ organizations may fully exercise their right to elect their representatives freely and without interference by the public authorities.
   • (d) The Committee requests the Government to take measures as a matter of urgency to amend the Labour Law so as to ensure the freedom of association rights of all workers and employers and, in particular, the right of workers and employers to establish more than one organization, be it at enterprise, sectoral or national level, in a manner consistent with freedom of association and that this be done in a manner that does not prejudice the rights formerly held by the ICEA. It requests the Government to transmit a copy of the proposed amendments as soon as they are finalized and firmly expects that the legislation will be brought into conformity with the abovementioned principle in the very near future.
   • (e) Noting that the ICEA has appealed the 2 March 2008 decision of the Administrative Justice Court’s Appellate Branch, which ruled that the ICEA had been dissolved by operation of article 42 of its Articles of Association, the Committee expects that the appeal will, as per the ICEA’s request, be heard by the Ultimate Appeals Branch of the Administrative Justice Court in the very near future, and that the latter body will take into full consideration all of the Committee’s conclusions set out above. The Committee requests the Government to keep it informed of developments in this regard and to provide a copy of the final judgement once it is handed down.
   • (f) Pending the decision of the Ultimate Appeals Branch of the Administrative Court, the Committee urges the Government to immediately take the necessary measures to re-register the ICEA, as constituted following its General Assembly of 5 March 2007 and to ensure that it can exercise its activities without hindrance. Upon such re-registration, the Committee further urges the Government to adopt a position of non-interference and neutrality in the exercise of freedom of association employers must have in relation to membership of the ICEA, and to provide no formal or informal preference or favouritism to other organizations. It requests the Government to keep it informed of the steps taken in this regard.
   • (g) The Committee expresses its deep concern with the seriousness of the situation prevailing in the country and calls the Governing Body’s special attention to the grave situation relating to the freedom of association climate in the Islamic Republic of Iran. It requests the Government to accept a direct contacts mission in respect of the matters raised in the present case, as well as those raised in the other cases concerning the Islamic Republic Iran pending before the Committee.

B. The Government’s reply

1. 932. In its communication of 16 March 2009, the Government states that article 131 of the Labour Law and article 19 of the Council of Ministers’ Rules and Procedures on the Organization, Functions, Scope and Liabilities of Trade Unions provide, inter alia, for governmental supervision of an organization’s elections and that, until those laws are amended by Parliament, it is obliged to implement those, and all laws, indiscriminately. In any event, the relevant legislation does not provide for interference in an organization’s internal affairs but rather permits the Government to ensure the proper holding of elections in an impartial and objective manner. Moreover, a November 2008 decision of the Administrative Justice Tribunal had exonerated the Government of charges of interfering in the ICEA’s elections.
2. 933. As concerns the allegation of favouritism, the Government maintains that it does not see any point or advantage in taking side with one employers’ group against another. All Iranian employers, irrespective of their confederation’s orientation, are equally and indiscriminately respected and recognized. As evidence of this, the Minister of Labour and Social Affairs, despite his very tight schedule, received the respectable Secretary-General of the International Organisation of Employers (IOE) and issued a statement recommending the holding of an independent employers’ confederation election, in which guests from the IOE and the ILO may be invited to witness how freedom of association is actually practiced in the Islamic Republic of Iran.
3. 934. With respect to the Committee’s Recommendation concerning legislative amendments to ensure organizational multiplicity, the Government indicates generally that amending the Labour Law of the Islamic Republic of Iran has been one of the most serious challenges of the Government within the last 20 years. It is a challenge bound up with a complicated and multifaceted social, political and parliamentary procedure. ILO technical cooperation was requested to ensure that amendments would be made in accordance with Conventions Nos 87 and 98. ILO experts were also invited to promote the principles of collective bargaining in the Islamic Republic of Iran by teaching both workers’ and employers’ organizations. On some occasions, drafts of possible amendments to the Labour Law on controversial points were either assisted by ILO experts or brought to their attention for eventual observations or corrections. The Government adds that a draft amendment to the Labour Law is presently under technical examination in the competent Government commission for final approval.
