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Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Jordan (RATIFICATION: 1968)

Other comments on C098

Observation

Direct Request

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The Committee notes the observations of the International Trade Union Confederation (ITUC), received on 1 September 2022 concerning matters examined in the present comment, including allegations concerning the persistence of anti-union measures against the Jordanian Teachers Association (JTA). The Committee requests the Government to provide its comments in this respect.

The Committee also notes that the Committee on Freedom of Association drew its attention to the legislative aspects of Case No. 3337 that relate to the Convention (Report No. 397, March 2022, paragraph 478). These matters are discussed below.

Articles 1 to 6 of the Convention. Scope of application of the Convention. Foreign workers. In its previous comments, the Committee had observed that the legal incapacity of foreign workers to establish or hold office in trade unions may constitute an obstacle to the autonomous exercise of their rights recognized by the Convention and had urged the Government to take the necessary measures, including legislative measures, to facilitate the full exercise by foreign workers of the rights recognized by the Convention. The Committee notes that the Government indicates in this regard that: (i) the Labour Code restricts the right to establish trade unions to Jordanians and according to the decision No. 1 of 2020 of the Constitutional Court, the Constitution prevails over international treaties and conventions; (ii) in 2021, 44 collective agreements, and in 2022, 33 collective agreements were concluded that cover, respectively 115,332 and 183,033 Jordanian and non-Jordanian workers. Regarding the hierarchy between the Convention and the Jordanian Labour Code, the Committee notes that the text of the above-mentioned decision of the Constitutional Court emphasizes that domestic law shall not contradict international conventions ratified by the Kingdom, a position which is in line with the fundamental principles of international law. The Committee further notes that pursuant to section 98(f) of the Labour Code, foreign workers do not have the right to establish trade unions; pursuant to article 45 of the unified constitution of the recognised sectoral trade unions of 2020 they cannot be elected to the administrative board and; pursuant to section 7(a) of the Jordanian Teachers’ Association Act No. 14 of 2011 (hereafter the JTA Act) they cannot join the JTA, while according to the information communicated by the Government, in 2021 the number of foreign workers in the education sector amounted to 929 persons. Regarding the right of foreign workers to collective bargaining in practice, the Committee notes that, according to the information communicated by the Government, in 2021 foreign workers with a work permit constituted 19.5 per cent of the total workforce. It also notes the Government’s indications as to the aggregate number of workers, including foreign workers, covered by CBAs concluded in 2021 and 2022. It notes in this regard that according to the World Bank report Jobs Diagnostic Jordan (2020), non-Jordanians account for almost 36 per cent of total employment. The Jordanian labour market is highly segmented along the lines of nationality, with non-Jordanians disproportionately concentrated in informal and unskilled sectors. In 2016 almost all domestic workers, 70 per cent of agricultural workers and 60 per cent of construction workers were non-Jordanian. According to the 2022 Annual Report of Better Work Jordan (hereafter BWJ Report), foreign workers also make up 75 per cent of workforce in the garment industry. The Committee notes that in practice, with the exception of the garment sector, no significant collective bargaining has taken place in any of the above-mentioned sectors where foreign workers are highly represented. Domestic work and agriculture were not included in the list of sectors covered by the 17 recognized sectoral unions until July 2022 and according to the Jordanian Federation of Independent Trade Unions, in 2008 the Government refused to recognize an independent union of agricultural workers (Committee on Freedom of Association, Case No. 3337, Report No. 393, March 2021, paragraph 518). Regarding the construction sector, the Committee notes that according to the lists of collective agreements since 2015 published on the website of the Ministry of Labour (hereafter MOL), no large-scale collective bargaining has taken place in the sector in the 2015-2022 period, and the few collective agreements that were concluded covered only specific firms with a few hundred workers covered. Regarding the garment sector, the Committee notes that according to BWJ Report, the garment sector 2019 CBA featured the most inclusive process of any CBA to-date, as worker representatives from multiple different nationalities were consulted and key issues facing workers were addressed during negotiations. Nevertheless, this process has delivered a two-tier regulation of employment conditions in which less favourable terms apply to foreign workers. For instance, the minimum wage applicable to foreign workers is lower; furthermore, the unified contract for Jordanians provides for paid maternity leave and restricts the maximum daily overtime work, while the agreement covering foreign workers does not contain such provisions. In view of the foregoing, the Committee is bound to note that in practice, only in one of the sectors where foreign workers make up most of the workforce, their conditions of work are regulated by collective agreements. Therefore, the Committee notes with concern that the legal restrictions to the freedom of association of foreign workers, in addition to the dominant union monopoly, have strongly contributed to a situation where, in many sectors, they have no access to collective bargaining, while in some others, their bargaining power is being significantly constrained in practice. The Committee notes that,in view of the foreign workers’ large share in the workforce, this issue significantly affects the exercise of freedom of association and the right to collective bargaining in the whole Jordanian economy. In view of the above, the Committee urges the Government to: (i) repeal sections 98(f)1 of the Labour Code and 7(a) of the JTA Act; and (ii) pending legislative reform, take all the necessary measures to promote collective bargaining in the sectors where foreign workers make up most of the workforce and encourage the existing unions to adopt an inclusive approach in which foreign workers’ representatives participate in the process of collective bargaining and their demands and concerns are effectively taken into account. The Committee requests the Government to provide detailed information on the legislative and promotional measures taken in this respect, as well as information on changes in the scope and terms of agreements as they relate to foreign workers.

