Suites données aux recommandations du comité et du Conseil d’administration - Rapport No. 378, Juin 2016

Effect given to the recommendations of the committee and the Governing Body

1. 61. The Committee last examined this case concerning denial of trade union rights to public sector employees, obstacles raised to the establishment of independent trade unions in the private sector, and the Government’s refusal to promote an inclusive and constructive social dialogue at its June 2015 session [see 375th Report, paras 46–55]. On that occasion, the Committee: (i) requested the Government to keep it informed of progress in the ratification process of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87); (ii) expected that the legislative amendments to sections 86, 87, 89 and 105 of the Labour Code and the provisions of the Staff Regulations prohibiting public sector employees from establishing and joining trade union organizations would be carried out in the near future, to bring them into full conformity with the principles of freedom of association; (iii) requested the Government to indicate the specific legislative provisions in force guaranteeing domestic workers their union rights, in particular the right to establish and join organizations of their own choosing; (iv) requested the Government to take the necessary measures to ensure that, in case of union elections requiring external supervision, such supervision would be undertaken by the competent authorities; and (v) requested the Government to specify which objective pre-established criteria enabled it to determine which organization was the most representative, and, if no such criteria existed, to take the necessary measures to define them, in full consultation with the social partners concerned.
2. 62. In a communication dated 5 October 2015, the Government recalls that: (i) the Lebanese Labour Code allows employers and workers in every category of occupation to establish a trade union with its own legal personality and the right to take court action; (ii) article 13 of the Lebanese Constitution establishes the right to freedom of assembly and association and the Associations Act of 3 August 1909 establishes the right to form associations by virtue of a final receipt of the public notification, known as ilm wa khabar; (iii) Lebanon’s adherence to the Universal Declaration of Human Rights gives any person the right to form or join a trade union to defend their interests; (iv) trade unions are established completely independently of the persons concerned and without any interference or instructions from the authorities, whose role is limited to granting authorization; (v) the authorities endeavour to avoid having multiple trade unions within a particular category, in order to rule out any potentially adverse competition or conflict between them and any attempt to switch one acronym for another with a view to establishing trade unions whose proliferation may be detrimental to the stakeholders; and (vi) the Government has never refused to promote and encourage social dialogue, as it believes in participation and tripartite representation in labour arbitration councils and the administrative boards of several organizations.
3. 63. Moreover, the Government indicates that Convention No. 87 has been transmitted to the National Assembly and that this item is on the agenda of the joint committees, but that the current circumstances, under which Lebanon has no President, mean that the legislative and the executive are, at present, completely paralysed.
4. 64. The Government adds that following the ratification of Convention No. 87, the laws will be amended in accordance with the Convention to allow public officials to form trade unions and exercise their trade union rights, but that in the meantime, these workers engage in trade union activity, even if it goes by a slightly different name. Moreover, the Government states that members of an organization that does not obtain authorization from the Ministry of Labour to establish a trade union can defend their interests through an association or a group on the basis of a final receipt in respect of their public notification, issued by the Ministry of Interior and Municipalities, under the Associations Act of 3 August 1909 (the Association of Public Officials, the Association of Secondary School Teachers and the Association of Teachers, for example, were established in this manner). With regard to the amendment of sections 86, 87, 89 and 105 of the Labour Code, which grant the Government the power to authorize or refuse the establishment of a trade union, to approve the internal rules of trade unions and to dissolve any trade union committee that has failed to take account of the obligations imposed on it, the Government states that there have been no new developments.
5. 65. In respect of domestic and agricultural workers and contract workers in the public sector, the Government indicates that if they have been excluded from the scope of the Labour Code under section 7 thereof, that provision is considered to be virtually repealed. Further, the Government states that the court actions to which section 624(1) of the Obligations and Contracts Code applies come under the jurisdiction of the labour arbitration boards. The Obligations and Contracts Code, therefore, applies to domestic workers just as it does to agricultural workers employed in non-industrial or non-commercial agricultural establishments (contract workers in the public sector can turn to the Council of State and to the labour courts for a portion of their indemnities, depending on their jurisdiction). The Government also indicates that while there are many workers’ and employers’ unions in agriculture, the Ministry of Labour has so far not received a single application to establish a trade union for Lebanese domestic workers, given that the establishment of an association by foreigners requires the approval of the Council of Ministers and that foreigners do not have the right to establish a union, to stand for election or to vote but may join a trade union, pending amendments to the Labour Code that take into account the comments in this regard.
