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Comments from the ITUC. The Committee notes the comments submitted by the International Trade Union Confederation (ITUC) on 24 August 2010 concerning issues already under examination by the Committee, in particular relating to the absence of independent trade unions. The Committee requests the Government to provide its observations in reply to the ITUC’s comments.

Act No. 23 of 1998 on trade unions, federations and professional associations. For several years, the Committee has been making comments on the need to amend a number of provisions of Act No. 23 of 1998 on trade unions, federations and professional associations. The Committee observes that in its report, the Government indicates as a general statement that the Committee’s comments will be taken into account when amending Act No. 23, and that regulations putting into effect the Act will also be reviewed by the competent authority (the secretariat of the General People’s Congress) accordingly. The Committee expresses the firm hope that the Government will provide in its next report detailed information on steps taken to amend the relevant provisions of Act No. 23 of 1998 and any regulation issued thereof on the following issues.

Article 2 of the Convention. Right of workers and employers without distinction whatsoever to establish and join organizations of their own choosing. Foreign workers. With regard to trade union rights of foreign workers, the Committee recalls that its previous comments referred to the need to amend Act No. 23 of 1998, as well as to amend section 9 of Act No. 20 of 1991 on the promotion of liberty. The Committee requests the Government to amend Act No. 23 of 1998 with regard to foreign workers’ access to executive boards of trade unions, as well as to take the necessary measures to amend section 9 of Act No. 20 of 1991 so as to expressly provide for the right of foreign nationals to establish or join trade unions or delete the specific reference to Libyan citizens or nationals with regard to the right to establish and join trade unions.

Trade union monopoly. The Committee had previously requested the Government to amend section 2 of Act No. 23 of 1998 by explicitly removing the prohibition of the establishment of more than one trade union or association in the same occupation, so as to give full effect to the right of workers to establish and join organizations of their own choosing, including more than one union in a given occupation. The Committee requests the Government to take the necessary steps to amend section 2 of Act No. 23 of 1998.

Minimum membership required to register a trade union. In its previous comments, the Committee had noted the minimum membership of 100 workers is required for a trade union to be registered under section 120 of the Labour Code. It had also noted the Government’s indication that section 1 of the regulations issued pursuant to Act No. 23 of 1998 had fixed 100 members as a minimum membership requirement, whereas the legislature had authorized a membership of 50 workers to set up a basic trade union in productive and service units so as to encourage the success of trade union activity. Consequently, the Committee had requested the Government to take the necessary measures to modify the law and regulations so as to reduce the minimum number of members required to form a union to a reasonable level. The Committee observes that the report of the Government provides no information on steps taken in this regard and requests once again the Government to amend its law and regulations so as to reduce the minimum number of members required to form a union to a reasonable level.

Trade union registration. The Committee once again requests the Government to transmit the texts of any regulations issued under Chapter XIX of Act No. 23 of 1998 which governs the registration of trade unions, as well as the standard registration form mentioned therein.

Article 3. Right of workers’ and employers’ organizations to organize their administration. The Committee had previously noted that section 9 of Act No. 23 of 1998 provides for the structure of trade unions and, moreover, that sections 1, 2, and 3 of the regulations putting this section into effect clarify this structure. It noted, in this respect that, according to section 9 of Act No. 23, conferences of trade unions, trade union federations and professional associations shall hold annual meetings for the discussion and examination of items that lie before them. While noting that the report of the Government does not provide any information in this regard, the Committee once again requests the Government to submit a copy of the regulations putting into effect section 9 of Act No. 23 of 1998.

Right to elect representatives in full freedom. In relation to the eligibility requirement for a trade union office, the Committee had previously noted the Government’s statement that the enforcing regulations of section 8 of Act No. 23 of 1998 require members of a trade union’s secretariat to hold office for a minimum period of four years. The Committee had recalled that provisions which require all candidates for trade union office to belong to the respective occupation, and to be actually employed in this occupation during a certain period before their election, interfere with the members’ right to elect representatives in full freedom, for example, by preventing qualified persons such as full-time union officers or pensioners from carrying out union duties or by depriving unions of the benefit of the experience of certain officers when they are unable to provide enough qualified persons from among their own ranks. While noting that the report of the Government does not provide any information in this regard, the Committee once again requests the Government to amend the enforcing regulations of section 8 of Act No. 23 of 1998 according to the principles mentioned above.

Eligibility subject to a nationality. The Committee had previously noted that the regulations putting into effect section 8 of Act No. 23 of 1998 stipulate Libyan nationality as a condition for membership of the secretariat of a trade union. It had recalled that, where provisions on nationality are too strict, they could deprive certain categories of workers, like migrant workers in sectors where they account for a significant share of the workforce, from the right to elect their representatives in full freedom. The Committee had also recalled that foreign workers should be allowed to take up trade union office at least after a reasonable period of residence in the host country (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 118). While noting that the report of the Government does not provide any information in this regard, the Committee once again requests the Government to take the necessary measures to amend the regulations relating to section 8 of Act No. 23 of 1998 in order to allow foreign workers to take up trade union office.

Right of representative organizations to organize their administration and to formulate their programmes. The Committee had previously noted that the following provisions of Act No. 23 of 1998 tend to over-regulate matters that should be left to the trade unions themselves and their by-laws, and therefore entail a risk of interference by the public authorities in trade union activities:

–           section 15 spells out in detail the rules on the basis of which trade union subsidiary offices will be supervised by the trade union secretariat;

–           section 19(4) authorizes the public authorities to issue regulations on the rules and conditions governing the establishment of subsidiary offices by trade unions; and

–           section 12 authorizes the public authorities to issue regulations on the rules and conditions according to which the trade union conference will examine any violations of the law committed by the trade union secretariat.

The Committee had previously requested the Government to consider repealing the abovementioned provisions and any regulations which might have been issued under them. The Committee notes that the Government indicates that section 15 provides for an internal review process that does not involve the intervention of any body, and in particular of the State. Concerning section 19(4), the Government indicates that it is the basic statutes of trade unions which decide on entrusting them with the task of formulating rules and conditions specific to the establishment of subsidiary offices. Finally, as regards section 12, the Government asserts that it is not the State but the congress or the general assembly of the trade union itself which takes decisions to examine violations of the law committed by the secretariat, and that regulations applying section 12 recall that the State does not intervene in the process. While it takes due note of the Government’s statement, the Committee is however of the opinion that the particulars contained in sections 12, 15 and 19(4) of Act No. 23 tend to over-regulate the internal functioning of trade unions and may pose a serious risk of interference by the public authority. The Committee considers that more autonomy should be left in regard to the matters concerned to the trade unions themselves. Consequently, the Committee once again requests the Government to consider repealing sections 12, 15 and 19(4) of Act No. 23 of 1998 and any regulations which might have been issued under them and requests the Government to provide information on the progress made in this respect.

Conciliation and arbitration procedure. In its previous comments, the Committee had noted that, according to section 150 of the Labour Code, the previous exhaustion of all conciliation and arbitration procedures is a condition for a lawful strike and that section 176 imposes a penalty of imprisonment of one month or a fine against any person who contravenes this provision. The Committee had noted that the conciliation and arbitration procedures, as laid down in sections 138–146, apply to cases of “collective labour disputes” where the dispute involves 40 per cent of workers in the undertaking, establishment, factory or branch of activity. These procedures, moreover, may be launched at the initiative of one of the parties to the dispute and include, after an initial period of mediation, compulsory recourse to arbitration, the outcome of which is binding on the parties who, according to section 146, are not entitled to raise the matter again for two years. The Committee had also observed that section 151 allows a strike only if one of the parties fails to give effect to a final settlement reached in accordance with the abovementioned procedures, and that section 177 imposes a fine against any person who goes on strike in violation of this provision. The Committee notes that in its report the Government indicates that Act No. 12 of 2010 which relates to labour relations has reduced the percentage from 40 per cent to 25 per cent of workers in the undertaking for cases of “collective labour disputes” where the conciliation and arbitration procedures apply. Furthermore, the Government indicates that the new Act transfers the resolution of labour conflicts to the Conciliation Council and Arbitration Board, and that regulations clarify procedures governing this point. Other regulations putting the Act into effect are being prepared. The Committee requests the Government to provide a copy of Act No. 12 of 2010, as well as all regulations putting it into effect, in particular those in relation to conciliation and arbitration procedures.

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The Committee notes the comments submitted by the International Trade Union Confederation (ITUC) on 29 August 2008 reiterating its comments on issues under examination by the Committee, in particular relating to the absence of independent trade unions. The Committee also notes the comments from the General Union of Producers dated 30 November 2006 which addressed previous comments from the International Confederation of Trade Unions (ICFTU – now the ITUC). The Government is requested to provide its observations in reply to the ITUC’s latest comments.

