Observation (CEACR) - adoptée 2010, publiée 100ème session CIT (2011)

The Committee notes the comments made by the International Trade Union Confederation (ITUC) dated 24 August 2010 concerning the application of the Convention. The Committee requests the Government to provide its observations thereon in its next report.

Article 2 of the Convention. Trade union monopoly. In its previous comments, the Committee had requested the Government to indicate the measures taken or contemplated so as to repeal or amend the legislative provisions establishing a regime of trade union monopoly (sections 3, 4, 5 and 7 of Legislative Decree No. 84; sections 4, 6, 8, 13, 14 and 15 of Legislative Decree No. 3, amending Legislative Decree No. 84; section 2 of Legislative Decree No. 250 of 1969; and sections 26–31 of Act No. 21 of 1974). The Committee notes that the Government indicates in its report that the majority of workers confirmed their position independently by declaring, through their trade union congresses, their wish to hold on to the General Federation of Trade Unions (GFTU) as a single union organization. The Committee notes that the Government’s statement is once again corroborated by the comments of the GFTU forwarded by the ITUC. While taking due note of the above information, the Committee must once again recall that although it is generally to the advantage of workers and employers to avoid proliferation of competing organizations, trade union unity, imposed directly or indirectly, by law runs counter to the standards expressly laid down in the Convention. Although it was clearly not the purpose of the Convention to make trade union diversity an obligation, it does at the very least require this diversity to remain possible in all cases (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 91). The Committee therefore once again requests the Government to indicate in its next report the measures taken or contemplated so as to repeal or amend the legislative provisions which establish a regime of trade union monopoly so as to allow possible trade union diversity.

Article 3. Financial administration of organizations. In its previous comments, the Committee had requested the Government to take the necessary measures to amend section 18(a) of Legislative Decree No. 84, as amended by section 4(5) of Legislative Decree No. 30 of 1982, so as to lift the power of the Minister to set the conditions and procedures for the investment of trade union funds in financial services and industrial sectors. The Committee notes that the Government indicates that the GFTU reiterated that it is a financially independent organization, that it has the full right to dispose of its funds in the manner it sees appropriate for their investment without the interference of anybody whatsoever in accordance with Act No. 25 of 2000, and that it invests its funds in particular in establishing hotels and tourist agglomerations, without interference. The Committee recalls, with regard to the financial administration of workers’ organizations, that legislative provisions that give authorities the right to restrict the freedom of trade unions to invest, administer and utilize their funds as they wish for normal and lawful trade union purposes are incompatible with the principles of freedom of association. Therefore, taking into account what appears to be the practice and in order to bring the legislation into conformity with the principle of freedom of association, the Committee requests the Government to take the necessary measures to amend section 18(a) of Legislative Decree No. 84, as amended by section 4(5) of Legislative Decree No. 30 of 1982, in accordance with the abovementioned principle. The Committee requests the Government to provide information on any measures taken or contemplated in this respect in its next report.

Right of organizations to elect their representatives in full freedom. In its previous comments, the Committee had requested the Government to take the necessary measures to repeal or amend the legislative provisions which determine the composition of the GFTU Congress and its presiding officers (section 1(4) of Act No. 29 of 1986, amending Legislative Decree No. 84). The Committee notes that the Government does not refer to these issues in its report. The Committee recalls that it should be up to trade union constitutions and rules to establish the composition and presiding officers of trade union congresses; national legislation should only lay down formal requirements in this respect; any legislative provisions going beyond such formal requirements constitute interference contrary to Article 3 of the Convention (General Survey, op. cit., paragraphs 109 and 111). The Committee, therefore, once again requests the Government to provide specific information on the measures taken or contemplated to repeal or amend section 1(4) of Act No. 29 of 1986, amending Legislative Decree No. 84, in accordance with the abovementioned principle. The Committee requests the Government to provide information on any measures taken or contemplated in this respect in its next report.

Furthermore in its previous comments, the Committee had requested the Government to indicate the provisions which explicitly amend section 44(B)(3) of Legislative Decree No. 84 so as to allow a certain percentage of trade union officers to be non-Arab. The Committee had noted that, according to the Government, Legislative Decree No. 25 of 2000 amending Legislative Decree No. 84 of 1968 explicitly provides for the right of non-Syrian workers to join occupational trade unions, and that the law does not set down any discriminatory restrictions or provisions on the possibility of election of workers as trade union officers, regardless of their nationality. The Committee notes that the Government indicates in its report that every worker is allowed to become a member of a trade union to which he/she is affiliated, and that as long as he/she is affiliated to a trade union, he/she has the right to nominate himself/herself to leading union posts.

Right to strike. In its previous comments, the Committee had requested the Government to indicate the progress made with regard to the adoption of draft amendments to provisions which restrict the right to strike by imposing heavy sanctions including imprisonment (sections 330, 332, 333 and 334 of Legislative Decree No. 148 of 1949, issuing the Penal Code). The Committee notes that the Government indicates in its report that the amendment procedure takes time, that it will keep the Committee informed of any new developments and that the Ministry of Justice will take the Committee’s comments into account. The Committee recalls that no penal sanction should be imposed against a worker for having carried out a peaceful strike and therefore measures of imprisonment should not be imposed on any account. Such sanctions could be envisaged only where during a strike, violence against persons or property or other serious infringements of rights have been committed, and can be imposed pursuant to legislation punishing such acts. The Committee expresses the hope that the measures envisaged to bring the legislation in conformity with the Convention will be adopted in the near future, in accordance with the abovementioned principle. It requests the Government to provide, with its next report, a copy of the amendments as adopted.

The Committee reminds the Government that, if it so wishes, it may include the issues under this Convention when receiving the technical assistance of the Office it has requested under the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).