Informe provisional - Informe núm. 358, Noviembre 2010

1. 644. The complaint is contained in communications dated 3 and 9 November 2009 from the Iraqi Federation of Industries.
2. 645. The Government sent its observations in a communication dated 25 October 2010.
3. 646. Iraq has ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), but not the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).

A. The complainant’s allegations

1. 647. In its communications dated 3 and 9 November 2009, the Iraqi Federation of Industries denounced the seizure of its fund, amounting to US$1,500,000 collected from membership fees and paid service, by Decision No. 8750 of 8 August 2005 of the Government. Such seizure hampered the Federation’s activities and prevented it from providing support, advice and consultancy to its members.
2. 648. Moreover, the complainant indicated that, although Law No. 34 of 2002 concerning the Federation provides for the election of its board members every four years, the Government had been appointing persons to the board who do not have the legal and legitimacy status to manage the Federation.
3. 649. The complainant alleged that, contrary to its stated commitment before the International Labour Conference in 2008 to fully implement Convention No. 98 with a particular emphasis on promoting social dialogue as an essential means to achieve democracy, growth and prosperity among the social partners, the Government continues to deliberately violate its international obligations. The complainant denounced the storming of its headquarters located in the Jadiriya area on 6 October 2009 by a group of persons appointed by the Ministry of Civil Society and the Higher Ministerial Committee who benefited from the protection of security forces of the emergency police of Al Kadara area. The security forces prevented the members of the board of directors of the Federation to enter the building. The complainant indicated that it brought a complaint to the Supreme Judicial Council and made a public denunciation in relation to the occupation of its premises. The persons involved in the storming of the headquarters are still in control of the Federation.
4. 650. The complainant federation expects that the Committee on Freedom of Association would reprimand the Government’s interference and would recommend the Government to respect the provisions of the freedom of association principles enshrined in Convention No. 98, ratified by Iraq, and to guarantee that the Iraqi Federation of Industries may conduct its activities without any kind of interference, harassment or intimidation.

B. The Government’s reply

1. 651. In a communication dated 25 October 2010, the Government indicates that it is keen on applying international labour standards, particularly Convention No. 87 as it represents one of the most important principles and rights in the field of labour. Complaints from social partners on freedom of association are a natural right and cooperation and coordination is carried out with associations that represent the majority. The issue has arisen, however, as to which associations are the genuine legitimate representatives. The Government has therefore resorted to fair and democratic elections to determine the most representative social partners.
2. 652. In order to protect association assets, the Government issued Decision No. 8750 which freezes all assets until elections take place, at which time they will be released and given to the most representative association. Preparatory committees were established to conduct elections, in accordance with Council of Ministries’ Law (364) of 2008 to manage the affairs of the Iraqi Federation of Industries for 90 days and make arrangements for elections in accordance with laws and by-laws. The preparatory committee faced many challenges regarding the data field of industrial projects of the private sector. The Committee’s goal is to form subcommittees to organize the election. In addition, Iraq is going through a complex and critical phase with the continuation of terrorist acts against associations of labour and industry which had rendered it difficult to move forward with elections for both the Iraqi Federations of Industries and the General Federation of Workers’ Union. The Government is fully ready to cooperate and facilitate as required to have standard elections according to labour Conventions and by-laws to ensure integrity and impartiality and to support basic labour rights and principles.

