Observación (CEACR) - Adopción: 2022, Publicación: 111ª reunión CIT (2023)

Convenio sobre el derecho de sindicación y de negociación colectiva, 1949 (núm. 98) - Iraq (Ratificación : 1962)

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Observación

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The Committee notes the observations of the International Trade Union Confederation (ITUC) received on 1 September 2022 concerning matters examined by the Committee in the present comment. It further notes the observations of the International Organisation of Employers (IOE) received on 1 September 2022 concerning the discussions that took place at the Conference Committee on the Application of Standards with respect to the application of the Convention.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 110th Session, May–June 2022)

The Committee notes the discussion which took place in June 2022 in the Conference Committee on the Application of Standards (the Conference Committee) concerning the application of the Convention by Iraq. The Committee observes that the Conference Committee, after noting with concern that there were significant compliance issues regarding the Convention in law and practice with respect to the protection against anti-union discrimination, the lack of trade union pluralism and the promotion of collective bargaining without interference, urged the Government to: (i) provide information on measures taken or envisaged to encourage and promote voluntary collective bargaining, the number of collective agreements concluded and in force in the country, as well as the sectors concerned and the number of workers covered by these agreements; (ii) prohibit acts of undue interference in the establishment, functioning and administration of trade unions and make provision for appeal procedures, coupled with effective and dissuasive sanctions; (iii) undertake legal and practical measures to ensure protection against anti-union discrimination, including through effective and expeditious access to courts, adequate compensation and the imposition of sufficiently dissuasive sanctions; and (iv) take all appropriate legal and practical measures to ensure that trade union rights can be exercised in normal conditions with respect for basic human rights and in a climate free of violence, pressure, fear and threats of any kind.

The Conference Committee also invited the Government to accept an ILO direct contacts mission and to submit a report to the Committee of Experts by 1 September 2022.

The Committee notes that since the discussions in the Conference Committee the Government requested ILO technical assistance with regard to the reform of the Trade Union Law and with respect to awareness-raising activities among different Government agencies and the Parliament. The Committee notes that the Office submitted the requested technical comments concerning the draft trade union law. The Committee welcomes the indications received from the Government that it stands ready to invite a direct contacts mission to visit Iraq. The Committee understands that the mission has not taken place yet due to the political situation, but that the current tentative agreement with the Office is for the direct contacts mission to visit Iraq during the first quarter of 2023.

Civil liberties. The Committee notes the conclusions of the Conference Committee concerning the need for the Government to take all appropriate legal and practical measures to ensure that trade union rights can be exercised in normal conditions with respect for basic human rights and in a climate free of violence, pressure, fear and threats of any kind. Noting the information provided by the ITUC in this respect, the Committee recalls that the ILO supervisory bodies have unceasingly stressed the interdependence between civil liberties and trade union rights, emphasizing that a truly free and independent trade union movement can only develop in a climate free from violence, pressure and threats of any kind against the leaders and members of such organizations (2012 General Survey on the fundamental Conventions, paragraphs 59–60). The Committee calls upon the Government to take all measures necessary to ensure that trade unions, their leaders, and their members can exercise their rights under the Convention, including collective bargaining, with full respect for their civil liberties.

Trade union monopoly. The Committee previously recalled the need to remove any obstacles to trade union pluralism and had noted with interest the Government’s indication that Government Decision No. 8750 of 2005 had been repealed. It had also requested the Government to take the necessary measures to repeal the Trade Union Organization Act No. 52 of 1987. In this respect, the Committee notes the observations from ITUC stressing the negative impact on freedom of association created by section 21 of the referred Trade Unions Act, which provides that the General Federation of Trade Unions is the supreme body for the trade unions. The Committee notes the Government’s indication that a process has been initiated to amend this Act and that it submitted a request to the ILO for the provision of comments on the new draft Act. The Committee notes that the draft Act stipulates that “[t]he State shall guarantee the right to form and join trade union organizations by the workers, the employees, and the self-employed in all sectors, without any kind of discrimination” and welcomes the fact that this provision appears to be aimed at addressing the concerns raised repeatedly concerning legislative constraints on trade union plurality. Recalling that the capacity for workers to choose the union representing them is an important element of the principle of free and voluntary collective bargaining, the Committee hopes that any remaining obstacle to the possibility of trade union pluralism will soon be removed from the legislation.