Article 2 of the Convention. Right of workers and employers without distinction whatsoever to establish and join organizations of their own choosing. Foreign workers. Previously the Committee had referred to section 118(1) of the Labour Code and section 9 of Act No. 20 of 1991 on the promotion of liberty, which reserve the right to establish and join trade unions for Libyan citizens or nationals. The Committee had noted the Government’s indication that section 2 of Act No. 23 of 1998 concerning the right of affiliation does not make any distinction between nationals and foreigners, that section 118 has been annulled by section 38 of Act No. 107, and that section 9 of Act No. 20 of 1991 does not prohibit foreigners from joining trade unions even if its text mentions citizens. In its report of 2008, the Government reiterates that foreign workers who are legal residents are guaranteed the right to join trade unions in accordance with Act No. 23. Consequently, in practice a large number of foreign workers have joined trade unions (available data for 2007 showed that 290 foreign workers joined trade unions). The Government adds that section 5 of Act No. 23 specifies that a condition for the selection of the members of the executive boards of trade unions and occupational associations is that the applicant should be a citizen of the Libyan Arab Jamahiriya, which shows that foreign workers are entitled to join these trade unions and occupational associations. The Government however indicates that section 5 is currently being revised so as to confer the right to foreign workers to stand for membership on the executive boards. The Committee takes due note of these indications and requests the Government to provide information on the amendment of Act No. 23 with regard to foreign workers’ access to executive boards of trade unions. Furthermore, while noting all the explanations given by the Government and in order to ensure that all relevant laws are consistent, the Committee requests the Government to take the necessary measures to amend section 9 of Act No. 20 of 1991 so as to expressly provide for the right of foreign nationals to establish or join trade unions or delete the specific reference to Libyan citizens or nationals with regard to the right to establish and join trade unions.

Minimum age for admission to trade union membership. The Committee had previously noted that the minimum age of 18 years for admission to trade union membership set out in section 118(2) of the Labour Code does not correspond to the minimum age for admission to employment and had requested the Government to modify the legislation so as to bring the age limit for trade union membership into line with the minimum age required for admission to employment. The Committee notes from the Government’s report that section 118 of the Labour Code was repealed and that Act No. 23 of 1998 on trade unions, federations and professional associations – promulgated after Act No. 107 of
1975 – does not specify any age condition in establishing trade unions and professional associations, the reason being that, by virtue of section 92 of the Labour Code, the Minister may issue an order determining the employment of persons under the age of 18 years in some industries and tasks, and these workers should fully enjoy their trade union rights as long as they are employed. The Committee notes this information.

Trade union monopoly. The Committee had previously noted that section 2 of Act No. 23 of 1998 and section 116 of the Labour Code prohibit the establishment of more than one trade union or professional association in the same occupation or industry. It had requested the Government to explicitly repeal sections 115–137 of the Labour Code in order to avoid any ambiguity as to the status of those provisions of law. It had also noted that section 2 of Act No. 23 of 1975 specified that “the establishment of more than one trade union or association in the same occupation shall not be authorized”. The Committee notes from the Government’s report that sections 115–137 of the Labour Code have been annulled by virtue of section 38 of Act No. 107 of 1975. The Government also provided details on the hierarchical structure of trade unions in the framework of Act No. 23 of 1998 but does not specify if section 2 of Act No. 23 of 1998 has been amended as requested previously. The Committee, while noting this information, recalls once again that, although it is generally to the advantage of workers and employers to avoid proliferation of competing organizations, trade union unity directly or indirectly imposed by law runs counter to the standards expressly laid down in the Convention, which require trade union diversity to remain possible in all cases. The Committee once again requests the Government to amend section 2 of Act No. 23 of 1998 by explicitly removing the prohibition of the establishment of more than one trade union or association in the same occupation, so as to give full effect to the right of workers to establish and join organizations of their own choosing, including more than one union in a given occupation.

Minimum membership required to register a trade union. The Committee had previously referred to the minimum membership of 100 workers for a trade union to be registered under section 120 of the Labour Code. The Committee had noted the Government’s indication that section 1 of the regulations issued pursuant to Act No. 23 of 1998 has fixed 100 members as a minimum membership, whereas the legislature has authorized a membership of 50 workers to set up a basic trade union in productive and service units so as to encourage the success of trade union activity. The Committee recalls once again that the establishment of a trade union may be considerably hindered, or even rendered impossible, when legislation fixes the minimum number of members of a trade union at obviously too high a figure, as is the case, for example, where legislation requires that a union must have at least 100 or 50 founder members. The Committee notes that the Government does not provide any information in this respect. It once again asks the Government to take the necessary measures to modify the law and regulations so as to reduce the minimum number of members required to form a union to a reasonable level.

Trade union registration. Previously, the Committee had noted that section 19 of Act No. 23 of 1998 governs the registration of trade unions. The Committee once again requests the Government to transmit the texts of any regulations issued under Chapter XIX of Act No. 23 of 1998 as well as the standard registration form mentioned therein.

Article 3 of the Convention. Right of workers’ and employers’ organizations to organize their administration. The Committee had previously noted that section 9 of Act No. 23 of 1998 provides for the structure of trade unions and, moreover, that sections 1, 2, and 3 of the regulations putting this section into effect clarify this structure. It noted, in this respect that, according to section 9 of Act No. 23, conferences of trade unions, trade union federations and professional associations shall hold annual meetings for the discussion and examination of items that lie before them. The Committee once again asks the Government to submit a copy of regulations putting into effect section 9 of Act No. 23 of 1998.

Right to elect representatives in full freedom. In relation to the eligibility requirement for a trade union office, the Committee had noted that, according to section 125(1) of the Labour Code, a worker must not have interrupted the exercise of the relevant occupation for more than one year and that, according to the Government, the enforcing regulations of section 8 of Act No. 23 of 1998 require members of a trade union’s secretariat to hold office for a minimum period of four years. In its report, the Government reiterates that section 125 of the Labour Code has been annulled and states that the election of representatives takes place in all freedom. The Committee recalls that provisions which require all candidates for trade union office to belong to the respective occupation and to be actually employed in this occupation during a certain period before their election, interfere with the members’ right to elect representatives in full freedom, for example, by preventing qualified persons such as full-time union officers or pensioners from carrying out union duties or by depriving unions of the benefit of the experience of certain officers when they are unable to provide enough qualified persons from among their own ranks. Furthermore, the Committee reiterates its view that would be desirable to make the legislation more flexible, either by admitting as candidates persons who have previously been employed in the occupation concerned, or by exempting from the occupational requirement a reasonable proportion of the officers of an organization (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 117). Accordingly, the Committee trusts that the Government will take the above principles into consideration in order to amend the enforcing regulations of Chapter VIII of Act No. 23 of 1998, and will provide information on any progress made in this respect.

Eligibility subject to a nationality requirement (section 125(2) of the Labour Code). The Committee had previously noted that regulations putting into effect section 8 of Act No. 23 of 1998 stipulate Libyan nationality as a condition for membership on the secretariat of a trade union. It had recalled that, where provisions on nationality are too strict, they could deprive certain categories of workers, like migrant workers in sectors where they account for a significant share of the workforce, from the right to elect their representatives in full freedom. The Committee had also recalled that foreign workers should be allowed to take up trade union office at least after a reasonable period of residence in the host country (see General Survey, op. cit., paragraph 118). Accordingly, the Committee requests the Government to take the necessary measures to amend the regulations relating to section 8 of Act No. 23 of 1998 in order to allow foreign workers to take up trade union office, and to provide information on progress made in this respect.

Right to organize their administration and to formulate their programmes. Previously, the Committee had noted that the following provisions of Act No. 23 of 1998 tend to over-regulate matters that should be left to the trade unions themselves and their by-laws, and therefore entail a risk of interference by the public authorities in trade union activities:

–           section 15 of Act No. 23 of 1998 spells out in detail the rules on the basis of which trade union subsidiary offices will be supervised by the trade union secretariat;

–           section 19(4) of Act No. 23 of 1998 authorizes the public authorities to issue regulations on the rules and conditions governing the establishment of subsidiary offices by trade unions;

–           section 12 of Act No. 23 of 1998 authorizes the public authorities to issue regulations on the rules and conditions according to which the trade union conference will examine any violations of the law committed by the trade union secretariat.

The Committee had requested the Government to consider repealing the abovementioned provisions and any regulations which might have been issued under them. Noting that the Government’s report does not provide any information in this respect, the Committee once again requests the Government to provide information on any measure taken with a view to repealing sections 12, 15 and 19(4) of Act No. 23 of 1998 and any regulations which might have been issued under them. The Committee also requests the Government to provide information on any regulations which may have been issued in the meantime under these provisions.

Furthermore, the Committee had previously noted that, according to section 19(5) of Act No. 23 of 1998, regulations will be issued on the rules and procedures concerning the practice of trade union activity and had requested the Government to transmit any regulations issued under this provision. In its report, the Government indicates that section 19(5) of Act No. 23 only provides for the special structure of trade unions or that of occupational associations, the mandate is left to be provided for by the basic statutes of the trade unions, and that no regulation has been adopted under the provision. The Committee takes note of this information. It requests the Government to provide in the future any regulation which may have been issued under section 19(5) of Act. No. 23 of 1998.