4. 935. The Government states that paragraph 41 of article 101 of the Fourth National Development Plan clearly calls for the amendment of labour laws, social security laws, and regulations to incorporate fundamental rights at work and comply with relevant ILO Conventions and instruments, as well as to promote social dialogue in industrial relations. To fulfil the objectives of article 101, and particularly the promotion of freedom of association and right to collective bargaining, a draft amendment was prepared and formulated jointly by the social partners to replace articles 7, 21, 24, 27, 41, 96, 112, 119, 191 and 192 of the current Labour Law. The requests for amendments were officially submitted to the Cabinet of Ministers on 30 November 2006, as well as on 30 May and 27 October 2008, (a copy of the request was attached to the Government’s reply). A further amended text, which took into account the contributions made by an ILO expert invited to the Islamic Republic of Iran to review the draft, was later sent to the Cabinet. The Secretary of Economic Commission of the Cabinet, upon examination of the submitted text of the proposed amendments to be made to the Labour Law, forwarded the Cabinet’s observations on these proposed amendments to the Ministry of Labour and Social Affairs (MLSA) on 5 August 2007.
5. 936. A series of tripartite and specialized meetings subsequently resulted in a finalized version of the Labour Law amendments, entitled the Bill on the Formulation of Temporary Labour Contracts and the Creation of New Employment (the amendments are attached to the Government’s reply). According to the Government, the Bill mainly focuses on proposed policies on insurance, social security, short-term temporary contracts and contracting, as well as amendments to Chapter VI of the Labour Law. The Government states that, in drafting the Bill it gave due care to the considerations and interventions of the ILO – in particular those of the Committee. Under the proposed Bill, and in contrast to the existing law, government permission is not required to establish a trade union. Additionally, the purpose of registering workers’ and employers’ associations is merely to help the Government to fulfil its obligation to introduce the most representative workers’ and employers’ delegates to the International Labour Conference (ILC) and other relevant tripartite bodies, such as the High Labour Councils.
6. 937. The Government further indicates that, on the recommendation of the social partners and, in particular, the employers, on 16 May 2007, Parliament approved the “Plan on the removal of obstacles in production and industrial investment”, which has now been implemented. Articles 9 and 10 of the Plan also call for amendments to some of the articles of the existing Labour Law. Parliament’s Economic Commission is addressing another proposal, submitted by the Ministry of Industry on 24 January 2008, which calls for revisiting and amending the labour and social security laws for optimizing production costs” (the proposal was attached to the Government’s reply).
7. 938. As concerns the ICEA’s appeal of 2 March 2008 decision of the Administrative Justice Court’s Appellate Branch, which found the ICEA to have been dissolved as of 4 November 2006, by virtue of article 42 of its Articles of Association, the Government indicates that the Administrative Justice Court was approached in order to expedite the ICEA’s appeal proceeding. The chief of the relevant bureau in the Administrative Justice Court, moreover, had stated that the Court was looking into the possibility of applying “article 18” to the ICEA’s complaint against the Government and that until a final decision was handed down, the Court’s latest ruling would be valid and binding to all contending parties. A translated copy of a communication from the Director-General of the Presidency Domain of the Administrative Justice Court to the MLSA was attached to the Government’s reply. The communication, with apparent reference to the ICEA’s appeal proceeding, indicates that the application of article 18 to the said proceeding was under consideration and that the decision of March 2008 remains valid.
8. 939. As concerns the registration of the ICEA, the Government indicates that, in July 2008, the ICEA had filed a complaint against the MLSA before Branch 86 of the Tehran Legal Public Court, requesting the nullification of the ICE as a parallel employers’ organization possessing the same registration number as its own. The plaintiff ICEA’s action was later withdrawn, and subsequently nullified by the court in November 2008. The Government further states that it is bound to abide by the court’s ruling and that, due to a heavy backlog of cases, the case concerning the legitimacy of the ICEA’s General Assembly elections in November 2006 and March 2007 still awaits hearing by the relevant competent court. Attached to the Government’s reply is a translated copy of the verdict.
9. 940. As concerns the Committee’s previous Recommendation concerning non-interference in the affairs of employers’ organizations, the Government indicates that the existence of the legal proceedings initiated by the ICEA, and pending before the Administrative Justice Court, demonstrates the Government’s policy of non-interference in the affairs of the social partners. The Government further maintains that under its Constitution and laws it is legally obliged to ensure equal treatment for all; no privilege, priority or preference is given to one employers’ organization over another.