The Committee further notes that article 1(12) of the new draft Trade Union Act defines the most representative trade union organization as “the organization with the most membership” while article 50 stipulates that “the most representative organizations of workers and employees are determined according to rules developed through the tripartite dialogue between the government, workers’ organizations and employer’s organizations”. With regard to the criteria to be applied to determine the representative status of organizations for the purposes of bargaining, the Committee emphasizes the importance of ensuring, in case controversy should arise, that these criteria are objective, preestablished and precise so as to avoid any opportunity for partiality or abuse (2012 General Survey on the fundamental Conventions, paragraph 228). Observing that article 1(12) solely refers to a numerical criterion, the Committee also recalls that practice shows that criteria used to determine the representativeness of organizations can be broadly divided into quantitative criteria (membership, geographical/sectoral coverage, economic importance of sector or territory) and qualitative criteria (financial/organizational independence, respect for democratic principles, legal status, and influence). For consultations at national level concerning broad social and economic policy issues and in situations of economic and political transition, it may be more important to ensure that all relevant organizations are represented and not just those organizations with the most members, so as to ensure fully informed decision-making and wide support for the process and its outcomes. On the other hand, quantitative criteria may play a more important role when determining which union can engage in enterprise-level bargaining. The Committee invites the Government to take into account the elements mentioned above when engaging with the social partners with a view to establishing the criteria for representativeness of trade unions and employers’ organizations. The Committee requests the Government to provide information in this respect.

Scope of the Convention. Public servants not engaged in the administration of the State. The Committee previously requested the Government to ensure that the rights in the Convention were applicable to all public servants not engaged in the administration of the State. It noted that section 3 of the Labour Code stipulates that its provisions do not apply to “public officials appointed in accordance with the Civil Service Law or a special legal text” and “members of the armed forces, the police and the internal security forces”. The Committee also notes the allegations from ITUC that section 10 of the Revolutionary Council Resolution No. 115 of 1987 also prohibits the establishment of public sector unions. The Committee recalls, once again, that the Convention covers all workers and employers, and their respective organizations, in both the private and the public sectors, regardless of whether the service is essential, and that the only exceptions authorized concern the armed forces and the police, as well as public servants engaged in the administration of the State. It also recalls that under Articles 4 and 6 of the Convention, persons who are employed in the public sector but by their functions are not directly engaged in the administration of the State (employees in public enterprises, municipal employees and those in decentralized entities, public sector teachers, transport sector personnel, etc.) should benefit from the guarantees provided for in the Convention. The Committee notes that, while the new draft Act on Trade Unions appears to extend the right to organize to all sectors, its article 3(2)(1), excludes from the scope of application of the draft law the “unions and associations established in accordance with specific legislation”. The Committee therefore requests the Government to ensure that all public servants not engaged in the administration of the State benefit from the rights enshrined in the Convention and to specify through which pieces of legislation such rights are recognized. It also requests the Government to clarify whether Revolutionary Council Resolution No. 115 of 1987 is still in force, and, if so, ensure its contents are in line with the requirements of the Convention.

Article 1 of the Convention. Protection against acts of anti-union discrimination. Sufficiently dissuasive sanctions. The Committee previously noted that section 11(2) of the Labour Code stipulates that whoever violates the sections relating to discrimination shall be punished by imprisonment for a period not exceeding six months and a fine not exceeding one million dinars (approximately US$685) or by any of the two sanctions. It considered that the amount of the fine referred to above may not be adequate to deter and prevent the repetition of acts of anti-union discrimination, in particular in large enterprises. The Committee notes that Article10 of the new draft Trade Union Act prohibits any form of discrimination against any worker or employee for his/her participation in any union activity and that articles 45–47 protect trade union members, the workers’ representatives and their organizations against any violation of the provisions of the law. The Committee welcomes the fact that these draft provisions also introduce substantially more significant penalties for violations of the Act, as compared to those in the Labour Code, including penalties ranging from 5 to 10 million Iraqi dinars (approximately US$3,450 to 6,900), a requirement of reinstatement, and possible imprisonment for not less than one month and not more than six months for certain types of violations. At the same time, the Committee notes that the referred draft provisions only refer to anti-union dismissals and do not mention other acts of anti-union discrimination, including those carried out at the time of hiring and in the course of employment. In light of the ITUC allegations of the continued and widespread occurrence of acts of anti-union discrimination, the Committee also recalls, that sanctions, even when sufficiently high, will not act as a deterrent if not consistently applied by the relevant administrative or judicial authorities. The Committee requests the Government to adjust the relevant provisions of the new draft Trade Union Act to include a clear prohibition of all types of discriminatory measures on the ground of union membership or union activities both at the time of hiring and during employment, including exclusions from the hiring process or promotion, termination of employment, transfers, downgrading and other acts that are prejudicial to the worker. It also requests the Government to take the necessary measures to ensure that (i) the sanctions actually imposed in cases of anti-union discrimination are sufficiently dissuasive; and (ii) relevant law enforcement and judicial authorities are aware of the persistent problems concerning acts of anti-union discrimination in Iraq and understand their role in ensuring enforcement of the relevant legal provisions. In this regard, the Committee requests the Government to provide information on the sanctions imposed in practice.