Conciliation and arbitration procedure. The Committee had previously noted that, according to section 150 of the Labour Code, the exhaustion of all conciliation and arbitration procedures is a condition for a lawful strike and that section 176 imposes a penalty of imprisonment of one month or a fine against any person who contravenes this provision. The Committee had noted that the conciliation and arbitration procedures, as laid down in sections 138–146, apply to cases of “collective labour disputes” where the dispute involves 40 per cent of workers in the undertaking, establishment, factory or branch of activity. These procedures, moreover, may be launched at the initiative of one of the parties to the dispute and include, after an initial period of mediation, compulsory recourse to arbitration, the outcome of which is binding on the parties who, according to section 146, are not entitled to raise the matter again for two years. The Committee had also observed that section 151 allows a strike only if one of the parties fails to give effect to a final settlement reached in accordance with the abovementioned procedures, and that section 177 imposes a fine against any person who goes on strike in violation of this provision. The Committee had recalled that provisions under which, at the request of one of the parties or at the discretion of the public authorities, disputes must be referred to a compulsory arbitration procedure leading to a final award binding on the parties concerned, may result in practice in the prohibition of strikes. The Committee had also emphasized that such a system makes it possible to prohibit virtually all strikes or to end them quickly, and that such a prohibition seriously limits the means available to trade unions to further and defend the interests of their members, as well as their right to organize their activities and to formulate their programmes, and is not compatible with Article 3 of the Convention (see General Survey, op. cit., paragraph 153). The Committee recalled that compulsory arbitration to end a collective labour dispute is only acceptable if it is at the request of both parties involved in a dispute, or if the strike in question may be restricted, even banned, for example in the case of disputes in the public service involving public servants exercising authority in the name of the State or in essential services in the strict sense of the term, namely those, the interruption of which, would endanger the life, personal safety or health of all or part of the population, and in a situation of acute national crisis.

The Committee takes due note from the Government’s report that its comments in this respect are being taken into consideration in the process of reviewing the Labour Code. The Committee trusts that its comments will be duly taken into account in the process of amendment to the provisions of the Labour Code on conciliation and arbitration procedures. It requests the Government to indicate any progress made in this respect.

The Committee recalls that the Government may avail itself of the technical assistance of the Office concerning all matters raised above if it so wishes.

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The Committee notes the Government’s report and its reply to the comments submitted by the International Confederation of Free Trade Unions (ICFTU) on 31 August 2005 relating to the absence of independent trade unions and the non-existence of trade union activity in practice. The Committee also notes that the ICFTU submitted a communication dated 10 August 2006 reiterating its previous comments. The Government indicates, in this respect, that the General Federation of the Jamahiriya’s Workers is an active member of the International Federation of Arab Trade Unions, the African Trade Union Organization, the Federation of the Unions of Coastal Countries and the World Confederation of Labour, attesting to the independence of the Libyan Arab Jamahiriya’s trade unions. As regards the lack of trade union activity in practice, the Government states that trade unions have convened several symposia, participated in regional and international activities, and publish periodicals and publications which contribute to encouraging workers to participate effectively in translating laws and decisions relating to work.

The Committee takes note of the Government’s indication that section 38 of Act No. 107 of 1975 annuls Chapter 4 (sections 115-137) of the Labour Code, various provisions of which the Committee had commented upon on previous occasions.

Article 2 of the Convention. Right of workers and employers without distinction whatsoever to establish and join organizations of their own choosing. Exclusion of certain categories of worker from the right to organize. The Committee had previously referred to section 1 of the Labour Code of 1970, which excludes from the scope of the Labour Code certain categories of worker (domestic workers, rural workers, seafarers and public employees). The Committee takes note of the Government’s statement that, as indicated in section 2 of Act No. 23 of 1998 on trade unions, federations and professional associations, the right of affiliation is a principle established for everyone without discrimination, and that this principle is enshrined in section 1 of Act No. 107 of 1975. The Committee notes this information.

Foreign workers. Previously the Committee had referred to section 118(1) of the Labour Code and section 9 of Act No. 20 of 1991 on the promotion of liberty, which reserve the right to establish and join trade unions for Libyan citizens or nationals. The Committee notes the Government’s indications that section 2 of Act No. 23 of 1998 concerning the right of affiliation does not make any distinction between nationals and foreigners, that section 118 has been annulled by section 38 of Act No. 107, and that section 9 of Act No. 20 of 1991 does not prohibit foreigners from joining trade unions even if its text mentions citizens. In this connection, the Committee requests the Government to take the necessary measures to amend section 9 of Act No. 20 of 1991 so as to expressly provide for the right of foreign nationals to establish or join trade unions.

Minimum age for admission to trade union membership. The Committee had previously noted that the minimum age of 18 years for admission to trade union membership set out in section 118(2) of the Labour Code does not correspond to the minimum age for admission to employment. The Committee notes the Government’s indications that section 118 was amended by Act No. 107 of 1975, that section 5 of Act No. 7 of 1975 establishes a minimum age of 18 years as a condition for joining a trade union, and that the age requirement was appropriate as it enabled members to play a role after he or she had acquired some work experience and therefore possessed the ability to discuss in all objectivity subjects submitted to a trade union. In this connection, the Committee recalls that it considers that the age limit for admission to the membership of a trade union should be the same as that for admission to employment. The Committee requests the Government to take the necessary steps to modify the legislation accordingly.

Prohibition of membership of more than one trade union. Previously the Committee had referred to section 118(3) of the Labour Code, which prohibits membership in more than one trade union. In this regard the Committee takes due note of the Government’s indication that this section was annulled and that, under Chapter II of Act No. 23 of 1998, workers may join more than one union should they possess more than one occupation.

Trade union monopoly (section 2 of Act No. 23 of 1998 and section 116 of the Labour Code prohibit the establishment of more than one trade union or professional association in the same occupation or industry). The Committee had previously requested the Government to explicitly repeal sections 115-137 of the Labour Code in order to avoid any ambiguity as to the status of those provisions of law. In this respect, the Government indicates that, although it confirms the annulment of section 118(3) of the Labour Code, section 2 of Act No. 23 of 1998 nevertheless specifies that “the establishment of more than one trade union or association in the same occupation shall not be authorized”. The Committee further notes the Government’s statement that the purpose of this section is to focus the trade union effort deployed by workers, and not disperse it in more than one field in the same occupation. In this connection, the Committee recalls once again that, although it is generally to the advantage of workers and employers to avoid proliferation of competing organizations, trade union unity directly or indirectly imposed by law runs counter to the standards expressly laid in the Convention, which requires trade union diversity to remain possible in all cases. The Committee requests the Government to amend section 2 of Act No. 23 of 1998 so as to give full effect to the right of workers to establish and join organizations of their own choosing, including more than one union in a given occupation.

Minimum membership required to register a trade union. The Committee had previously referred to the minimum membership of 100 for a trade union to be registered under section 120 of the Labour Code. The Government states in this regard that section 1 of the regulations issued pursuant to Act No. 23 of 1998 has fixed 100 members as a minimum membership, whereas the legislature has authorized a membership of 50 workers to set up a basic trade union in productive and service units so as to encourage the success of trade union activity. In this respect, the Committee recalls that the establishment of a trade union may be considerably hindered, or even rendered impossible, when legislation fixes the minimum number of members of a trade union at obviously too high a figure, as is the case, for example, where legislation requires that a union must have at least 100 or 50 founder members. The Committee asks the Government to take the necessary measures to modify the laws so as to reduce the minimum number of members required to form a union.

Trade union registration. Previously, the Committee had requested the Government to provide information concerning the competent authority and the applicable procedure for the registration of trade unions, and to transmit the texts of any regulations issued under section 19 of Act No. 23 of 1998 as well as the standard registration form mentioned therein. The Committee notes that the Government confirms that Act No. 23 of 1998 governs the registration of trade unions. In these circumstances, the Committee once again asks the Government to transmit the texts of any regulations issued under Chapter XIX of Act No. 23 of 1998 as well as the standard registration form mentioned therein.

Article 3 of the Convention. Right of workers’ and employers’ organizations to organize their administration. The Committee had previously referred to the requirement of the approval of the Ministry of Labour and Social Affairs for trade unions to establish subsidiary offices, in accordance with section 136 of the Labour Code. The Committee notes the Government’s indication that section 9 of Act No. 23 of 1998 provides for the structure of trade unions and, moreover, that sections 1, 2, and 3 of the regulations putting this section into effect clarify this structure. The Committee notes, in this respect, that section 9 of Act No. 23 of 1998 provides that conferences of trade unions, trade union federations and professional associations shall hold annual meetings for the discussion and examination of items that lie before them, but otherwise does not indicate whether trade unions require the approval of the Ministry of Labour and Social Affairs to establish subsidiary offices. Accordingly, the Committee asks the Government to submit a copy of the regulations putting into effect section 9 of Act No. 23 of 1998 and to indicate whether or not trade unions must seek the approval of the Ministry of Labour and Social Affairs before establishing subsidiary offices.

