Observación (CEACR) - Adopción: 2003, Publicación: 92ª reunión CIT (2004)

The Committee takes note of the Government’s report. In this respect, the Committee notes in particular: (1) the new Labour Code No. 12 of 2003; and (2) the Government’s answer to the Committee’s previous comments, prepared with a tripartite committee.

At the outset, the Committee would like to recall that the discrepancies between the Convention and the national legislation - i.e. Trade Union Act No. 35 of 1976, as amended by Act No. 12 of 1995, and the former Labour Code, as amended by Act No. 137 of 1981 - concern the following points:

-  the institutionalization of a single trade union system under Act No. 35 (as amended by Act No. 12) and in particular sections 7, 13, 14, 17 and 52;

-  the control granted by law to the higher level trade union organizations, and in particular the Confederation of Trade Unions, over the nomination and election procedures for trade union office, under sections 41, 42, 43 of Act No. 35 (as amended by Act No. 12);

-  the control exercised by the Confederation of Trade Unions over the financial management of trade unions, under sections 62 and 65 of Act No. 35 (as amended by Act No. 12);

-  the removal from office of the executive committee of a trade union which has provoked work stoppages or absenteeism in a public service or utility, under section 70(2)(b) of Act No. 35 (as amended by Act No. 12);

-  the prior approval of the Confederation of Trade Unions for the organization of strike action, under section 14(i) of Act No. 35 (as amended by Act No. 12);

-  compulsory arbitration at the request of one party, in services other than those that are essential in the strict sense of the term, under sections 93 to 106 of the former Labour Code (as amended by Act No. 137).

Articles 2, 5 and 6 of the Convention. In its previous comments, the Committee once again urged the Government to ensure that Act No. 35 was amended to secure for all workers the right, should they so wish, to establish occupational organizations at all levels outside the existing trade union structure. The Government reiterates that, over the years, the Egyptian labour movement has aimed to protect trade unions against fragmentation, which had weakened it in the past, while preserving their independence from public authorities and political parties. The Committee takes due note of this information but recalls that Act No. 35, and in particular sections 7, 13, 14, 17 and 52, are at variance with Article 2 of the Convention, since trade union unity, directly or indirectly imposed by law, runs counter to the standards expressly laid down in the Convention (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 91). In its 2002 report, the Government mentioned the creation of a tripartite committee to review Act No. 35 in the light of the observations formulated by the Committee in recent years. The Committee requests the Government to indicate in its next report if this committee has been established and, more generally, to keep it informed of the measures taken or envisaged to amend Act No. 35 so as to ensure the right of workers to establish and join organizations of their own choosing, in accordance with Article 2.

Article 3. The Committee recalls that in its previous comment it noted that section 41 of Act No. 35 provides that the date and procedure for nomination and election to the executive boards of trade union organizations shall be determined by a decision of the competent minister, with the approval of the Confederation of Trade Unions. Section 42 sets out the manner of filling vacancies in the executive board and also permits the Confederation to determine the conditions and modalities of the dissolution of such boards in the event of a reduction in the number of members. Section 43 provides that, if for any reason, the number of members of the executive boards falls by more than half of the total number, the board shall be deemed to be dissolved by force of law and the executive body of the higher level trade union organization shall assume its functions temporarily. In its report, the Government indicates that it is the trade union that decides the organization of the elections. The role of the Minister of Manpower and Migration is merely an organizational and procedural one. It provides an official mechanism in order to guarantee that the enterprise will fulfil its obligation to organize elections and that the elections will be held with all the impartiality and neutrality required. In these circumstances, the Committee recalls that procedures for the nomination and election to trade union office should be fixed by the rules of the organization concerned, without any interference by public authorities or by the single trade union central organization designated by the law. To address the Government’s statement that elections should be held under all guarantees of impartiality and neutrality, the Committee would point out that legislative provisions can require, in a manner compatible with the Convention, that organizations specify in their statutes and rules the procedure for appointing their executive bodies, and rules ensuring the proper conduct of the election process. Further, if any supervision is deemed necessary, it should be exercised by a judicial authority (see General Survey, op. cit., paragraphs 114 and 115). Finally, the Committee would like to point out that any removal or suspension of executive bodies which is not the result of an internal decision of the trade union, a vote by members or normal judicial proceedings, seriously interferes in the exercise of the trade union office to which officers should be freely elected by members of their trade union. Legislative provisions which permit the appointment of temporary administrators by the single central organization are incompatible with the Convention. Measures of this kind should only be possible through judicial proceedings (see General Survey, op. cit., paragraphs 122 and 123). The Committee thus expresses the firm hope that the Government will make the necessary amendments to ensure that each workers’ organization is able to elect its representatives in full freedom in accordance with Article 3 of the Convention. It requests the Government to keep it informed of the measures taken or envisaged in this regard.

