Definitive Report - REPORT_NO256, June 1988

1. 90. The Gaza Building Workers' and Carpenters' Union and the Gaza Commercial and Public Service Workers' Union presented a complaint of violation of trade union rights in the Gaza Strip, Israeli-occupied territory, in a communication dated 2 June 1987. The complainants supplied further information in a letter of 23 July 1987.
2. 91. The Government submitted its observations in a communication dated 19 April 1988.
3. 92. Israel has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainants' allegations

1. 93. In their communication of 2 June 1987, the Gaza Building Workers' and Carpenters' Union and the Gaza Commercial and Public Service Workers' Union complain that they have been prevented from meeting and electing new executive committees. It is alleged that the executive committee of the Gaza Building Workers' and Carpenters' Union sent a letter to the Officer for Labour Affairs in the Gaza Strip notifying him that the union intended to hold its general assembly on 21 February 1987 and, in accordance with the union's by-laws and the Egyptian Labour Unions Law (No. 331 of 1954, an English language version of which is supplied), still in force in Gaza, to hold elections for new trade union officers. On 18 February the union was notified in a letter from the military authorities that the meeting and new elections were prohibited. The complainants state that elections were held, in accordance with the above-mentioned Act, despite the ban. The Commercial and Public Service Workers' Union likewise informed the military authorities of its intention to hold a general assembly and elect new trade union officers on 4 April 1987, which also met with prohibition by the authorities. On that day the military authorities are alleged by the complainants to have put a curfew on the area around the union building and detained several union officers that morning. Despite these measures aimed at preventing the union members from voting, the elections were held successfully in another place.
2. 94. Following the elections, in accordance with the unions' by-laws, each of the newly elected executive committees of the two unions nominated two board members to represent them in the Federation Council. The complainants add that the Israeli authorities were also notified, in writing, of the names of the new executive committee members and those chosen to represent them in the Federation Council.
3. 95. In a letter dated 17 March 1987, the Israeli military authorities informed the head of the Federation that they refused to accept the representatives chosen by the Building Workers' and Carpenters' Union, Mr. Tawfiq al-Mahbouh and Mr. Ayesh Obeid, stating that they did not agree to the holding of the elections. On 26 May 1987, the authorities reminded the Federation of their refusal and requested it not to make any further amendments to the membership of the Council without prior agreement (a translation of the letter in question is appended to the complaint). Finally, the authorities sent letters on 26 and 27 May 1987 to the eight members of the new executive committees barring them from all union activities; the unionists were warned that the authorities would take legal action against them if they did not cease their union activities.
4. 96. The complainants state that the banning of the unionists from union membership runs counter to Article 2 of Convention No. 87 and that the prohibition of elections and refusal to recognise the new elected officers constitutes government intervention in trade union affairs.
5. 97. As regards the eight trade union leaders who were barred from all union activities by the Israeli authorities, the complainants mention in their allegations that these measures were taken under section 7(2) of Law No. 331 of 1954, which provides that any person who has committed a crime has no right to be a member of a trade union or to hold a leading post on an executive committee or a workers' federation, and that the authorities stated in their communications that these persons had committed a crime. The complainants state further that five of the unionists were notified in the same letter that they were not actively engaged in the occupation represented by their trade union and that they should be barred from trade union activity under section 3 of Law No. 331. (The text of both types of letter is appended to the complaint.) The complainants allege that the authorities' extension of the scope of section 7 to all union activities is arbitrary and illegal, since the prohibition contained in this provision only covers membership on the executive committee of a trade union. The complainants add that none of the eight union leaders banned from trade union activities has been convicted of a crime as defined in section 7 of the above-mentioned law. Two of them, Mr. Ziad Ashour and Mr. Ilias al-Jeldeh, have never been sentenced for any offence, while the other six have only been sentenced for "membership in an illegal organisation" as a result of their alleged support for the Palestinian Liberation Organisation. The position of the complainants is that the unionists have been disqualified because of their political opposition to the Israeli occupation, and not because they pose any risk to the proper exercise of trade union rights.