Right to elect representatives in full freedom. The Committee had previously noted that section 125(7) of the Labour Code provides that candidates to trade union office should have engaged in the trade or occupation for at least three years, and section 118, which adds that in order to qualify for trade union membership, which is an eligibility requirement for office according to section 125(1), a worker must not have interrupted the exercise of the relevant occupation for more than one year. In this regard the Committee notes the Government’s indication that the enforcing regulations of section 8 of Act No. 23 of 1998 requires members of a trade union’s secretariat to hold office for a minimum period of four years. The Committee considers that provisions which require all candidates for trade union office to belong to the respective occupation and to be actually employed in this occupation during a certain period before their election, interfere with the member’s right to elect representatives in full freedom, for example, by preventing qualified persons such as full-time union officers or pensioners from carrying out union duties or by depriving unions of the benefit of the experience of certain officers when they are unable to provide enough qualified persons from among their own ranks. The Committee is of the view that, in order to bring such legislation into conformity with the Convention, it would be desirable to make it more flexible, either by admitting as candidates persons who have previously been employed in the occupation concerned, or by exempting from the occupational requirement a reasonable proportion of the officers of an organization (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 117). Accordingly, the Committee requests the Government to amend the enforcing regulations of Chapter VIII of Act No. 23 of 1998 in keeping with the above principle.

Eligibility subject to a nationality requirement (section 125(2) of the Labour Code). The Committee had previously noted that section 125(2) of the Labour Code provides that candidates for trade union office are eligible only if they are of Libyan nationality. The Committee notes that the Government states that the regulations putting into effect section 8 of Act No. 23 of 1998 stipulate Libyan nationality as a condition for membership on the secretariat of a trade union. The Committee recalls in this respect that it considers that, where provisions on nationality are too strict, they could deprive certain categories of workers, like migrant workers in sectors where they account for a significant share of the workforce, from the right to elect their representatives in full freedom. The Committee further recalls that foreign workers should be allowed to take up trade union office at least after a reasonable period of residence in the host country (see General Survey, op. cit., paragraph 118). The Committee requests the Government to amend the regulations relating to section 8 of Act No. 23 of 1998 accordingly.

Right to organize their administration and to formulate their programmes. The Committee notes that certain provisions of Act No. 23 of 1998 tend to over-regulate matters that should be left to the trade unions themselves and their by-laws, and therefore entail a risk of interference by the public authorities in trade union activities:

–         section 15 of Act No. 23 of 1998 spells out in detail the rules on the basis of which trade union subsidiary offices will be supervised by the trade union secretariat;

–         section 19(4) of Act No. 23 of 1998 authorizes the public authorities to issue regulations on the rules and conditions governing the establishment of subsidiary offices by trade unions;

–         section 12 of Act No. 23 of 1998 authorizes the public authorities to issue regulations on the rules and conditions according to which the trade union conference will examine any violations of the law committed by the trade union secretariat.

The Committee notes that the Government provides no information concerning the above provisions. It once again requests the Government to consider repealing both the abovementioned provisions and any regulations which might have been issued under them. The Committee also requests the Government to once again provide information on any regulations which may have been issued in the meantime under these provisions. The Committee notes furthermore that, according to section 19(5) of Act No. 23 of 1998, regulations will be issued on the rules and procedures concerning the practice of trade union activity. The Committee requests the Government to transmit in its next report the text of any regulations issued under this provision.

Conciliation and arbitration procedure. The Committee had previously noted that, according to section 150 of the Labour Code, the exhaustion of all conciliation and arbitration procedures is a condition for a lawful strike or a lockout and that section 176 imposes a penalty of imprisonment of one month or a fine against any person who contravenes this provision. The Committee noted that the conciliation and arbitration procedures, as laid down in sections 138-146, apply to cases of “collective labour disputes” where the dispute involves 40 per cent of workers in the undertaking, establishment, factory or branch of activity. These procedures, moreover, may be launched at the initiative of one of the parties to the dispute and include, after an initial period of mediation, compulsory recourse to arbitration, the outcome of which is binding on the parties who, according to section 146, are not entitled to raise the matter again for two years. The Committee had also observed that section 151 allows a strike or a lockout only if one of the parties fails to give effect to a final settlement reached in accordance with the abovementioned procedures, and that section 177 imposes a fine against any person who goes on strike in violation of this provision. The Committee notes in this respect that the Government restates sections 150 and 152 of the Labour Code, but otherwise provides no information concerning this matter. In these circumstances, the Committee once again recalls that provisions under which, at the request of one of the parties or at the discretion of the public authorities, disputes must be referred to a compulsory arbitration procedure leading to a final award binding on the parties concerned, may result in practice in the prohibition of strikes. The Committee emphasizes yet again that such a system makes it possible to prohibit virtually all strikes or to end them quickly, and that such a prohibition seriously limits the means available to trade unions to further and defend the interests of their members, as well as their right to organize their activities and to formulate their programmes, and is not compatible with Article 3 of the Convention (see General Survey, op. cit., paragraph 153). The Committee recalls that compulsory arbitration to end a collective labour dispute is only acceptable if it is at the request of both parties involved in a dispute, or if the strike in question may be restricted, even banned, for example in the case of disputes in the public service involving public servants exercising authority in the name of the State or in essential services in the strict sense of the term, namely those, the interruption of which, would endanger the life, personal safety or health of all or part of the population, and in a situation of acute national crisis. The Committee once again asks the Government to take the necessary measures to amend the provisions of Chapter V of the Labour Code to bring them into harmony with the above principles, and to keep it informed in this respect.

Articles 2 and 3. Dissolution of organizations on grounds which are contrary to the principles of freedom of association. The Committee takes note of the Government’s statement that dissolution is done in accordance with section 4 of Act No. 23 of 1998. The Committee notes in this regard that section 4(7) of Act No. 23 of 1998 provides that unions shall formulate by-laws governing their dissolution.

Article 5. Right of trade unions to establish federations and confederations. The Committee takes note of the Government’s indication that section 2 of Act No. 23 of 1998 provides that trade unions, federations and professional associations have the right to set up confederations at the national level, as well as to be affiliated with Arab, regional and international trade union organizations.

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The Committee notes the Government’s report and the regulations issued under Act No. 23 of 1998 on trade unions, federations and professional associations. It also notes the comments made by the International Confederation of Free Trade Unions (ICFTU) relating to the absence of independent trade unions, the non-existence of trade union activity in practice and the failure to recognize the trade union rights of migrant workers. It requests that the Government provide its observations on these matters.

The Committee recalls that its previous comments related principally to the following points.

Article 2 of the Convention. Right of workers and employers without distinction whatsoever to establish and join organizations of their own choosing.

-  the trade union rights of certain categories of workers excluded from the scope of the Labour Code of 1970 under the terms of section 1 (domestic workers, rural workers, seafarers and public employees);

-  the right to establish and join trade unions is reserved for Libyan citizens or nationals by virtue of section 118(1) of the Labour Code and section 9 of Act No. 20 of 1991 on the promotion of liberty;

-  the minimum age for admission to trade union membership does not correspond to the minimum age for admission to employment (section 118(2) of the Labour Code);

-  the prohibition of membership of more than one trade union (section 118(3) of the Labour Code);

-  trade union monopoly (Chapter II of Act No. 23 of 1998 and section 116 of the Labour Code prohibit the establishment of more than one trade union or professional association in the same occupation or industry);

-  the minimum membership required to register a trade union (by virtue of section 120 of the Labour Code, a list has to be provided of all the names of the members of a trade union, which should not be fewer than 100);

-  trade union registration (the contradiction between Chapter V of Act No. 23 of 1998 and sections 120 to 124 of the Labour Code respecting the competent authority and the procedure for the registration of trade unions).

Article 3. Right of workers’ and employers’ organizations to draw up their constitutions and rules, elect their representatives in full freedom and organize their administration and activities.

-  the establishment of trade union subsidiary offices requires the approval of the Ministry of Labour and Social Affairs, in accordance with section 136 of the Labour Code;

-  the right to elect trade union leaders in full freedom is conditional upon them having been engaged in the trade or occupation for at least three years (by virtue of section 125(7) of the Labour Code);

-  eligibility is subject to a nationality requirement (section 125(2) of the Labour Code);

-  over-regulation of the right of trade unions to organize their administration and to formulate their programmes, thereby entailing a risk of interference by the public authorities in trade union activities (Chapters XII, XV and XIX(4) of Act No. 23 of 1998 and sections 126, 127(4) and (5), 130 and 131 of the Labour Code);

-  the need to exhaust all conciliation and arbitration procedures for a strike to be lawful (Chapter V of the Labour Code);

-  referral to compulsory arbitration at the request of one of the parties (Chapter V of the Labour Code).

Articles 2 and 3. Dissolution of organizations on grounds which are contrary to the principles of freedom of association.