Agricultural and domestic workers. The Government indicates that the Regulation on agricultural workers was adopted by the House of Representatives on 14 March 2021, following a process that involved consultation with representatives of workers and employers and civil society organizations. The Committee notes that the Regulation contains rules on various aspects of agricultural work and applies to all workers including non-Jordanians. It notes with interest that section 16 of the Regulation refers to the Labour Code all aspects of labour relations that are not covered by the regulation, including the right of agricultural workers to freedom of association and collective bargaining. The Committee further notes the Government’s indication that Decision No. 2022/45 of the Minister of Labour dated 18 July 2022, amending the Decision concerning the categories of industries and economic activities in which workers are allowed to establish unions, included agricultural workers in the professions that can join the union of food industries, which is henceforth called the General Union of Water, Agriculture and Food Industries Workers.

Regarding domestic workers, the Government confirms that section 3(b) of the Labour Code excludes them from the scope of the Code, and that their rights and obligations are set out in Regulation No. 90 of 2009, amended by Regulation No. 64 of 2020. However, the Committee notes with concern the Government’s indication that as the Regulation does not contain a clause referring to the provisions of the Labour Code on matters not covered by it, domestic workers remain excluded from the provisions concerning freedom of association and collective bargaining. Nevertheless, the Government indicates that the above-mentioned Decision No. 2022/45 of the MOL has added domestic workers to the professional categories covered by the Union of General Services and Free Professions, which enables them to join this union. The Government adds that there are no statistical data available as to the number of domestic workers who joined this union. It finally indicates that the owners of agencies for the recruitment and employment of non-Jordanian domestic workers have established an association. The Committee notes that the ITUC confirms in its observations the inclusion of agricultural and domestic workers in the food and services sectors by ministerial decision. The Committee notes that the Ministerial decision No. 2022/45 has enabled agricultural and domestic workers to join the designated sectoral trade unions, which only allows these workers to exercise their right to organize and collectively bargain in the very restrictive framework of the existing system of trade union monopoly, from which they were previously excluded. In view of the above, and while taking due note of the first step taken through the Ministerial decision No. 2022/45, the Committee urges the Government to take the necessary measures to: (i) revise the Labour code or the Regulation on domestic work with a view to expressly recognising the right of domestic workers to organize and bargain collectively; (ii) encourage and promote collective bargaining in agriculture and domestic work sectors, and; (iii) provide information on any collective agreements concluded in these two sectors, and the number of workers covered by them. The Committee requests the Government to provide information on the measures taken.

Workers aged between 16 and 18 years. In its previous comments, the Committee had noted that minors between 16 and 18 years of age have access to employment but are prohibited from joining trade unions and had requested the Government to revise the law so that these persons can enjoy their rights under the Convention. The Government indicates in this regard that the purpose of subjecting the right to establish and join unions to the attainment of age of 18, is to protect the workers’ will and that amending section 98(f) would go against Jordanian civil law provisions concerning the age of majority and the capacity to exercise civil rights. The Government further indicates that the MOL has consulted the Jordanian Chamber of Commerce on this matter, which has expressed its agreement with the current age limit. The Committee once again urges the Government to take the necessary measures to amend sections 98(e)2 and 98(f) of the Labour Code, so as to ensure that minors who have reached the legal age for admission to employment, whether as workers or trainees, are fully protected in the exercise of their rights under the Convention. It requests the Government to provide information on the measures taken or envisaged in this respect.

Education sector workers. In its previous comment, the Committee had urged the Government to guarantee the right to organize and bargain collectively in the education sector; to ensure full respect of the independence of workers’ organizations in the sector; and to provide information on the outcome of court proceedings involving the JTA and on any collective agreement or accord in the education sector, including with the JTA. The Committee notes that the Government indicates that the JTA was established through the enactment of a special law, the JTA Act and that it is not subject to the provisions of the Labour Code, and the MOL plays no part in the disputes related to it. The Committee also notes that the JTA Act does not contain any provision concerning collective bargaining or resolution of collective labour disputes. It further notes that the Government indicates that the General Union of Workers in Private Education (hereafter GUWPE) last concluded a collective agreement with the Organization of private school owners in 2019; but it does not refer to any collective agreement concluded by the JTA. However, the Committee notes that GUWPE covers only the private education sector, while the membership of JTA includes mainly public sector teachers. In view of the foregoing, and the absence of a regulatory framework for collective bargaining covering the JTA, the Committee is bound to note that despite the existence of a union they can join, public sector teachers, and those private sector teachers who choose affiliation to JTA, do not appear to enjoy the right to collective bargaining in law or in practice.