10. 941. With respect to the Committee’s request that the Government receive a direct contacts mission, the Government states that many of the Islamic Republic of Iran’s industrial relations and labour problems may best be addressed through constructive interactions with the ILO technical teams, which it views as important to the implementation of Conventions Nos 87 and 98. The Government indicates that during ILO technical mission to the Islamic Republic of Iran, held in February 2008, an ILO official met with social partners’ associations and ranking Government officials and learned about the great interest of Parliament to seriously examine the ratification of those Conventions. The Government expresses enthusiasm for the receipt of such a mission in the future as well and pledges to do its utmost to ensure the fulfilment of their mission objectives; it would soon advise the Committee of the best timetable for a technical mission and expressed confidence that the constructive measures adopted by itself and the social partners, such as attempts to amend the Labour Law and relevant regulations as well as initiatives to prepare the ground for the ratification of Convention No. 87, have paved the way for a constructive mission.

C. The Committee’s conclusions

1. 942. The Committee recalls that the present case concerns allegations of Government interference in the elections of the ICEA, the subsequent dissolution of the ICEA by administrative authority and the official backing of a new and parallel employers’ confederation (the ICE).
2. 943. The Committee recalls that it had previously considered the Government’s presence and conduct during the 1 November 2007 ICEA elections as amounting to interference in the right of employers’ organizations to elect their representatives in full freedom, contrary to the principles of freedom of association, and had urged the Government to refrain from such interference in the future. It had also urged the Government to take the necessary measures to amend the existing legislation, including the Council of Ministers’ Rules and Procedures on the Organization, Functions, Scope and Liabilities of Trade Unions, so as to ensure that employers’ and workers’ organizations may fully exercise their right to elect their representatives freely and without interference by the public authorities. In this respect, the Committee notes with regret the Government’s reiteration that, until amendments are passed by Parliament, it is obliged to implement the laws providing for governmental supervision of organization elections – namely article 131 of the Labour Law and article 19 of the Council of Ministers’ Rules and Procedures on the Organization, Functions, Scope and Liabilities of Trade Unions – and that, until those laws are amended by Parliament, it is obliged to implement those and all laws indiscriminately. The Government further states that the relevant legislation does not provide for interference but rather permits the Government to ensure that elections are held in an impartial and objective manner, and that furthermore a November 2008 decision of the Administrative Justice Tribunal had exonerated the Government of charges of interfering in the ICEA’s elections.
3. 944. These indications notwithstanding, the Committee must once again recall that the national legal formalities referred to must be considered in the light of freedom of association principles. A number of the legal requirements concerning the holding of elections, particularly the Government’s role in their sanctioning, are contrary to the principle that workers’ and employers’ organizations should be guaranteed the right to elect their officers without interference by the public authorities [see 350th Report, para. 1156]. Moreover, the Committee once again recalls that the fundamental idea of Article 3 of Convention No. 87 is that workers and employers may decide for themselves the rules which should govern the administration of their organizations and the elections which are held therein. For this right to be fully acknowledged, it is essential that the public authorities refrain from any intervention which might impair its exercise, whether it be in determining the conditions of eligibility of leaders or in the conduct of the elections themselves. The Committee further recalls that the presence during trade union elections of the authorities is liable to infringe freedom of association and, in particular, to be incompatible with the principle that workers’ and employers’ organizations shall have the right to elect their representatives in full freedom, and that the public authorities should refrain from any interference which would restrict this right or impede the lawful exercise thereof. [See Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, paras 392, 391 and 438.] With reference to the principles cited above, the Committee once again urges the Government to refrain from interfering in the right of employers’ organizations to elect their representatives in full freedom and, in the absence of any specific information related to legislative proposals to ensure this right, to take the necessary measures to amend the existing legislation, including the Labour Law and the Council of Ministers’ Rules and Procedures on the Organization, Functions, Scope and Liabilities of Trade Unions, so as to ensure that employers’ and workers’ organizations may fully exercise their right to elect their representatives freely and without interference by the public authorities.
4. 945. As concerns its previous recommendation on favouritism, the Committee notes the Government’s statement that all Iranian employers’ groups are equally and indiscriminately respected and recognized. The Government further indicates that the Minister of Labour and Social Affairs had met with the Secretary General of the complainant organization (IOE) and issued a statement recommending the holding of an independent employers’ confederation election, in which guests from the IOE and the ILO may be invited as witnesses. The Committee notes this information and expects that the Government will continue to desist from any acts of favouritism and refrain from such acts in the future. The Committee recalls, however, that it considered the Government to have demonstrated de facto favouritism towards the ICE by registering it as the replacement for the ICEA, and had called upon the Government to remedy the effects of this favouritism. The Committee regrets that the Government provides no information respecting this matter; it once again calls upon the Government to remedy past discriminatory acts arising out of the favouritism it had demonstrated towards the ICE.