-  dissolution of a trade union at the request of the Minister of Labour and Social Affairs for reasons related, among others, to the assessment of the effectiveness of the trade union’s action or a refusal by the trade union to be inspected (section 134 of the Labour Code).

Article 5. Right of trade unions to establish federations and confederations.

-  prohibition of the establishment in the Libyan Arab Jamahiriya of more than one trade union federation (section 137 of the Labour Code and Chapter XVII of Act No. 23 of 1998);

-  prohibition for trade unions to have any direct or indirect connection with a foreign trade union (section 127(2) of the Labour Code).

The Committee notes the Government’s indication that Chapter IV, sections 115-137, of the Labour Code were "annulled" by section 38 of Act No. 107 of 1975, which was in turn annulled by Act No. 23 of 1998. The Committee notes that, under the terms of Chapter XX of Act No. 23 of 1998, any provision which is not in conformity with the Act is annulled. Under these conditions, and in order to prevent any ambiguity in this respect, the Committee requests the Government to explicitly repeal the provisions of sections 115-137 of Chapter IV of the Labour Code. The Committee also requests that the Government provide a copy of Act No. 107 and, as appropriate, a consolidated version of the Labour Code.

With regard to the provisions of the Labour Code other than those contained in Chapter IV, the Committee notes from the Government’s report that the Industrial Relations Bill which is to amend section 1 of the Labour Code of 1970 (which excludes from its scope domestic workers, rural workers, seafarers and public employees) has not yet been enacted. The Committee hopes that this Bill will be adopted in the near future and asks the Government to provide a copy with its next report.

The Committee also notes that, with regard to the right to strike, the Government’s report refers to the provisions that are in force in Chapter V of the Labour Code, but does not reply to the concerns expressed by the Committee, which related to recourse to compulsory arbitration. The Committee recalls in this respect that provisions under which, at the request of one of the parties or at the discretion of the public authorities, disputes must be referred to a compulsory arbitration procedure leading to a final award which is binding on the parties concerned, may result in practice in the prohibition of strikes. The Committee emphasizes that such a system makes it possible to prohibit virtually all strikes or to end them quickly, and that such a prohibition seriously limits the means available to trade unions to further and defend the interests of their members, as well as their right to organize their activities and to formulate their programmes, and is not compatible with Article 3 of the Convention (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 153). The Committee notes that compulsory arbitration to end a collective labour dispute is only acceptable if it is at the request of both parties involved in a dispute, or if the strike in question may be restricted, even banned, i.e. in the case of disputes in the public service involving public servants exercising authority in the name of the State or in essential services in the strict sense of the term, namely those the interruption of which would endanger the life, personal safety or health of all or part of the population, and in a situation of acute national crisis. The Committee once again asks the Government to take the necessary measures to amend the provisions of Chapter V of the Labour Code to bring them into harmony with the above principles, and to keep it informed in this respect.

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The Committee notes that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

The Committee takes note of the Government’s first report and notes in particular that a new Code on Labour Relations is under preparation. In addition, the Committee observes that the adoption of regulations is envisaged under Chapters XIX(1-5), XII and X of Act No. 23 of 1998 on Trade Unions, Federations and Professional Associations, and under sections 1 and 118 of the Labour Code and requests the Government to transmit with its next report the texts of any regulations issued under these provisions. The Committee also notes the comments made by the International Confederation of Free Trade Unions and requests the Government to transmit its observations thereon for examination at its next meeting.

The Committee wishes to raise the following points concerning the application of the provisions of the Convention.

Article 2. Right of all workers and employers without distinction
to establish and join organizations of their own choosing

The right of employers to establish organizations. The Committee notes that article 9 of Act No. 20 of 1991 on the Promotion of Liberty entitles all citizens to establish and join, inter alia, trade unions, federations and professional associations in order to protect their interests and pursue legitimate objectives. Noting that the Convention applies to both workers and employers, the Committee requests the Government to specify how employers’ rights to form organizations in defence of their interests is ensured, and to provide any relevant texts.

Exemptions from the scope of the law. The Committee notes that section 1 of the Labour Code of 1970 excludes from the scope of its provisions domestic workers, rural workers, seafarers and public employees, and provides that their situation will be regulated by special Acts, orders or regulations. The Committee requests the Government to specify the manner in which freedom of association is guaranteed to these categories of workers and to transmit any relevant legal texts.

Inter-professional organizations. The Committee notes that section 1 of Chapter I of Act No. 23 of 1998 on Trade unions, Federations and Professional Associations, defines a trade union as an organization which includes workers employed in the same trade, occupation, handiwork, industry or service which are interrelated or associated in producing the same goods, and that section 2 defines a professional association as an organization whose members share artistic or scientific talents or the same profession. The Committee notes that restrictions may be applied to first-level organizations to the effect that members of a trade union must belong to the same or a similar profession, occupation or branch of activity, on condition that these organizations be free to establish inter-professional organizations and to join federations and confederations in the form and manner deemed most appropriate by the workers or employers concerned. (see General Survey on freedom of association and collective bargaining, 1994, paragraph 84) The Committee requests the Government to specify whether trade unions have the right to establish inter-professional organizations.

Foreign workers. The Committee notes that section 118(1) of the Labour Code and article 9 of Act No. 20 of 1991 on the Promotion of Liberty reserve the right to establish and join trade unions to Libyan citizens or nationals and that section 118 of the Labour Code makes reference to rules which will be issued by order of the Minister of Labour and Social Affairs on the right of workers other than Libyan nationals to join trade unions. The Committee notes that the rights provided by the Convention should be recognized to all workers without distinction based on nationality, including anyone working in the territory of the State. The Committee requests the Government to indicate the regulations on the basis of which foreign workers have the right to join trade unions and to provide copies of the relevant texts.

Minimum age. The Committee notes that section 118(2) of the Labour Code provides that in order to qualify for trade union membership a worker must be at least 18 years of age. The Committee considers that the age limit for admission to trade union membership should be the same as the limit for admission to employment and notes that the Government has made a declaration at the time of ratification of Convention No. 138 to the effect that the minimum age for admission to employment in the Libyan Arab Jamahiriya is 15 years. The Committee requests the Government to modify section 118(2) of the Labour Code in order to bring the age limit for trade union membership in line with the minimum age required for admission to employment.

Membership in more than one trade union. The Committee observes that section 118(3) of the Labour Code provides that in order to qualify for trade union membership a worker must not be a member of any other trade union even if the worker is engaged in more than one occupation. The Committee considers that it would be desirable for workers exercising more than one occupational activity in different occupations or sectors to have the possibility of joining the corresponding trade unions.

Trade union monopoly. The Committee notes that Chapter II of Act No. 23 of 1998 on Trade Unions, Federations and Professional Associations and section 116 of the Labour Code prohibit the establishment of more than one trade union or professional association in the same profession or industry. The Committee wishes to emphasize that although it is generally to the advantage of workers and employers to avoid proliferation of competing organizations, trade union unity directly or indirectly imposed by law runs counter to the standards expressly laid in the Convention which requires trade union diversity to remain possible in all cases. The Committee considers that there is a fundamental difference between, on the one hand, a trade union monopoly established or maintained by law and, on the other hand, voluntary groupings of workers or unions which occur (without pressure from the public authorities, or due to the law) because they wish, for instance, to strengthen their bargaining position, coordinate their efforts to tackle ad hoc difficulties which affect all their organizations, etc. (see General Survey, 1994, paragraph 91).

Minimum membership. The Committee observes that Chapter XIX(2) of Act No. 23 of 1998 on Trade Unions, Federations and Professional Associations refers to the possibility of issuing regulations on the minimum number of trade union members. The Committee notes at the same time that section 120 of the Labour Code indirectly establishes a minimum membership requirement by including among the documents required for registration of a trade union a list of all the names of trade union members which should not be less than 100. The Committee observes that minimum membership requirements should be fixed in a reasonable manner so that the establishment of organizations may not be hindered (see General Survey, 1994, paragraph 81). The Committee requests the Government to specify the applicable minimum membership requirements and in particular, to provide the text of any regulations which have been issued under Act No. 23 of 1998 in amendment of section 120 of the Labour Code.

Trade union registration. The Committee notes that Chapter VI of Act No. 23 of 1998 on Trade Unions, Federations and Professional Associations and section 119 of the Labour Code require the registration of trade unions as a prerequisite for the acquisition of legal personality. The Committee observes that there is a discrepancy between the two abovementioned instruments as to the competent authority and applicable procedure for carrying out the registration of trade unions, in that whereas Chapter V of Act No. 23 of 1998 lays down a registration procedure with the Secretariat of the Peoples’ Conference by filling in a standard form and providing the trade union’s bylaws, sections 120-124 of the Labour Code lay down a registration procedure with the Ministry of Labour and Social Affairs. The Committee requests the Government to provide information in its next report concerning the competent authority and the applicable procedure for the registration of trade unions and to transmit the texts of any regulations issued under Chapter XIX of Act No. 23 of 1998 as well as the standard registration form mentioned therein.