6. 66. With regard to the most representative trade union, the Government reiterates that Decree No. 2390 of 25 April 1992 (determining the most representative organizations of employers and salaried workers) is currently in force and that no communication from a trade union or federation proving its own representativeness in a given sector has been received. However, the Government states that it has no objection to strengthening consultations with the federations and unions in order to demonstrate the extent to which they are representative.
7. 67. The Committee notes the information provided by the Government. With regard to the ratification of Convention No. 87, the Committee takes note of the current political situation in Lebanon, requests the Government to keep it informed of the progress of the ratification process and reminds it that, in order to bring national legislation, in particular sections 86, 87, 89 et 105 of the Labour Code and the Staff Regulations, into line with the provisions of the Convention, the Government may avail itself of technical assistance from the Office.
8. 68. Noting the Government’s indication that the authorities endeavour to avoid having multiple unions within a particular employment category, in order to rule out any potentially adverse competition or conflict between them and any attempt to switch one acronym of a trade union for another, the Committee reminds the Government that: while it is generally to the advantage of workers and employers to avoid the proliferation of competing organizations, a monopoly situation imposed by law is at variance with the principle of free choice of workers’ and employers’ organizations; that the existence of an organization in a specific occupation should not constitute an obstacle to the establishment of another organization, if the workers so wish; and that a provision authorizing the refusal of an application for registration if another union, already registered, is sufficiently representative of the interests which the union seeking registration proposes to defend, means that, in certain cases, workers may be denied the right to join the organization of their own choosing, contrary to the principles of freedom of association [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, paras 313, 320 and 328.] In this regard, the Committee invites the Government to take the necessary measures to allow workers and employers – if they so wish – to establish more than one organization in the same establishment or occupation.
9. 69. Concerning the labour rights of domestic workers, the Committee notes that the Government states that the law establishing the jurisdiction of labour arbitration councils under Decree No. 3572 of 21 October1980 considers section 7 of the Labour Code, which excludes domestic workers from its scope, as being virtually repealed. The Committee observes that, even if the law grants jurisdiction to the labour arbitration councils to rule on court actions coming under section 624(1) of the Obligations and Contracts Code, which applies to domestic workers, that does not confer on this category of workers the trade union rights guaranteed by the Labour Code. Consequently, the Committee requests the Government to take the necessary measures to ensure the right of domestic workers to establish and join organizations of their choosing. In this regard, the Committee observes that the Government indicates that the establishment of an association by foreigners requires the approval of the Council of Ministers and that a foreign person does not have the right to form a trade union, stand as a candidate for office in a trade union or vote, but may join a union, pending amendments to the Labour Code. The Committee recalls that Article 2 of Convention No. 87 is designed to give expression to the principle of non-discrimination in trade union matters, and the words “without distinction whatsoever” used in this Article mean that freedom of association should be guaranteed without discrimination of any kind based on occupation, sex, colour, race, beliefs, nationality, political opinion, etc., not only to workers in the private sector of the economy, but also to civil servants and public service employees in general [see Digest, op. cit., para. 209]. Thus, the Committee considers that the right of workers, without distinction whatsoever, to establish and join organizations of their choosing without prior authorization implies that all persons residing in the country enjoy trade union rights, including the right to vote, without any discrimination based on nationality. Recalling also that legislation should be made flexible so as to permit the organizations to elect their leaders freely and without hindrance, and to permit foreign workers access to trade union posts, at least after a reasonable period of residence in the host country [see Digest, op. cit., para. 420], the Committee requests the Government to take the necessary measures to allow foreign workers to benefit from trade union rights on the same basis as Lebanese nationals and to keep it informed of any developments in this regard.