Anti-union dismissal. The Committee previously noted that section 145 of the Labour Code provides that when the penalty of dismissal has been imposed on a worker, such decision may be challenged within 30 days before the Labour Court. It also noted, however, that the Labour Code does not specify which sanctions are applicable in the event of anti-union dismissal. In this respect, the Committee welcomes the inclusion of sub-section (3) of article 45 in the new draft Trade Union Act, which contains a right of reinstatement for workers who have been dismissed due to their engagement in lawful trade union activities. The Committee requests the Government to ensure that the remedy of reinstatement proposed in the new draft Trade Union Act concerning dismissal as an act of anti-union discrimination will be accompanied by a retroactive compensation that will both act as a dissuasive sanction and ensure appropriate redress.

Rapid appeal procedures. The Committee previously noted that workers may resort to the Labour Court to file a complaint when exposed to any form of discrimination in employment and occupation. In this respect, the Committee notes that sub-section (3) of article 45 in the new draft Trade Union Act includes a timeframe of 15 days for reinstatement from the date of the dismissal. While highlighting the importance of establishing swift procedures to resolve anti-union dismissal cases in an effective manner, the Committee invites the Government to take the necessary measures to ensure that the remedies proposed in the new draft Trade Union Act concerning anti-union dismissal can be effectively applied in practice,

Article 2. Protection against acts of interference. The Committee noted previously that the Labour Code does not contain any provisions which explicitly prohibit acts of interference. In this respect, it welcomes the inclusion of article 44 in the new draft Trade Union Act, which specifically prohibits acts of interference. As noted above concerning sanctions for acts of anti-union discrimination, the Committee considers that sanctions for acts of interference should be effective and sufficiently dissuasive. The Committee requests the Government to ensure that the remedies proposed in the new draft Trade Union Act concerning acts of interference can be effectively and rapidly applied in practice and are sufficiently dissuasive to prevent and sanction acts of interference.

Article 4. Promotion of collective bargaining in law and practice. The Committee notes the information provided by the Government concerning the legislative framework in the Labour Code governing collective bargaining. It also notes, however, the Government’s indication that no collective bargaining agreements have yet been concluded in the country. The Committee considers that the absence of collective bargaining agreements in Iraq suggests that serious impediments exist, either in law or practice, for the free and voluntary exercise of the right to collective bargaining. In this respect, highlighting the obligation to promote free and voluntary collective bargaining established by Article 4 of the Convention, the Committee recalls that collective bargaining should not be hampered by the inadequacy or inappropriateness of such rules. It also draws the attention of the Government to the means to facilitate and promote collective bargaining contained in the Collective bargaining Recommendation, 1981, (No. 163) aimed at achieving the general principles set out in Article 4 of the Convention. The Committee requests the Government to ensure that its legal framework allows for the free and voluntary exercise of the right to collective bargaining and to take the necessary measures to promote collective bargaining.

Legislative consistency. The Committee has referred several times to provisions in the new draft Trade Unions Act in the present comment, as well as to provisions of the Labour Code which provide lower levels of protection than the draft Trade Union Act. The Committee requests the Government to ensure that any new legislative measures taken in conformity with the requirements of the Convention repeal and replace older legislative and regulatory provisions less favourable to the assertion and promotion of the right to collective bargaining.

The Committee welcomes the Government’s request of ILO technical assistance as well as the steps it has taken to bring its legislation into conformity with the Convention. It hopes that the direct contacts mission will be able to take note of tangible progress, both in law and in practice, in the application of the convention. It requests the Government to continue providing information on any progress achieved in the implementation of the different points addressed in the present comment.