Regarding the proceedings involving the JTA, the Committee notes the observation of the ITUC reporting that the Amman Court of Appeal reversed the administrative decision to dissolve JTA, nevertheless, the organization was still impeded from operating and representing teachers in the country, as none of its board members were able to resume their trade union activities. It also notes the Government’s indication that the JTA executive board was once dissolved by a judicial decision and currently, a case is pending before the Court of Cassation. The Government also refers to a pending penal case concerning JTA, involving charges of incitement to hatred, disturbing the order at an educational institution, and instigating an unlawful assembly. However, the Government does not indicate who is prosecuted in this case and which concrete acts led to the charges. It also notes the ITUC’s observation, reporting that on 5 October 2021, the Jordanian security forces arrested and detained fourteen leading members of the JTA, who were peacefully demonstrating on the World Teachers’ Day, denouncing the crackdown on trade union rights. In this regard, the committee emphasizes that arrest, detention and criminal prosecution of trade union members and leaders for trade union activities is a denial of freedom of association and consequently, of the right to collective bargaining; and that the State must guarantee a climate free from violence, pressure, and threats of any kind against the leaders and members of trade union organizations. It emphasizes that it is incumbent on the competent authorities to ensure that the measures taken against trade union members and officials were not occasioned by their trade union activity. In view of the above considerations and recalling that the Convention covers all teachers in both private and public sectors, the Committee urges the Government to take all the necessary measures, including legislative measures, to ensure that the right to collective bargaining of the JTA and all workers in the public and private education sector is explicitly recognised in law and effectively respected in practice. The Committee further requests the Government toprovide information on the identity and trade union office of the prosecuted JTA members and the concrete acts that have entailed the charges against them, with a view to ensuring that their prosecution is not occasioned by their trade union activities. It also requests the Government to provide information on the outcome of all court proceedings involving the JTA.

Workers not included in the 17 sectors recognized by the Government. In its previous comments, the Committee had noted that the number of sectors in which trade unions can be established is set at 17 and had urged the Government to ensure that no category of workers other than the exceptions in the Convention can be excluded from the exercise of the right to organize and bargain collectively. The Government indicates that the Ministry of Labour initiated the process of amendment of the previous Decision on classification of industries and economic activities in which establishment of unions is authorized following a decision of the Labour Relations Tripartite Committee defined in section 43 of the Labour Code, and the Minister issued decision 2022/45 dated 18 July 2022 pursuant to the recommendation of the Registrar of trade unions. The Committee notes the copy of the Ministerial Decision No. 2022/45 which contains the complete updated list of the industries and economic activities included under each of the 17 sectors of activity assigned to the recognised sectoral unions. The Committee also notes the statistics provided on the number of Jordanian and non-Jordanian workers disaggregated by economic sector, which do not however correspond to the classification of sectors in Decision 2022/45. The Committee notes that the most remarkable change brought by the new classification is the addition of agriculture and domestic work under food industries and services sectors/unions. With the information at its disposal, the Committee is not in the position to evaluate to what extent Decision 2022/45 covers the whole Jordanian economy or which sectors and economic activities may be left out. However, it notes that the principle embodied in section 98(d) of the Jordanian Labour Code, which provides for the existence of a closed list of industries and economic activities in which trade unions can be established, is incompatible with the principles set out in the Convention concerning the workers covered. It notes that until July 2022, the classification had excluded such large sectors as agriculture and domestic work, and that in view of the evolving nature of the economy and the continuous coming into existence of new activities, a closed list will inevitably have the effect of excluding entire categories of workers from the right to establish and join organizations and, therefore, from exercising the right to collective bargaining. Recalling that the Convention covers all workers, with the only possible exceptions of the armed forces, the police and the public servants engaged in the administration of the state, the Committee urges the Government to repeal section 98(d) of the Labour Code and to take the necessary measures to ensure that workers in all sectors of the economy can exercise their right to organize and freely bargain collectively through the organization of their choosing. It requests the Government to provide information on the measures taken in this respect.

