Observation (CEACR) - adoptée 2006, publiée 96ème session CIT (2007)

The Committee notes the Government’s report.

It further notes the comments submitted by the International Confederation of Free Trade Unions (ICFTU) in its communication dated 10 August 2006 on the draft Labour Code which concern the following issues: restrictions on trade union membership and election of officers, single trade union system and strict conditions on the right to organize. The Committee requests the Government to communicate its observations on these comments in its next report.

1. The Law on Trade Unions (2002). The Committee notes the Law on Trade Unions and wishes to raise in this respect the following points:

–      Exclusion from the scope of the Law of employees of high-level public authorities and Cabinets of Ministers (section 4). Considering that senior public officials should be entitled to establish their own organizations and that the legislation should limit this category to persons exercising senior managerial or policy-making responsibilities (see 1994 General Survey on freedom of association and collective bargaining, paragraph 57), the Committee requests the Government to indicate whether the persons referred to in section 4 of the Law enjoy the right to establish and join trade unions.

–      The reference to the General Federation of Trade Unions of Yemen (GFTUY) made in sections 2 (definition of “General Federation”), 20 and 21 could result in making it impossible to establish a second federation or represent workers’ interests. The Committee considers that unification of trade union movement imposed through state intervention by legislative means runs counter to the principle embodied in Articles 2 and 11 of the Convention. The Committee therefore requests the Government to amend the Law on Trade Union so as to repeal specific reference to the GFTUY and to keep it informed of the measures taken or envisaged in this respect.

–      Section 40(b) provides that a trade union organization can organize a strike in coordination with a trade union organization of the highest level. The Committee considers that a legislative provision which requires that a decision by the first-level trade union to call a strike at the local level should be approved by a higher-level trade union body is not in conformity with the right of trade unions to organize their activities and to formulate their programmes. The Committee requests the Government to clarify whether, section 40(b) requires an authorization from the higher-level trade union for a strike to be organized and if that is the case, to take the necessary measures in order to amend the legislation so as to bring it into conformity with the Convention.

2. The draft Labour Code. (1) Article 2 of the Convention. The Committee recalls that in its previous observation, it requested the Government to indicate the measures taken or envisaged to ensure that domestic workers, excluded from the draft Labour Code (section 3(b)), may fully benefit from the rights set out in the Convention and to transmit the texts of any legislation or regulations that ensure the right to organize for domestic workers and for the magistracy and the diplomatic corps. The Committee notes the Government’s statement that, after the promulgation of the Labour Code, the competent authorities shall promulgate legislation specific to domestic workers. Only then the Government will be able to communicate a copy of the relevant legislation. The Committee requests the Government to keep it informed of the developments in this respect. As for the magistracy and the diplomatic corps, the Government indicates that there is no specific legislation concerning their trade union rights other than the Constitution, which guarantees this right without any exemption. The Committee requests the Government to indicate whether these categories of workers can in practice establish and join organizations for furthering and defending their economic and social interests and rights.

With regard to its previous request to consider revising section 173(2) of the draft Code to ensure that minors between the ages of 16 and 18 may join trade unions without parental authorization, the Committee notes with interest that the Government indicates it will consider repealing this provision from the final draft and requests it to keep it informed of the progress made in this regard.

(2) Article 3. In its previous comments, the Committee observed that it appeared, from the draft Labour Code, that foreign workers may not be elected to trade union office. The Committee notes the Government’s explanation that the draft Code does not exclude foreign workers from taking up trade union office. Furthermore, the Government indicates that only foreign persons holding diplomatic passports and those who work in Yemen on the basis of political visas are excluded from the scope of the draft Code under section 3B(6). This category of workers is covered by the specific legislation, regulations and agreements on reciprocal treatment. The Committee requests the Government to indicate whether this category of foreign workers can in practice establish and join organizations of their own choosing.

With regard to the Committee’s previous request to provide a list of essential services referred to in section 219(3) of the draft Code which empowers the Minister to submit disputes to compulsory arbitration, the Committee notes the Government’s indication that the Council of Ministers will issue such a list once the Labour Code is promulgated.

Concerning section 211 of the draft Labour Code, which provides that strike notice must include an indication as to the duration of a strike, the Committee notes the Government’s indication that it is willing to take into account the previous observation of the Committee to the effect that such a requirement unduly restricts the effectiveness of an essential means for furthering and defending workers’ occupational interests. It requests the Government to keep it informed of the progress made in this regard.

(3) Articles 5 and 6. With regard to section 172 of the draft Labour Code which would appear to prohibit the right of workers’ organizations to affiliate with international workers’ organizations, the Committee notes the Government’s indication that indeed, this section contradicts section 66 of the Law on Trade Unions which ensures the right to affiliate with international organization and the current practice, as the Federations of Trade Unions of Yemen is a member of the ICFTU. The Committee therefore trusts that the Government will take the necessary measures to withdraw section 172 from the draft Labour Code.

Finally, the Committee notes the Government’s indication that the International Labour Office provided technical cooperation on the amendment of the Labour Code. The draft legislation was prepared with the help of the ILO experts and an initial workshop was organized for its discussion. In addition to the comments on the draft legislation made by the International Labour Standards Department, the Ministry of Labour had also received comments made by the social partners. The Government states that it was currently awaiting the completion of the subsequent phase agreed upon by the Ministry of Labour and the ILO regarding the organization of a second and final tripartite workshop for the discussion of the draft amendment and the comments made by the Office. Once the final version of the draft, which would take into account the ILO’s comments and the discussion at the tripartite workshop, is prepared with the help of an ILO expert, the Government would transmit a copy thereof to the Committee and would take the necessary measures for its submission to the competent authority for promulgation. The Committee requests the Government to keep it informed of the development of this legislative process.