CMNT_TITLE

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Eritrea (RATIFICATION: 2000)

Other comments on C087

Observation

Direct Request

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Civil Code. In its previous comment the Committee requested the Government to clarify how the trade unions defined in section 362 of the 2015 Civil Code and the associations of employees and employers defined in section 3(19) of the Labour Proclamation relate to each other. The Committee notes the Government’s indication that section 362 provides a guarantee of freedom of association to the groups of employees excluded from the scope of the Labour Proclamation No. 118/2001 (LP) and subjects the exercise of freedom of association by these groups either to the special laws governing the labour relations of those groups or, in the absence of such special laws, to chapter 2 of title 3 of the Civil Code. The Committee notes that workers excluded from the scope of the LP include civil servants and domestic workers, and that no special law or regulation governing their right to freedom of association has been adopted to date, therefore they can only establish and join civil law associations governed by chapter 2 title 3 of the Civil Code. The Committee examines in this comment the conformity with the Convention of the Civil Code provisions governing associations.

Article 2. Right to establish organizations without prior authorization. The Committee notes that section 423(2) of the Civil Code refers to the power of the “office of associations”, an administrative body in charge of supervision of associations pursuant to section 421, to refuse to register an association without defining the grounds for such refusal. This provision therefore appears to give total discretion to the office of associations to accept or refuse registration. Although section 423(2) provides that an appeal can be made to the court against such refusal, it is not clear on what substantive grounds the administrative decision to refuse registration can be challenged. The Committee recalls that where the legislation does not clearly define the reasons which may be given for refusal and confers upon the competent authority a discretionary power to accept or refuse an application for registration, this may be tantamount in practice to imposing “previous authorization” which is incompatible with Article 2 of the Convention (see the 2012 General Survey on the fundamental Conventions, paragraph 84). Therefore, the Committee requests the Government to take the necessary measures to revise section 423(2) of the Civil Code, with a view to withdrawing the discretionary power given to the office of associations to refuse registration.

Article 3. Right of organizations to organize their activities and formulate their programmes. The Committee notes that section 426 of the Civil Code provides that the office of associations shall be informed in due time whenever a general meeting of an association is held; may be represented by an observer at such general meeting and may prescribe any measure it thinks fit to ensure the good functioning of the general meeting. Furthermore, pursuant to sections 427 and 428 of the Civil Code the office should be informed of all the decisions taken and may impugn before the court the decisions contrary to the law or to the statutes. The Committee notes that these provisions allow and in effect encourage the systematic interference of administrative authority in the meetings and decisions of associations and as such are incompatible with Article3 of the Convention. The Committee requests the Government to take the necessary measures to revise these provisions, with a view to ensuring that public authorities refrain from any interference restricting the right of workers’ and employers’ organizations formed under the Civil Code provisions to organize their administration and activities and to formulate their programmes.

Article 4. Prohibition of dissolution by administrative authority. The Committee notes that section 415(1) of the Civil Code gives the office of associations the authority to dissolve associations where their “objects or activities are unlawful or contrary to morality”. The Committee notes that the reference to “morality” as grounds for dissolution of an organization is very vague and can give rise to arbitrary decisions. Section 415(2) provides for a right to appeal to a court against such decision by any of the directors of the association within thirty days after it has been known to the association, and subparagraph 3 provides that the court may stay the execution of the decision pending the decision on appeal. The Committee recalls that the dissolution and suspension of trade union organizations constitute extreme forms of interference by the authorities in the activities of organizations and should therefore be accompanied by all the necessary guarantees. This can only be ensured through a normal judicial procedure, which should also have the effect of a stay of execution. It is preferable for legislation not to allow dissolution or suspension of workers’ and employers’ organizations by administrative authority but, if it does, the administrative decision to suspend or dissolve an organization should not take effect until a final judicial decision is handed down. The Committee requests the Government to amend section 415 of the Civil Code with a view to ensuring that workers’ and employers’ organizations are not liable to be dissolved by administrative authority or, at least, to provide that such decision will not take effect until a final judicial decision is handed down.

Article 5. The right to establish and join federations and confederations. The Committee notes that the Civil Code does not provide for the right of associations governed by it to establish and join federations and confederations. The Committee recalls that to defend the interests of their members more effectively, workers’ and employers’ organizations should enjoy this right. Therefore, the Committee requests the Government to amend the Civil Code, with a view to recognizing and guaranteeing the right of workers’ and employers’ organizations established under the Civil Code to form federations and confederations of their own choosing, in conformity with Article 5 of the Convention.

The Committee requests the Government to provide information on all progress made in amending the Civil Code with a view to bringing it into conformity with the Convention and to transmit a copy of the amendments, once adopted.

Labour Proclamation. The right to strike. In its previous comments, the Committee repeatedly requested the Government to amend section 116(3) of the Labour Proclamation, which provides that in an undertaking where there is an association, but the majority of the employees are not members of the association, the agreement of more than half of the employees of the undertaking is required to hold a strike. The Committee notes the Government’s indication that it envisages amending section 116(3) of the Labour Proclamation, in line with the Committee’s request, to provide that if a strike vote is required only the votes cast will be counted. The Committee requests the Government to keep it informed of any progress in the amendment process and to send a copy of the legislation once adopted.