C. The Committee’s conclusions

1. 653. The Committee notes that this case concerns alleged interference of the authorities in the activities of the Iraqi Federation of Industries, in particular, the seizure of its funds by virtue of Decree No. 8750, issued on August 2005, that allows the Government to take control of the finances of existing federations and unions, the appointment of its board members, and the occupation of its premises by a group of individuals under the protection of local security forces.
2. 654. With regard to the allegations concerning the seizure of the funds of the Iraqi Federation of Industries, the Committee notes that the seizure was justified under a Decree from the Council of Ministers that allows the Government to take control of the finances of existing federations and unions (No. 8750 of August 2005). The Committee wishes to recall that, in a previous case concerning Iraq, it had already made comments on Decree No. 8750 [see 342nd Report, Case No. 2453, paras 698–721]. On that occasion, while taking note of the process of reconstruction ongoing in the country and the rebuilding of national institutions, the Committee insisted on the importance it places on the right of workers to exercise freely their trade union rights. Concerning the restrictions on the use of trade unions funds, the Committee recalled that provisions that give the authorities the right to restrict the freedom of a trade union to administer and utilize its funds as it wishes for normal and lawful trade union purposes are incompatible with the principles of freedom of association. The freezing of union bank accounts may constitute a serious interference by the authorities in trade union activities [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, paras 485–486]. These same principles apply to employers’ organizations.
3. 655. In Case No. 2453, the Committee recommended the authorities to repeal Decree No. 8750 and to enter into full discussions with all concerned parties so that a solution could be found that was satisfactory to all parties concerned. While taking due note of the concerns expressed by the Government that is chose to freeze all assets to ensure their protection until elections determining the most representative organizations took place, the Committee must express its serious concern that the Government has interfered in the affairs of the Federation both in terms of the seizing of their funds, as well as with respect to its elections. Over the five years since issuance of the Decree, no new elections have yet been held and in the meantime the Iraqi Federation of Industries has been severely limited in its capacity to service its members. It highlights in this regard that the assets referred to in this case actually concern the membership fees collected by the Iraqi Federation of Industries. While further taking due note of the Government’s reference to the critical phase in the country and the continuing terrorist acts against associations of labour and industry, the Committee considers that this is all the more reason that such organizations and, in this case, the Iraqi Federation of Industries should be able to count on its funds in order to be in a position to fully provide its membership with the support, advice and consultancy expected and effectively conduct its activities in the interest of its members. Indeed, the seizure of such funds so many years ago may also have an impact upon the evaluation of the Iraqi Federation of Industries by its members and result in biasing the impact of the elections, whenever they do finally occur. In these circumstances, the Committee requests the Government to indicate the steps taken to annul Decree No. 8750 and urges it to restitute without delay all funds to the Iraqi Federation of Industries, as well as to the other organizations affected by the Decree.
4. 656. With regard to the allegations concerning the interference of the Government in the appointment of members of the Iraqi Federation of Industries board of directors, the Committee notes from the documents provided by the complainant that, by virtue of an order issued on 22 January 2009, the Higher Ministerial Committee overseeing the implementation of Decree No. 3 of 2004 of the Iraqi Governing Council, chaired by the Minister of State for Civil Society Affairs, had appointed seven members of a preparatory committee which is responsible for preparing permanent elections to the executive committee of the Federation. By letter dated 8 February 2009, the Federation informed the Committee overseeing the implementation of Decree No. 3 of 2004 of the Iraqi Governing Council that it contested the eligibility of four of the seven members of the preparatory committee based on the requirements foreseen under the Iraqi Federation of Industries Act of 2002. In April 2009, the Council of Ministers endorsed new regulations concerning the appointment of members of preparatory committees of federations, trade unions, associations and occupational organizations in Iraq (document provided by the complainant). The Committee wishes to recall, as a general principle, that it is the prerogative of workers’ and employers’ organizations to determine the conditions for electing their leaders and the authorities should refrain from any undue interference in the exercise of the right of workers’ and employers’ organizations freely to elect their representatives, which is guaranteed by Convention No. 87 [see Digest, op. cit., para. 390].
5. 657. The Committee also wishes to draw the Government’s attention to the following principles concerning the intervention by authorities in elections of workers’ and employers’ organizations. Any intervention by the public authorities in trade union and employers’ organizations elections runs the risk of appearing to be arbitrary and thus constituting interference in the functioning of workers’ and employers’ organizations, which is incompatible their right to elect their representatives in full freedom. The right of workers and employers to elect their representatives in full freedom should be exercised in accordance with the statutes of their occupational associations and should not be subject to the convening of elections by ministerial resolution [see Digest, op. cit., paras 429–430]. Accordingly, the Committee is of the view that a regulation which provides for the election of members of a preparatory committee for preparing permanent elections to the executive committee of a trade union, a federation, an association or an occupational organization is inconsistent with the above principles and constitutes a clear interference in the election process. Thus, the Committee requests the Government to annul the regulations concerning the appointment of members of preparatory committees of federations, trade unions, associations and occupational organizations and to ensure in the future that the Iraqi Federation of Industries can conduct elections of its leaders in accordance with its statutes, without intervention by the authorities.
6. 658. More generally, the Committee recalls that legislative provisions which regulate in detail the internal functioning of workers’ and employers’ organizations pose a serious risk of interference by the public authorities. Where such provisions are deemed necessary by the public authorities, they should simply establish an overall framework in which the greatest possible autonomy is left to the organizations in their functioning and administration. Restrictions on this principle should have the sole objective of protecting the interests of members and guaranteeing the democratic functioning of organizations. Furthermore, there should be a procedure for appeal to an impartial and independent judicial body so as to avoid any risk of excessive or arbitrary interference in the free functioning of organizations [see Digest, op. cit., para. 369]. The Committee firmly expects that the Government will bear these principles in mind when drafting proposals concerning the manner in which trade unions or representative organizations should function, operate and organize, and that it will fully ensure, in law and in practice, the right of workers and employers to form and join organizations of their own choosing, as well as the free functioning and administration of these organizations.
7. 659. As regards the allegations concerning the storming and the occupation by a group of individuals under the protection of the local police of the headquarters of the Iraqi Federation of Industries in Jadiriya area, the Committee notes that the complainant brought the case before court on October 2009. The Committee observes, from the complaint brought to court, that the group of individuals which broke by force into the premises of the complainant was composed of members of the preparatory committee for holding the elections of the Federation. The Committee emphasizes that the principle of the inviolability of the premises of employers’ organizations – a basic civil liberty – also necessarily implies that the public authorities may not insist on entering such premises without prior authorization or without having obtained a legal warrant to do so. Furthermore, when examining allegations of attacks carried out against trade union premises and threats against trade unionists, the Committee had recalled that activities of this kind create among trade unionists a climate of fear which is extremely prejudicial to the exercise of trade union activities and that the authorities, when informed of such matters, should carry out an immediate investigation to determine who is responsible and punish the guilty parties [see Digest, op. cit., para. 184]. The same principle applies to the employers’ organizations. Therefore the Committee urges the Government to provide its observation on the issue. It expects that the Iraqi Federation of Industries can use its premises without delay and requests the Government to keep it informed in this respect. It also requests the Government and the complainant to provide information on any court decision following the complaint brought by the Iraqi Federation of Industries.