5. 946. The Committee more generally recalls its previous conclusion that the organizational monopoly required by the law appears to be at the root of the freedom of association problems in the country and the main hurdle to the recognition of the ICEA, as well as its recommendation that the Government take measures to amend the Labour Law so as to ensure the right of workers and employers to establish more than one organization, be it at enterprise, sectoral or national level, and in a manner that does not prejudice the rights formerly held by the ICEA [see 350th Report, para. 1163]. The Committee takes note of the information supplied by the Government respecting this matter, particularly the proposed amendments to the Labour Law including those contained in the proposed Bill on the Formulation of Temporary Labour Contracts and the Creation of New Employment. The Committee observes from the Bill that the proposed amendment to article 131 of the Labour Law would appear to allow for more than one employers’ organization at the sectoral level, inasmuch as it provides that “the employers of a given profession or industry may also establish guild societies”. However, it also notes that the proposed amendment to Note 4 of article 131 appears to maintain the notion in law of only one employers’ organization at the national level – the Supreme Centre of Employers’ Guild Societies. The Committee once again requests the Government to take measures as a matter of urgency to amend the Labour Law so as to ensure not only the freedom of association rights of all workers but also of all employers and, in particular, the right of workers and employers to establish more than one organization, whether at enterprise, sectoral or national level, in a manner consistent with freedom of association and expects that this will be done in a manner that does not prejudice the rights formerly held by the ICEA. It requests the Government to transmit a copy of any additional amendments proposed in this regard and firmly expects that the legislation will be brought into conformity with freedom of association principles in the very near future.
6. 947. As concerns the Committee’s recommendation relating to the ICEA’s appeal of the 2 March 2008 decision of the Administrative Justice Court’s Appellate Branch, which ruled that the ICEA had been dissolved by operation of article 42 of its Articles of Association, the Committee notes with deep regret the Government’s indication that, due to a heavy backlog of cases, the Administrative Justice Court was still considering the ICEA’s appeal and that, until a final decision was rendered, the 2 March 2008 decision remains valid. Recalling that justice delayed is justice denied, the Committee once again expresses the expectation that the appeal will, as per the ICEA’s request, be heard by the Ultimate Appeals Branch of the Administrative Justice Court in the very near future, and that the latter body will take into full consideration all of the Committee’s conclusions relating to this case, including those set out in its previous examination [see 350th Report, paras 1153–1165]. The Committee once again requests the Government to keep it informed of developments in this regard and to provide a copy of the final judgement once it is handed down.
7. 948. The Committee deeply regrets that, with regard to its previous recommendation to reregister the ICEA, the Government limits itself to stating that the ICEA had filed a complaint against the MLSA before the Tehran Legal Public Court, seeking the nullification of the ICE as a parallel organization possessing the same registration number as its own; the action was subsequently withdrawn and finally nullified by the court in November 2008. Recalling its conclusion that the final decision to dissolve the ICEA was based on legislative provisions and practices contrary to the fundamental principles of freedom of association [see 350th Report, para. 1164], the Committee once again urges the Government, pending the final decision of the Administrative Justice Court, to immediately take the necessary measures to register and recognize the ICEA as constituted following its General Assembly of 5 March 2007 and to ensure that it can exercise its activities without hindrance. The Committee further urges the Government to adopt a position of non-interference and neutrality in the exercise of freedom of association employers must have in relation to membership of the ICEA, and to provide no formal or informal preference or favouritism to other organizations. It once again requests the Government to keep it informed of the steps taken in this regard.
8. 949. Finally, in respect of its previous request for a direct contacts mission, the Committee welcomes the Government’s statement that such a mission would be viewed positively, in order to review the existing situation and provide guidelines for improvement where appropriate, and that it would soon advise the Committee of the best timetable for the visit. The Committee expects that the mission will be able to visit the country shortly and that it will be in a position to assist the Government in achieving significant results with respect to all the serious outstanding matters and, in particular, as regards the draft labour legislation and principles relating to the freedom of association rights of employers’ organizations and non-interference.