6. 98. As the complainants denounce the Israeli authorities' interpretation of section 7, they likewise reject their interpretation of section 3 of Law No. 331 as regards the term "worker", which serves as a basis for barring certain unionists from union membership. According to the complainants, section 3 of this Law contains a broad definition of the term "worker" and excludes from its scope persons employed in public services (government, municipal councils or the military) and agents representing employers, denying them the right of association. The complainants, therefore, consider that the authorities' barring of the trade unionists from all union activities runs counter to the law, since only one of the eight persons concerned, Mr. Mustafa Burbar, could be considered not to be a worker under the terms of the Law, although the complainants consider that he is a worker, albeit a self-employed one; the complainants state further that most of the union leaders who held their positions prior to the last elections and were recognised by the authorities were not real workers under the provisions of section 3. (A list is supplied of the trade union posts and occupations of some of the former union leaders.)
7. 99. The complainant organisations state that the law does not provide for any proper appeal against the decisions of the authorities and that the only appeal possible is to the Israeli High Court which is not competent to rule on the substance of the case but only to verify whether the legal procedures have been followed in an action taken by the authorities.
8. 100. In conclusion, the complainants recall that the Gaza unions have been inactive since 1967, as the authorities continually restrict the scope of their activities, and that their attempts to resume their activities have met with severe oppression, which runs counter to basic trade union rights.
9. 101. The complainants' communication of 23 July 1987 lists further interference allegedly perpetuated by the Israeli occupation forces in the affairs of Gaza unions: repeated summoning of unionists for interrogation, detention of union leaders (for example, the Secretary-General of the Commercial and Public Service Workers' Union (CPSWU)), threats and other harassment.
10. 102. The complainants describe in detail the events of 2 June 1987: an officer, known to the CPSWU as "Colonel Rubin", accompanied by a group of officers and soldiers stormed the headquarters of the union ordering unionists inside the building to freeze and to present their identity cards. The names of four workers were written down and one of them was asked but received no written order to appear at the Colonel's office. The Colonel threatened those present to stay away from the union and challenged the union's executive secretary, Mr. Hussein al-Jamal, as to his right to be there since the military had banned him from any trade union activities. On 8 June, CPSWU member Hussein Abu-Nar was summoned to the military government's headquarters in Deir al-Balah where he was forced to wait in the hot sun from early morning to 2 p.m. when he was told by an Israeli officer to return the next day. On 9 June he returned and was detained from 8 a.m. to 4 p.m. when he was brought before the Military Governor who handed him a written order that prevented him from practising any union activities under section 7 of Military Order No. 331.
11. 103. According to the complainants, the following unionists were also detained by the military on 9 June: Ayesh Obeid; Tawfiq al-Mabhouh and Mustafa al-Burbar. They were released - with warnings to give up their union activities - after eight hours' detention. Also on the same day, a group of Israeli soldiers, led by an officer known as "Captain Abu-Salim", arrived at the bookshop where Mustafa al-Burbar, member of the CPSWU works. As he was not there, they went to his home, but he was not there either. Then they went back to the bookshop and conducted a thorough search and threatened to return. The complainants describe the events of 23 June 1987: Ayesh Obeid, Tawfiq al-Mabhouh, Mustafa al-Burbar, along with Suhail Abu-Ala, a member of the Building Workers' and Carpenters' Union, were arrested a second time and detained in the "Ansar 2" detention centre. They were released on 24 June 1987 at 11 p.m.
12. 104. According to the complainants, on 25 June 1987 Hussein al-Jamal was summoned to the police station in Gaza City for interrogation. He went in the morning but was asked to return in the afternoon. When he arrived in the afternoon he was interrogated on the charge that he had violated the order against him by his participation in a meeting in the Union headquarters. Al-Jamal denied that he had done anything illegal, but was charged, then released on bail, and is now awaiting trial. On the same day Hussein Abu-Nar was again summoned, this time to the Gaza police station for interrogation where he was detained without being questioned.