In its previous comments, the Committee noted that section 62 of Act No. 35 provides that the Confederation of Trade Unions shall determine the financial rules of trade unions and obliges lower level unions to pay a certain percentage of their income to higher lever organizations, while section 65 provides that the Confederation shall control all aspects of the trade union’s financial activities. The Committee recalls that workers’ organizations should have the right to organize their administration without any interference from public authorities, which means, among other things, that they should enjoy autonomy and financial independence. The control granted by the law to the single central organization constitutes interference with the free functioning of workers’ organizations, contrary to Article 3. If such control were to be organized it should be a matter for decision of all the organizations concerned, as reflected in their respective by-laws, and connected to the free choice of lower level organizations to affiliate to higher level organizations. Further, legislation intended to protect the rights of members and to ensure sound and efficient management can provide, in a manner compatible with the Convention, that trade union rules include provisions on the use of funds, the internal financial administration, etc. (see General Survey, op. cit., paragraph 124). The Committee therefore requests the Government to keep it informed of the measures taken or envisaged to amend sections 62 and 65 so that workers’ organizations have the right to organize their administration, including their financial activities, without interference, in accordance with Article 3.

In relation to section 70(2)(b) of Act No. 35, which provides for the dissolution of the executive committee of a trade union that has provoked work stoppages or absenteeism in a public service by the criminal court at the request of the public prosecutor, the Government indicates that these are public facilities and enterprises of vital services, where a strike might endanger the life and safety of the society as a whole. The Committee recalls that it has always considered that any restriction or limitation on the right to strike should be limited to public servants exercising authority in the name of the State or to essential services the interruption of which would endanger the life, personal safety or health of the whole or part of the population (see the General Survey, op. cit., paragraphs 158 and 159). The Committee considers that the scope of the enterprises covered by section 70(2)(b) goes beyond this definition. However, it recalls that, in order to avoid damages which are irreversible or out of all proportion to the occupational interests of the parties to the dispute, as well as damages to third parties, namely the users or consumers who suffer the economic effects of collective disputes, the authorities could establish a system of minimum service in other services which are of public utility rather than imposing an outright ban on strikes (see General Survey, op. cit., paragraph 160). The Committee therefore requests the Government to indicate the measures taken or envisaged to amend section 70(2)(b) taking into account the above.

The Committee notes that under section 193 of the new Labour Code, workers are prohibited to stage or announce a strike during the mediation and arbitration procedures. The Committee further notes that there are two kinds of arbitration procedures: (1) the private arbitration to which the parties may have recourse, under section 191, on the basis of a mutual agreement, except in the case of a dispute concerning a vital and strategic establishment; (2) the arbitration procedure set forth in the law, which may be imposed by one of the parties under section 179; in accordance with section 187, such procedure results in an award which amounts to a ruling passed by the court of appeal. The Committee must once again point out that the right to strike of workers’ organizations may only be prohibited or limited, in particular through compulsory arbitration imposed by one party, in cases of a dispute in essential services in the strict sense of the term, namely services the interruption of which would endanger the life, personal safety or health of the whole or part of the population, or in case of acute national crisis. The Committee therefore requests the Government to amend section 193 of the Labour Code read in conjunction with sections 179 and 187, in order to guarantee that compulsory arbitration imposed by one party will limit the right to strike of workers’ organizations only in cases of essential services in the strict sense of the term or in case of an acute national crisis.

The Committee notes that under section 194 of the new Labour Code, a strike is prohibited in strategic and vital establishments and that these establishments will be determined in a decree of the Prime Minister. In light of the considerations recalled above on the restrictions on the right to strike, the Committee trusts that, in the ministerial decree, the Government will limit the determination of such establishments to essential services in the strict sense of the term. It requests the Government to keep it informed in this respect and to provide a copy of the decree.

The Committee notes that, under section 69(9) of the new Labour Code, workers may be dismissed on the grounds of serious error if they have participated in a strike infringing section 194. Recalling that sanctions for strike action should be possible only where the prohibitions in question are in conformity with the principles of freedom of association, the Committee trusts that workers who have participated in legitimate strike action, in light of the considerations made above in respect of section 194, will not be sanctioned. It requests the Government to keep it informed of any concrete case of application of section 69(9) for infringement of section 194.

Articles 3 and 10. With regard to section 14(i) of Act No. 35 under which the Confederation of Trade Unions is empowered to approve the organization of a strike by workers, the Government indicates that the Confederation is, by virtue of its responsibilities, the trade union which includes all workers in the sector concerned at the national level, and the party responsible for the strike financing fund; therefore, it is only natural that it should have a say in the organization of the strike, in view of all the consequences, both financial and in terms of solidarity, that the strike might entail at the level of all workers in the sector. Further, if the Confederation were not to have a say, this would favour the employer who prefers to deal with the workers of the enterprise and the trade union committee and to have a limited confrontation, rather than a confrontation with the general trade union and the workers of the sector concerned. The Committee recalls that the requirement set out in the law of the approval of the Confederation in order to organize a strike is not in conformity with the Convention, as it denies first-level organizations the right to organize their activities and to formulate their programmes independently, including the decision on whether to call a strike. Prerequisites to the exercise of the right to strike should be left to the statutes and rules of the organizations concerned, which may themselves choose to subordinate a call for industrial action to approval by the central organization to which they may be affiliated. The Committee once again urges the Government to amend the legislation in order to bring it into conformity with Article 3 of the Convention, so that first-level organizations have the right to organize all their activities without the imposition by law of the requirement of prior authorization by the Confederation. It requests the Government to keep it informed of the measures taken or envisaged in this regard.

The Committee is also addressing a request directly to the Government.