Article 3. Right of workers’ and employers’ organizations to draw
up their constitutions and rules, to elect their representatives in
full freedom and to organize their administration and activities

Right to draw up their constitutions and rules. The Committee notes that according to section 136 of the Labour Code, the constitution of trade union subsidiary offices shall be subject to the approval of the Minister of Labour and Social Affairs. The Committee observes that any legislative provisions concerning the approval of constitutions and rules of occupational organizations which go beyond formal requirements may hinder the establishment and development of organizations and constitute interference contrary to Article 3(2) of the Convention (see General Survey, 1994, paragraph 111). The Committee requests the Government to consider repealing this provision.

Right to elect their representatives. The Committee takes note of section 125(7) of the Labour Code which provides that candidates to trade union office should have engaged in the trade or occupation for at least three years and section 118 which adds that in order to qualify for trade union membership, which is an eligibility requirement for office according to section 125(1), a worker must have not interrupted the exercise of the relevant occupation for more than one year. The Committee considers that provisions which require all candidates for trade union office to belong to the respective occupation and to be actually employed in this occupation during a certain period before their election interfere with the organization’s right to elect representatives in full freedom, for example, by preventing qualified persons such as full-time union officers or pensioners from carrying out union duties or by depriving unions of the benefit of the experience of certain officers when they are unable to provide enough qualified persons from among their own ranks. The Committee also notes that when national legislation imposes conditions of this kind on all trade union leaders, there is a real risk of interference by the employer through the dismissal of trade union officers, which deprives them of their trade union office. The Committee is of the view that in order to bring such legislation into conformity with the Convention, it would be desirable to make it more flexible, either by admitting as candidates persons who have previously been employed in the occupation concerned, or by exempting from the occupational requirement a reasonable proportion of the officers of an organization (see General Survey, 1994, paragraph 117).

Furthermore, the Committee observes that section 125(2) of the Labour Code provides that candidates are eligible only if they are of Libyan nationality. The Committee is of the view that where provisions on nationality are too strict, they could deprive certain categories of workers, like migrant workers in sectors where they account for a significant share of the workforce, from the right to elect their representatives in full freedom. The Committee recalls that foreign workers should be allowed to take up trade union office at least after a reasonable period of residence in the host country (see General Survey, 1994, paragraph 118).

Right to organize their administration and to formulate their programmes. The Committee notes that certain provisions of the Act No. 23 of 1998 on Trade Unions, Federations and Professional Associations tend to overregulate matters that should be left to the trade unions themselves and their bylaws, and therefore entail a risk of interference by the public authorities in trade union activities:

-  Chapter XV of Act No. 23 of 1998 on Trade Unions, Federations and Professional Associations spells out in detail the rules on the basis of which trade union subsidiary offices will be supervised by the trade union secretariat.

-  Chapter XIX(4) of Act No. 23 of 1998 on Trade Unions, Federations and Professional Associations authorizes the public authorities to issue regulations on the rules and conditions governing the establishment of subsidiary offices by trade unions.

-  Chapter XII of Act No. 23 of 1998 on Trade Unions, Federations and Professional Associations authorizes the public authorities to issue regulations on the rules and conditions according to which the trade union conference will examine any violations of the law committed by the trade union secretariat.

The Committee requests the Government to consider repealing both the abovementioned provisions and any regulations which might have been issued under them. The Committee also requests the Government to provide information on any regulations which may have been issued in the meantime under these provisions.

The Committee notes moreover that certain provisions of the Labour Code overregulate matters relative to the exercise of trade union activities and the formulation of their programmes:

-  section 131 of the Labour Code requires trade unions to send notice of their general meetings and their agenda to the General Directorate of Labour at least 15 days in advance of their meeting and to send a copy of the minutes to the General Directorate of Labour within 15 days after the meeting. It also entitles the Director-General of Labour to be represented by an official at the meeting;

-  paragraph 2 of section 131 of the Labour Code provides that any decision taken by a trade union’s general meeting in violation of the provisions of this Code, the regulations thereunder or the rules of the trade union shall be null and void;

-  section 126 of the Labour Code authorizes the public authorities (Director of Labour and labour inspectors) to inspect the trade union’s registers and documents and requires trade union officials to give public officials every facility in this respect;

-  section 126(4) of the Labour Code places a cap on the administrative costs of the trade union which shall not exceed 30 per cent of its annual revenue.

-  section 127(4) and (5) of the Labour Code prohibits trade unions from accepting donations or legacies and ceding any part of their assets by way of donation or legacy without specific authorization from the Minister of Labour and Social Affairs;

-  section 130 of the Labour Code enables the Director-General of Labour to demand any details from the trade union concerning its financial situation.

The Committee notes furthermore that according to Chapter XIX(5) of Act No. 3 of 1998 on Trade Unions, Federations and Professional Associations, regulations will be issued on the rules and procedures concerning the practice of trade union activity. The Committee requests the Government to transmit in its next report the text of any regulations issued under this provision.

The right to strike. The Committee observes that according to section 150 of the Labour Code the exhaustion of all conciliation and arbitration procedures is a condition for a lawful strike or a lockout and that section 176 imposes a penalty of imprisonment of one month or a fine against any person who contravenes this provision. The Committee notes that the conciliation and arbitration procedures as laid down in sections 138-146, apply to cases of "collective labour disputes" where the dispute involves 40 per cent of workers in the undertaking, establishment, factory or branch of activity. The Committee notes moreover, that these procedures may be launched at the initiative of one of the parties to the dispute and include, after an initial period of mediation, compulsory recourse to arbitration the outcome of which is binding on the parties who, according to section 146, are not entitled to raise the matter again for two years. The Committee observes in addition that section 151 allows a strike or a lockout only if one of the parties fails to give effect to a final settlement reached in accordance with the abovementioned procedures, and that section 177 imposes a fine against any person who goes on strike in violation of this provision.

The Committee considers that provisions under which, at the request of one of the parties or at the discretion of the public authorities, disputes must be referred to a compulsory arbitration procedure leading to a final award which is binding on the parties concerned, result in practice in a prohibition of strikes. The Committee wishes to emphasize that such a system makes it possible to prohibit virtually all strikes or to end them quickly and that such a prohibition seriously limits the means available to trade unions to further and defend the interests of their members, as well as their right to organize their activities and to formulate their programmes, and is not compatible with Article 3 of the Convention (see General Survey, 1994, paragraph 153). The Committee requests the Government to consider amending these provisions in accordance with the abovementioned considerations so as to ensure that strike action remains possible at all times after exhaustion of a reasonable period of consultation and mediation procedures and that arbitration awards should only be binding in cases where both parties agree.

Articles 2 and 3. Dissolution of organizations on grounds which constitute interference with freedom of association principles. The Committee notes that section 134 of the Labour Code provides that the Minister of Labour and Social Affairs may request a court of first instance within whose jurisdiction the trade union headquarters are located to order the winding up of a trade union if, inter alia, it becomes evident that the trade union’s activities do not satisfactorily achieve the purpose for which the trade union was established or that the trade union is incapable of achieving such purposes (subsection 1), or if the trade union refuses inspection (subsection 2). The Committee wishes to underline that issues like the effectiveness of trade union action belong to the discretion of the trade unions themselves. The Committee considers that provisions which give the public authorities the possibility to lodge a court action based on their own evaluation of the impact of trade union action, constitute interference in the internal affairs of trade unions and therefore cannot serve as a legal ground for requesting their dissolution. Moreover, with regard to the possibility of requesting the dissolution of a trade union because of its refusal to accept inspection, the Committee has indicated that it considers the powers granted under section 126 for the inspection of trade union registers and documents as interference in the internal affairs of trade unions in violation of Article 3 of the Convention. Consequently, these provisions cannot serve as a justifiable ground for requesting the dissolution of trade unions. The Committee considers moreover that the possibility of obtaining the dissolution of trade unions on grounds which are contrary to freedom of association principles undermines the fundamental right of workers to establish occupational organizations contrary to the guarantees laid down in Article 2 of the Convention.

The Committee notes that section 135 of the Labour Code provides that in the case of voluntary or judicial winding up of a trade union, its liquid assets shall be deposited in a bank designated by the Ministry of Labour and Social Affairs and forwarded to the trade union that replaces the previous one, or if such a union is not set up within two years, be applied in the interests of the workers in the occupation concerned by order of the Minister of Labour and Social Affairs. The Committee wishes to emphasize that the distribution of trade union assets should be carried out in the first place in accordance with the bylaws of the trade union itself.

Article 5. Right of trade unions to establish federations and confederations. The Committee notes that section 137 of the Labour Code prohibits the establishment of more than one trade union federation in Libya and that Chapter XVII of Act No. 23 of 1998 on Trade Unions, Federations and Professional Associations refers to a single general confederation. The Committee considers that freedom of choice must be possible in all cases, especially when it comes to the establishment of federations and confederations (see General Survey, 1994, paragraph 194). The Committee requests the Government to indicate the measures taken or envisaged to ensure that the establishment of more than one federation and confederation is possible and to repeal any provisions which institutionalize a single organization.