13. 105. Lastly, the complainants state that on 6 July 1987 Tawfiq al-Mabhouh was summoned to the police station in Gaza City; his interrogation was postponed until further notice. On the same day, Hussein Abu-Nar was again summoned to the Gaza police station, he was charged with violating the order against him to cease all trade union activities because he was said to have participated in a meeting in the union headquarters. Abu-Nar denied the charges on the basis that the order was incorrect and had no basis under local or international labour laws or standards. The complainants fear that these practices will continue. They hope that the ILO will support them in confronting the practices of the military authorities, so that they can continue to work and provide their workers with the necessary services.

B. The Government's reply

1. 106. In its communication of 19 April 1988, the Government of Israel states that it recognises the principle of freedom of association, and its obligation to fulfil the term of Conventions Nos. 87 and 98 to which it is a party. These principles are the underlying basis of the legislation and activities of the different branches of the Israeli Government in all that relates to the rights of workers and unions.
2. 107. It states that in its activities in Judea and Samaria, the Government is fully aware of the principles and values which guide democratic governments in the free world in their relations with workers. No prohibitions or restrictions have been imposed on trade unions in Judea and Samaria on account of bona fide activities. According to the Government, whenever any steps have been taken against trade unions or their activities, this has been on account of terrorist acts, subversion, or other illegal activities, which have absolutely no connection with the declared mandate of trade unions.
3. 108. As regards the background to the present case, it explains that the Workers' Association in Gaza, which unites the operations of six trade unions, was established in 1965, during the period of Egyptian rule. They are: the Commercial and Public Service Workers' Union; the Drivers' Union; the Building Workers' and Carpenters' Union; the Sewing Workers' Union; the Union of Agricultural Workers and the Union of Metal Workers. The Association froze its activities between 1967 and 1979, when it started functioning again in accordance with the law. On 25 October 1984 an attempt was made on its leader's life by members of the terrorist "Fatah" organisation, in order to gain control of the Association. After that, the Association became a focus of activity for the various terrorist organisations, and a focus of rivalry amongst them for positions of power in the organisation. In spite of this, the administration did not take advantage of the breaches of the Egyptian Law that regulates the conduct of trade unions in Gaza and made no use of its legal authority to disband either the Workers' Association or unions belonging to it.
4. 109. The Israeli administration in Gaza acts in these matters in accordance with the Trade Unions Law (No. 331) enacted by Egypt on 15 November 1954. Every trade union in the Gaza area is obliged to operate in accordance with this Law, which contains clear provisions regarding the holding and conduct of elections for trade unions so as to ensure that there are no restrictions on the right of democratic election by workers, as provided by Conventions Nos. 87 and 98. According to the Government, the unions that have made the complaint violated the following two sections of the Law: a) section 8(a) which requires that elections should be secret, and conducted on the basis of equality; and b)section 7(2) which prohibits anyone found guilty of a felony from being a member of the executive council of the union.
5. 110. The Government states that the elections for the executives of the two complainant unions were held by using the "Tazkiyeh" unanimous oral election of a list of candidates agreed upon in advance, with only one candidate for each position. It considers that this system is contrary to the concept underlying the method of election described in section 8(a) that the voters should elect candidates by a genuine exercise of their free will, and not simply rubber-stamp a predetermined list of persons for specific tasks. It is also of the opinion that the principle of secrecy was not maintained during the elections carried out by the trade unions. It claims that there were never any real elections at all, but only appointments through an exercise of force majeure. These so-called "elections" were carried out despite the express prohibition of the Administration on the grounds of failure to comply with certain other provisions of the Law, as explained below.
