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Repetition

The Committee takes note of the Government’s first report on the application of the Convention. It notes with interest the Government’s indication that a draft Labour Code was developed in collaboration with the Office to revise the 1972 Labour Code, and that all tripartite partners were involved in the process. It also takes note that this draft Labour Code and a draft Civil Service Law are currently pending approval by the Parliament.The Committee requests the Government to inform on the adoption process of the draft Labour Code and the draft Civil Service Law and to transmit copies of the laws once adopted.

The Committee also takes note of the observations of the Federation of Somali Trade Unions (FESTU), received on 1 October 2020, denouncing the violation of the right to collective bargaining, as well as repeated acts of harassment and anti-union interference at an airport management company.The Committee requests the Government to provide its comments thereon.

Scope of the Convention. Definition of worker. The Committee notes that the draft Labour Code: (i) defines a “worker” as “a person who undertakes to perform manual or non-manual work for an employer under a special or general, oral or written agreement, or by way of apprenticeship or probation, in return for remuneration” (section 2); and ii) recognizes the right to establish a trade union to “every person engaged in employment” (section 159). The Committee recalls that the Convention does not apply only to employees but more broadly to all workers and that national laws and regulations may only exclude from the guarantees of the Convention the armed forces, the police and public servants engaged in the administration of the State.The Committee requests the Government to indicate if other laws or regulations recognize the rights set out by the Convention to workers whose status may not be covered by the draft Labour Code, including in particular self-employed workers and workers without employment contract, and to otherwise take the necessary measures to ensure that these workers also enjoy the guarantees under the Convention.

Article 1 of the Convention. Protection against acts of anti-union discrimination. Sufficiently dissuasive sanctions. The Committee notes that the draft Labour Code provides protection against anti-union discrimination through its sections 147(1), 148 and 178. The Committee further notes that the above-mentioned provisions fall under the scope of section 228 of the draft Labour Code which stipulates that any person who contravenes the provisions of the Code for which no penalty is specifically provided is liable to imprisonment for a term not exceeding six months or to a fine of an unspecified amount, or to both such imprisonment and fine. The Committee emphasizes that the effectiveness of legal provisions prohibiting acts of anti-union discrimination is dependent on their enforcement through specific and sufficiently dissuasive sanctions, which should include fines that are adapted to the size of the enterprise and adjusted on the basis of inflation (see the 2012 General Survey on the fundamental Conventions, paragraph 193).The Committee therefore requests the Government to take the necessary measures to ensure that the Labour Code to be adopted by the Parliament provides for sanctions, in particular fines, which are effective and sufficiently dissuasive for acts of anti-union discrimination.

Anti-union dismissal. The Committee notes that, according to section 120 of the draft Labour Code, dismissal for reasons of trade union membership or activities is covered by the concept of unfair dismissal as the list of reasons that are not considered as fair includes “a worker’s membership or proposed membership of a trade union”. As a result, the remedies applicable to anti-union dismissals (damages and, based on the recommendations of a labour officer, reinstatement or re-engagement) are those applied to any type of unfair dismissals. The Committee recalls that the reinstatement of a worker dismissed by reason of trade union membership or legitimate trade union activities with retroactive compensation constitutes, in the absence of preventive measures, the most effective remedy for acts of anti-union discrimination. It also considers that the compensation envisaged for anti-union dismissal should be higher than that prescribed for other kinds of dismissal to ensure a dissuasive effect (see the 2012 General Survey on the fundamental Conventions, paragraphs 182 and 185).In the light of these principles and with a view to ensuring that anti-union dismissals are subject to effective and dissuasive remedies, the Committee requests the Government to provide, once the draft Labour Code is adopted and put into practice, information on the type and amount of compensation awarded by courts when addressing anti-union dismissal cases.

Rapid appeal procedures. The Committee notes that the sections 147(1), 148 and 178 of the draft Labour Code providing protection against anti-union discrimination fall under the scope of the Labour Court, which has exclusive jurisdiction to hear complaints based on any of the provisions of the draft Labour Code (section 216(1)(a)).Recalling that the existence of legal provisions prohibiting acts of anti-union discrimination is not enough if they are not accompanied by effective and rapid procedures to ensure their application in practice (see the 2012 General Survey on the fundamental Conventions, paragraph 190), the Committee invites the Government to provide further details, once the draft Labour Code is adopted and put into practice, with regard to the length of the procedures to treat complaints against such acts.

Article 2. Protection against acts of interference. The Committee takes notes that under the draft Labour Code, it is unlawful for any employer to engage in any act of interference in the establishment or functioning of a trade union (section 147(2)). The Committee notes however that, as is the case for the Code’s provisions against anti-union discrimination, section 147(2) is not accompanied by specific procedures or sanctions to ensure its respect.The Committee therefore requests the Government to take the necessary measures to amend the draft Labour Code to ensure that specific and sufficiently dissuasive sanctions are applicable to such acts, and to provide additional information, once the draft Labour Code is adopted and put into practice, regarding the length of the procedures to treat complaints against acts of interference.

Article 4. Promotion of collective bargaining. The Committee notes with interest the provisions of section 192 of the Labour Code that establish the rules for collective bargaining both at the level of the enterprise and of several employers.The Committee invites the Government to provide information on the measures taken to promote collective bargaining and on the number of collective agreements concluded, specifying the sectors concerned and the number of workers covered.

Machinery and procedures to facilitate and promote collective bargaining. The Committee notes that sections 208 and 224(2) of the draft Labour Code could respectively allow compulsory arbitration as a result of a decision by the Federal Alternative Dispute Resolution Commission or following the request of any of the parties to the Labour Court. The Committee recalls that recourse to the bodies entrusted with resolving disputes should be voluntary and the imposition of arbitration with compulsory effects, by administrative decision or at the initiative of one of the parties, is one of the most radical forms of intervention by the authorities in collective bargaining (see the 2012 General Survey on the fundamental Conventions, paragraphs 243 and 246). It further recalls that compulsory arbitration is only acceptable in relation to public servants engaged in the administration of the State (Article 6of the Convention), in essential services in the strict sense of the term or in cases of acute national crisis (see the 2012 General Survey on the fundamental Conventions, paragraph 247).The Committee therefore requests the Government to take the necessary measures to amend the draft Labour Code to ensure that arbitration, whether conducted by the Federal Alternative Dispute Resolution Commission or by the Labour Court, may, outside of the aforementioned exceptions, only take place with the approval of both parties.

Article 6. Public servants not engaged in the administration of the State. The Committee notes that the provisions of the draft Labour Code apply to all employers and workers, including those employed in the public service or public institutions to the extent that any of their terms and conditions of service are not governed by any other law (section 3(1)). It observes that since the draft Civil Service Law, which applies to all federal civil servants (article 3.1), does not specifically refer to the issues covered by the Convention, these workers may benefit from the protection provided by the draft Labour Code. The Committee additionally notes with interest that section 192 of the Draft Labour Code concerning collective bargaining refers to both private and public employers.The Committee invites the Government to indicate if other laws or regulations refer to the issues covered by the Convention for public servants who are not engaged in the administration of the State, including in particular public enterprises employees, public hospitals personnel and public teachers.