Article 2. Adequate protection against acts of interference. In its previous comment, the Committee had requested the Government to provide information on any progress on the adoption of the amendment to section 139 of the Labour Code and the penalties for interference by employers provided in the amended law. The Government indicates that the bill amending the Labour Code is presently before the House of Representatives and that in the amended section 139, the highest fines imposed on employers in case of breach of labour law have increased from JD100 to JD1,000, which amounts to US$1,400. Recalling that the sanctions against acts of interference must be effective and sufficiently deterrent, the Committee notes that a fine of maximum JD1,000, which can neither be adjusted with inflation nor adapted on the basis of the size of the enterprise may not be sufficiently deterrent in the long term and in cases in which the interfering employer disposes of considerable financial resources. The Committee therefore requests the Government to revise the draft submitted to the parliament with a view to effectively strengthen the penalties for interference, so as to ensure that they are sufficiently dissuasive. It requests the Government to provide information on the measures taken in this respect.

Articles 4 and 6. Right to collective bargaining. Trade union monopoly. In its previous comment, the Committee had recalled that the imposition of a trade union monopoly is incompatible with the principle of free and voluntary negotiation and had urged the Government to ensure that more than one trade union can be established in a sector and to permit the effective exercise of the free and voluntary negotiation. The Committee notes the Government’s indication that the situation of trade union monopoly and the refusal to register independent trade unions is based on sections 98(d) and 102(c) of the Labour Code as well as on the Decision on classification of industries and economic activities in which establishment of unions is authorized. The Government further indicates that, the refusal of the Registrar of Trade Unions and Employers’ Associations to register any new trade union with the same aims and purposes as an existing trade union is to avoid rendering the sector vulnerable to fragmentation and conflict of interest. In the view of the Government, Jordanian law does not go against freedom to establish trade unions but regulates it in a way that is compatible with the provisions of the Jordanian Constitution and the United Nations Covenants on civil and political rights and economic, social and cultural rights. The Committee recalls in this regard that its function is to examine whether the requirements of Convention No. 98, ratified by the Kingdom of Jordan, are met in law and in practice; and in carrying out this work, it is guided by the standards laid down in the Convention alone. The Committee notes that according to the observations of the ITUC, no new trade union has been established since 1976. Furthermore, decision 2022/45 does not allow the establishment of any new union, but only recomposes the sectors covered by pre-established unions, by adding to them several previously excluded activities (notably, agriculture and domestic work) or by shifting an activity from the competence of one sectoral union to another.

In view of the above, recalling that the right of workers to free and voluntary collective bargaining should include the right to be represented in collective bargaining by the organization of their choice, the Committee urges the Government to take all the necessary measures to remove obstacles to trade union pluralism in law and in practice, including by repealing section 98(d) of the Labour Code and the Decision on the classification of industries and economic activities where trade unions may be established (Ministerial Decision No. 2022/45) so as to ensure that all workers can fully exercise their right to free and voluntary collective bargaining.

Collective bargaining in the public sector. In its previous comment, the Committee had trusted that the Government measures would contribute positively to the adoption of legislation or regulations explicitly recognizing the right to collective bargaining in the public sector. In this regard, the Committee notes the ITUC observation that the law still prohibits public sector workers from exercising the right to collective bargaining. The Committee requests the Government to provide its comments in this respect. The Committee notes on the other hand the Government’s indication that the Labour Code (section 3) excludes public employees from its scope. Nevertheless, the Government emphasizes that all Jordanian workers, whether they work in public or private sector, have a constitutional right to organize within legal limits. The Government has also transmitted a ruling of the Constitutional Court (interpretative opinion No. 6 of 2013), stating that public sector employees including civil servants have the right to establish unions within the framework of the law, to be set by the constitutionally competent authorities, namely the Council of Ministers and the King. The Committee notes that the Constitutional Court has referred to ILO Conventions Nos 87, 98 and 151 as the international legal foundations of the right to organize in public sector and has stated that on the basis of these instruments, the establishment of an “organization of public employees” that would benefit from all the necessary facilities can be envisaged whose purpose would be to define and defend the interests of the workers in the sector. The Committee had noted in its previous comment that the Civil Service Regulation No, 9 of 2020 does not contain a framework for collective bargaining, and the Government does not indicate any legislative novelty in this regard. In view of the above, the Committee notes that in Jordan, the exercise of the right to collective bargaining in the public sector is still not possible in the absence of a legal framework that would expressly recognise this right and regulate its exercise. Considering that according to the information submitted by the Government, in 2021, public sector employees constituted 38.8 per cent of employed Jordanian nationals, the Committee urges the Government to take the necessary measures, for example, by revising the Civil Service Regulation No. 9 of 2020, or by extending the scope of the Labour Code, to ensure that all public sector workers not engaged in the administration of the State have an effective framework in which they may engage in collective negotiations over their working and employment conditions through the trade union of their choice. The Committee requests the Government to provide information on the steps taken in this regard. It further requests the Government to provide information on any existing public service trade unions besides the JTA and the regulatory texts governing their establishment and functioning.

[The Government is asked to reply in full to the present comments in 2023.]