6. 111. According to the Government, at least seven persons who had been found guilty of felonies were elected to the executive council of unions that have filed the complaint. It is obvious that the characterisation of an act as a criminal offence whether of an ordinary or a security nature, cannot be affected by whatever ideological motives might have prompted the accused to commit them. The Government explains that: - Ayesh Obeid was elected to the executive council of the Union of Carpenters and Builders but had been found guilty of membership of a hostile organisation, and of planting explosive devices, and was sentenced to ten years' imprisonment (Military Court Case No. 71/81); - Jamil Ahmed Said Jaras was elected to the council of the Building Workers' and Carpenters' Union, but had been found guilty of an offence against the security of the region, and was sentenced to eight months' imprisonment (Military Court Case No. 1180/82); - Tawfiq al-Mabhouh was elected to the council of the Building Workers' and Carpenters' Union, but had been found guilty of the offence of membership of a hostile organisation, and was sentenced to eight months' imprisonment (Gaza Military Court Case No. 775/73); - Ziad Sabhi Abdallah Ashour was elected to the council of the Building Workers' and Carpenters' Union, but had been found guilty of the offence of incitement (Military Court Case No. 21/86); - Hussein Mahmad al-Jamal was elected to the executive council of the CPSWU, but had been found guilty of the offence of membership of a hostile organisation and was sentenced to five years' imprisonment (Military Court Case No. 678/75); - Yehia Dib Salam Obeid was elected to the council of the CPSWU, but had been found guilty of offences of contact with a hostile organisation and carrying out services for a hostile organisation (Military Court Case No. 446/82); - Hussein Abu-Nar was elected to the council of CPSWU, but had been found guilty of attempted murder and of planting explosive devices, and was sentenced to ten years' imprisonment (Military Court Case No. 395/71).
7. 112. The Government states that a police investigation was opened against three of these seven persons (Tawfik al-Mabhouh, Hussein al-Jamal and Hussein Abu-Nar) on the suspicion that offences had been committed under section 7 of the Egyptian Law (which prohibits anyone found guilty of a criminal offence from being a member of the executive council of a trade union). A complaint on this was lodged with the Gaza police after the three persons had been warned to give up their membership in view of the offences they had committed. According to the Government, when they refused to do so, File No. P.A. 1411/87 was opened against them, which led to the opening of Military Prosecution file No. 1676/87. No charge has yet been issued concerning these three persons.
8. 113. The Government adds that as regards the legality of previously imprisoned persons who continue to serve as members of the executive council of trade unions, their election has two consequences: first, they are committing a criminal offence for which they are liable to punishment (hence the police investigation already opened against the three above-mentioned persons); and secondly, the union itself which elects someone who had in the past been sentenced for a felony violates the provisions of section 7 of the Law and such a violation can (under section 14(c) of the Law) serve as grounds for annulling the union's registration.
9. 114. In addition, the Government claims that these unions systematically violate the provisions of the Trade Unions Law in the following respects.
10. 115. Section 18(d) states that "unions may not engage in political or religious affairs", and this ban on political involvement is connected with the concept expressed in section 5, namely that the aim of establishing trade unions is mutual assistance in furthering the professional interests of members and their material and social condition. Despite this, on 23 July 1986, the Workers' Association (described above) adopted a resolution recognising the PLO as the sole representative of the Palestinian people, and rejecting United Nations Security Council Resolution No. 242.
11. 116. Section 21 requires every union to submit to the Officer for Labour Affairs an annual balance sheet at every financial year, certified by an accountant. With the exception of the Commercial and Public Service Workers' Union, none of the unions prepare or submit such balance sheets. Section 25 obliges every union to notify the Officer for Labour Affairs of every session of the General Assembly and section 21 also requires every union to transmit to the Officer for Labour Affairs each year a copy of the minutes of the General Assembly. Despite this, the unions do not do so.
12. 117. According to section 5 of the Trade Unions Law, the unions can confer membership only on "workers", which term is defined in section 3, where "workers" and "non-workers" are distinguished from each other on the basis of the degree to which they are subject to the supervision of the employer. The CPSWU violated section 5 by conferring membership, and electing to the executive council, two persons who are not "workers", namely Ilias al-Jeldeh a jewel dealer, and Yedia Salem Obeid, who owns a shop for the sale of flour. The Agricultural Workers' Association (which is a member of the Workers' Association) also violated this section by electing Ahmed Atiah as a member of its executive council, notwithstanding the fact that he was not a member of this profession.