The Committee notes that section 127(2) of the Labour Code prohibits trade unions from having any connection or direct or indirect relationship with any foreign trade union. The Committee further notes that section 137 provides that the single federation shall be entitled to affiliate with workers’ regional or international federations subject to the approval of the Ministry of Labour and Social Affairs. Yet, the Committee also observes that Chapter II of Act No. 23 of 1998 on Trade Unions, Federations and Professional Associations provides that trade unions or professional associations shall have the right to join international, regional and Arab organizations, while Chapter XVII(3) provides that the single federation will coordinate member trade unions with regard to external relations, regional and international conferences. The Committee observes that first level organizations as well as federations and confederations have the right to affiliate with international organizations of workers and employers freely and without interference from the public authorities (see General Survey, 1994, paragraph 196). The Committee requests the Government to specify whether first level trade unions as well as federations and confederations have the right to affiliate with international organizations of employers and workers without prior authorization. The Committee also requests the Government to repeal any provisions which may be interpreted as unduly restrictive of this right.

The Committee requests the Government to indicate in its next report the measures taken or envisaged to bring its legislation into conformity with the Convention on the abovementioned points. The Committee draws the Government’s attention to the availability of the technical assistance of the Office should it so desire.

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The Committee takes note with interest of the Government’s first report and notes in particular that a new Code on Labour Relations is under preparation. In addition, the Committee observes that the adoption of regulations is envisaged under Chapters XIX(1-5), XII and X of Act No. 23 of 1998 on Trade Unions, Federations and Professional Associations, and under sections 1 and 118 of the Labour Code and requests the Government to transmit with its next report the texts of any regulations issued under these provisions. The Committee also notes the comments made by the International Confederation of Free Trade Unions and requests the Government to transmit its observations thereon for examination at its next meeting.

The Committee wishes to raise the following points concerning the application of the provisions of the Convention.

Article 2. Right of all workers and employers without distinction
to establish and join organizations of their own choosing

The right of employers to establish organizations. The Committee notes that article 9 of Act No. 20 of 1991 on the Promotion of Liberty entitles all citizens to establish and join, inter alia, trade unions, federations and professional associations in order to protect their interests and pursue legitimate objectives. Noting that the Convention applies to both workers and employers, the Committee requests the Government to specify how employers’ rights to form organizations in defence of their interests is ensured, and to provide any relevant texts.

Exemptions from the scope of the law. The Committee notes that section 1 of the Labour Code of 1970 excludes from the scope of its provisions domestic workers, rural workers, seafarers and public employees, and provides that their situation will be regulated by special Acts, orders or regulations. The Committee requests the Government to specify the manner in which freedom of association is guaranteed to these categories of workers and to transmit any relevant legal texts.

Inter-professional organizations. The Committee notes that section 1 of Chapter I of Act No. 23 of 1998 on Trade unions, Federations and Professional Associations, defines a trade union as an organization which includes workers employed in the same trade, occupation, handiwork, industry or service which are interrelated or associated in producing the same goods, and that section 2 defines a professional association as an organization whose members share artistic or scientific talents or the same profession. The Committee notes that restrictions may be applied to first-level organizations to the effect that members of a trade union must belong to the same or a similar profession, occupation or branch of activity, on condition that these organizations be free to establish inter-professional organizations and to join federations and confederations in the form and manner deemed most appropriate by the workers or employers concerned. (see General Survey on freedom of association and collective bargaining, 1994, paragraph 84) The Committee requests the Government to specify whether trade unions have the right to establish inter-professional organizations.

Foreign workers. The Committee notes that section 118(1) of the Labour Code and article 9 of Act No. 20 of 1991 on the Promotion of Liberty reserve the right to establish and join trade unions to Libyan citizens or nationals and that section 118 of the Labour Code makes reference to rules which will be issued by order of the Minister of Labour and Social Affairs on the right of workers other than Libyan nationals to join trade unions. The Committee notes that the rights provided by the Convention should be recognized to all workers without distinction based on nationality, including anyone working in the territory of the State. The Committee requests the Government to indicate the regulations on the basis of which foreign workers have the right to join trade unions and to provide copies of the relevant texts.

Minimum age. The Committee notes that section 118(2) of the Labour Code provides that in order to qualify for trade union membership a worker must be at least 18 years of age. The Committee considers that the age limit for admission to trade union membership should be the same as the limit for admission to employment and notes that the Government has made a declaration at the time of ratification of Convention No. 138 to the effect that the minimum age for admission to employment in the Libyan Arab Jamahiriya is 15 years. The Committee requests the Government to modify section 118(2) of the Labour Code in order to bring the age limit for trade union membership in line with the minimum age required for admission to employment.

Membership in more than one trade union. The Committee observes that section 118(3) of the Labour Code provides that in order to qualify for trade union membership a worker must not be a member of any other trade union even if the worker is engaged in more than one occupation. The Committee considers that it would be desirable for workers exercising more than one occupational activity in different occupations or sectors to have the possibility of joining the corresponding trade unions.

Trade union monopoly. The Committee notes that Chapter II of Act No. 23 of 1998 on Trade Unions, Federations and Professional Associations and section 116 of the Labour Code prohibit the establishment of more than one trade union or professional association in the same profession or industry. The Committee wishes to emphasize that although it is generally to the advantage of workers and employers to avoid proliferation of competing organizations, trade union unity directly or indirectly imposed by law runs counter to the standards expressly laid in the Convention which requires trade union diversity to remain possible in all cases. The Committee considers that there is a fundamental difference between, on the one hand, a trade union monopoly established or maintained by law and, on the other hand, voluntary groupings of workers or unions which occur (without pressure from the public authorities, or due to the law) because they wish, for instance, to strengthen their bargaining position, coordinate their efforts to tackle ad hoc difficulties which affect all their organizations, etc. (see General Survey, 1994, paragraph 91).

Minimum membership. The Committee observes that Chapter XIX(2) of Act No. 23 of 1998 on Trade Unions, Federations and Professional Associations refers to the possibility of issuing regulations on the minimum number of trade union members. The Committee notes at the same time that section 120 of the Labour Code indirectly establishes a minimum membership requirement by including among the documents required for registration of a trade union a list of all the names of trade union members which should not be less than 100. The Committee observes that minimum membership requirements should be fixed in a reasonable manner so that the establishment of organizations may not be hindered (see General Survey, 1994, paragraph 81). The Committee requests the Government to specify the applicable minimum membership requirements and in particular, to provide the text of any regulations which have been issued under Act No. 23 of 1998 in amendment of section 120 of the Labour Code.

Trade union registration. The Committee notes that Chapter VI of Act No. 23 of 1998 on Trade Unions, Federations and Professional Associations and section 119 of the Labour Code require the registration of trade unions as a prerequisite for the acquisition of legal personality. The Committee observes that there is a discrepancy between the two abovementioned instruments as to the competent authority and applicable procedure for carrying out the registration of trade unions, in that whereas Chapter V of Act No. 23 of 1998 lays down a registration procedure with the Secretariat of the Peoples’ Conference by filling in a standard form and providing the trade union’s bylaws, sections 120-124 of the Labour Code lay down a registration procedure with the Ministry of Labour and Social Affairs. The Committee requests the Government to provide information in its next report concerning the competent authority and the applicable procedure for the registration of trade unions and to transmit the texts of any regulations issued under Chapter XIX of Act No. 23 of 1998 as well as the standard registration form mentioned therein.

Article 3. Right of workers’ and employers’ organizations to draw
up their constitutions and rules, to elect their representatives in
full freedom and to organize their administration and activities

Right to draw up their constitutions and rules. The Committee notes that according to section 136 of the Labour Code, the constitution of trade union subsidiary offices shall be subject to the approval of the Minister of Labour and Social Affairs. The Committee observes that any legislative provisions concerning the approval of constitutions and rules of occupational organizations which go beyond formal requirements may hinder the establishment and development of organizations and constitute interference contrary to Article 3(2) of the Convention (see General Survey, 1994, paragraph 111). The Committee requests the Government to consider repealing this provision.

Right to elect their representatives. The Committee takes note of section 125(7) of the Labour Code which provides that candidates to trade union office should have engaged in the trade or occupation for at least three years and section 118 which adds that in order to qualify for trade union membership, which is an eligibility requirement for office according to section 125(1), a worker must have not interrupted the exercise of the relevant occupation for more than one year. The Committee considers that provisions which require all candidates for trade union office to belong to the respective occupation and to be actually employed in this occupation during a certain period before their election interfere with the organization’s right to elect representatives in full freedom, for example, by preventing qualified persons such as full-time union officers or pensioners from carrying out union duties or by depriving unions of the benefit of the experience of certain officers when they are unable to provide enough qualified persons from among their own ranks. The Committee also notes that when national legislation imposes conditions of this kind on all trade union leaders, there is a real risk of interference by the employer through the dismissal of trade union officers, which deprives them of their trade union office. The Committee is of the view that in order to bring such legislation into conformity with the Convention, it would be desirable to make it more flexible, either by admitting as candidates persons who have previously been employed in the occupation concerned, or by exempting from the occupational requirement a reasonable proportion of the officers of an organization (see General Survey, 1994, paragraph 117).

Furthermore, the Committee observes that section 125(2) of the Labour Code provides that candidates are eligible only if they are of Libyan nationality. The Committee is of the view that where provisions on nationality are too strict, they could deprive certain categories of workers, like migrant workers in sectors where they account for a significant share of the workforce, from the right to elect their representatives in full freedom. The Committee recalls that foreign workers should be allowed to take up trade union office at least after a reasonable period of residence in the host country (see General Survey, 1994, paragraph 118).

Right to organize their administration and to formulate their programmes. The Committee notes that certain provisions of the Act No. 23 of 1998 on Trade Unions, Federations and Professional Associations tend to overregulate matters that should be left to the trade unions themselves and their bylaws, and therefore entail a risk of interference by the public authorities in trade union activities:

-  Chapter XV of Act No. 23 of 1998 on Trade Unions, Federations and Professional Associations spells out in detail the rules on the basis of which trade union subsidiary offices will be supervised by the trade union secretariat.

-  Chapter XIX(4) of Act No. 23 of 1998 on Trade Unions, Federations and Professional Associations authorizes the public authorities to issue regulations on the rules and conditions governing the establishment of subsidiary offices by trade unions.

-  Chapter XII of Act No. 23 of 1998 on Trade Unions, Federations and Professional Associations authorizes the public authorities to issue regulations on the rules and conditions according to which the trade union conference will examine any violations of the law committed by the trade union secretariat.

The Committee requests the Government to consider repealing both the abovementioned provisions and any regulations which might have been issued under them. The Committee also requests the Government to provide information on any regulations which may have been issued in the meantime under these provisions.

The Committee notes moreover that certain provisions of the Labour Code overregulate matters relative to the exercise of trade union activities and the formulation of their programmes:

-  section 131 of the Labour Code requires trade unions to send notice of their general meetings and their agenda to the General Directorate of Labour at least 15 days in advance of their meeting and to send a copy of the minutes to the General Directorate of Labour within 15 days after the meeting. It also entitles the Director-General of Labour to be represented by an official at the meeting;

-  paragraph 2 of section 131 of the Labour Code provides that any decision taken by a trade union’s general meeting in violation of the provisions of this Code, the regulations thereunder or the rules of the trade union shall be null and void;

-  section 126 of the Labour Code authorizes the public authorities (Director of Labour and labour inspectors) to inspect the trade union’s registers and documents and requires trade union officials to give public officials every facility in this respect;

-  section 126(4) of the Labour Code places a cap on the administrative costs of the trade union which shall not exceed 30 per cent of its annual revenue. 

-  section 127(4) and (5) of the Labour Code prohibits trade unions from accepting donations or legacies and ceding any part of their assets by way of donation or legacy without specific authorization from the Minister of Labour and Social Affairs;

-  section 130 of the Labour Code enables the Director-General of Labour to demand any details from the trade union concerning its financial situation.

The Committee notes furthermore that according to Chapter XIX(5) of Act No. 23 of 1998 on Trade Unions, Federations and Professional Associations, regulations will be issued on the rules and procedures concerning the practice of trade union activity. The Committee requests the Government to transmit in its next report the text of any regulations issued under this provision.

The right to strike. The Committee observes that according to section 150 of the Labour Code the exhaustion of all conciliation and arbitration procedures is a condition for a lawful strike or a lockout and that section 176 imposes a penalty of imprisonment of one month or a fine against any person who contravenes this provision. The Committee notes that the conciliation and arbitration procedures as laid down in sections 138-146, apply to cases of "collective labour disputes" where the dispute involves 40 per cent of workers in the undertaking, establishment, factory or branch of activity. The Committee notes moreover, that these procedures may be launched at the initiative of one of the parties to the dispute and include, after an initial period of mediation, compulsory recourse to arbitration the outcome of which is binding on the parties who, according to section 146, are not entitled to raise the matter again for two years. The Committee observes in addition that section 151 allows a strike or a lockout only if one of the parties fails to give effect to a final settlement reached in accordance with the abovementioned procedures, and that section 177 imposes a fine against any person who goes on strike in violation of this provision.

The Committee considers that provisions under which, at the request of one of the parties or at the discretion of the public authorities, disputes must be referred to a compulsory arbitration procedure leading to a final award which is binding on the parties concerned, result in practice in a prohibition of strikes. The Committee wishes to emphasize that such a system makes it possible to prohibit virtually all strikes or to end them quickly and that such a prohibition seriously limits the means available to trade unions to further and defend the interests of their members, as well as their right to organize their activities and to formulate their programmes, and is not compatible with Article 3 of the Convention (see General Survey, 1994, paragraph 153). The Committee requests the Government to consider amending these provisions in accordance with the abovementioned considerations so as to ensure that strike action remains possible at all times after exhaustion of a reasonable period of consultation and mediation procedures and that arbitration awards should only be binding in cases where both parties agree.

Articles 2 and 3. Dissolution of organizations on grounds which constitute interference with freedom of association principles. The Committee notes that section 134 of the Labour Code provides that the Minister of Labour and Social Affairs may request a court of first instance within whose jurisdiction the trade union headquarters are located to order the winding up of a trade union if, inter alia, it becomes evident that the trade union’s activities do not satisfactorily achieve the purpose for which the trade union was established or that the trade union is incapable of achieving such purposes (subsection 1), or if the trade union refuses inspection (subsection 2). The Committee wishes to underline that issues like the effectiveness of trade union action belong to the discretion of the trade unions themselves. The Committee considers that provisions which give the public authorities the possibility to lodge a court action based on their own evaluation of the impact of trade union action, constitute interference in the internal affairs of trade unions and therefore cannot serve as a legal ground for requesting their dissolution. Moreover, with regard to the possibility of requesting the dissolution of a trade union because of its refusal to accept inspection, the Committee has indicated that it considers the powers granted under section 126 for the inspection of trade union registers and documents as interference in the internal affairs of trade unions in violation of Article 3 of the Convention. Consequently, these provisions cannot serve as a justifiable ground for requesting the dissolution of trade unions. The Committee considers moreover that the possibility of obtaining the dissolution of trade unions on grounds which are contrary to freedom of association principles undermines the fundamental right of workers to establish occupational organizations contrary to the guarantees laid down in Article 2 of the Convention.

The Committee notes that section 135 of the Labour Code provides that in the case of voluntary or judicial winding up of a trade union, its liquid assets shall be deposited in a bank designated by the Ministry of Labour and Social Affairs and forwarded to the trade union that replaces the previous one, or if such a union is not set up within two years, be applied in the interests of the workers in the occupation concerned by order of the Minister of Labour and Social Affairs. The Committee wishes to emphasize that the distribution of trade union assets should be carried out in the first place in accordance with the bylaws of the trade union itself.

Article 5. Right of trade unions to establish federations and confederations. The Committee notes that section 137 of the Labour Code prohibits the establishment of more than one trade union federation in Libya and that Chapter XVII of Act No. 23 of 1998 on Trade Unions, Federations and Professional Associations refers to a single general confederation. The Committee considers that freedom of choice must be possible in all cases, especially when it comes to the establishment of federations and confederations (see General Survey, 1994, paragraph 194). The Committee requests the Government to indicate the measures taken or envisaged to ensure that the establishment of more than one federation and confederation is possible and to repeal any provisions which institutionalize a single organization.

The Committee notes that section 127(2) of the Labour Code prohibits trade unions from having any connection or direct or indirect relationship with any foreign trade union. The Committee further notes that section 137 provides that the single federation shall be entitled to affiliate with workers’ regional or international federations subject to the approval of the Ministry of Labour and Social Affairs. Yet, the Committee also observes that Chapter II of Act No. 23 of 1998 on Trade Unions, Federations and Professional Associations provides that trade unions or professional associations shall have the right to join international, regional and Arab organizations, while Chapter XVII(3) provides that the single federation will coordinate member trade unions with regard to external relations, regional and international conferences. The Committee observes that first level organizations as well as federations and confederations have the right to affiliate with international organizations of workers and employers freely and without interference from the public authorities (see General Survey, 1994, paragraph 196). The Committee requests the Government to specify whether first level trade unions as well as federations and confederations have the right to affiliate with international organizations of employers and workers without prior authorization. The Committee also requests the Government to repeal any provisions which may be interpreted as unduly restrictive of this right.

The Committee requests the Government to indicate in its next report the measures taken or envisaged to bring its legislation into conformity with the Convention on the abovementioned points. The Committee draws the Government’s attention to the availability of the technical assistance of the Office should it so desire.