13. 118. Lastly, the Government recalls that section 14 of the Law states that a trade union which does not satisfy its requirements can be dissolved; in view of principles contained in Conventions Nos. 87 and 98 the Government has not taken this step but stresses that it has no objection to the trade unions in Gaza holding elections which conform to the requirements of the law, and that it will recognise only the results of such elections as are conducted in accordance with the law.

C. The Committee's conclusions

1. 119. The Committee notes that this case basically involves two distinct sets of allegations; first, non-recognition by the authorities of the new executive committees of the two complainant unions which were elected in February and April 1987 and the consequent ban on their involvement in any union activities; and secondly physical harassment of trade unionists and union leaders culminating in the June 1987 arrests. These various incidents allegedly form part of the oppression of Gaza trade unions which are trying to resume union activities for the benefit of their members after being inactive since 1967.
2. 120. The Government's version of the events differs considerably from that of the complainant unions. First, the Committee notes the Government's claim that not only have the unions involved - and others in Gaza - been in violation of the applicable law as regards their membership and functioning, but also that the particular elections in question were void for failure to comply with the legislative provisions on the subject. Secondly, the Government explains that the police investigations and questioning of three persons (Tawfik al-Mabhouh, Hussein al-Jamal and Hussein Abu-Nar) have been conducted in the context of suspected unlawful activities and led to the opening of a Military Prosecution file, but that no charges have yet been laid.
3. 121. As regards the main legislative provision referred to in this case, the Committee observes that section 7 of the Trade Union Laws (No. 331 of 1954) reads as follows: 7. None of the following is allowed to become a member of the union's executive council: ... (2) Those convicted and sentenced for a felony or a misdemeanor in a crime that involves stealing or hiding stolen goods or fraud or dishonesty or bribery or deceivingly declaring bankruptcy or forgery or using forged documents or giving a false testimony or suborning witnesses or drug-trafficking or drug-possession, or sentenced for moral turpitude or crimes involving corruption of ethics. It thus appears from the English translation of the text available to the Committee that the "crimes" which disqualify a person from union office are related to the appropriateness of allowing guilty persons to hold positions of trust, such as trade union office.
4. 122. The position of the ILO supervisory bodies faced with such legislative restrictions on eligibility for union office has been that conviction on account of offences, the nature of which is not such as to call into question the integrity of the person concerned and is not such as to be prejudicial to the exercise of trade union functions should not constitute grounds for disqualification and that legislation providing for disqualification on the basis of any offence is incompatible with the principles of freedom of association (see General Survey on Freedom of Association and Collective Bargaining, 1983, para. 164).
5. 123. In the present case, the wording of section 7 places acceptable restrictions on criminal record holders, but it appears to the Committee that the military authorities have in fact applied section 7(2) in practice to a much broader range of crimes which, according to the criteria outlined above, have little direct relation to the capacity of a convicted person to fulfil trade union functions to which he or she might be elected. For example, the Committee observes from the detailed list supplied by the Government that four of the seven members of the recently-elected executives had been convicted of belonging to or having contact with a hostile organisation and the remaining three of a security offence, incitement, attempted murder and planting explosives. Moreover the Committee notes that the Military Court judgements cited by the Government date back in some cases to the early 1970s and that, from the information available, it seems that where prison sentences accompanied the convictions, they have been completed. It also notes that the Government gives a lengthy description of the terrorist involvement of organisations in the Workers' Association in Gaza, the federation of unions in the region whose council includes members of the newly elected executives. In view of the facts before it, the Committee would recall the importance of the principle which guarantees the right of workers' organisations to elect their representatives in full freedom. It would point out to the Government that a practice of giving a broad interpretation to trade union election legislation so as to deprive certain persons of the right to hold elected posts solely on the grounds of their political belief or affiliation is not compatible with this right.
6. 124. The Committee notes that suspected fresh violations of section 7(2) are quoted by the Government as the reason for the police investigation of and the opening of a Military Prosecution file against Tawfiq al-Mabhouh (elected to the executive of the Building Workers' and Carpenters' Union), Hussein al-Jamal and Hussein Abu-Nar (elected to the executive of the CPSWU). The Committee accordingly trusts that due consideration will be given by the investigating authorities to the above principles.
7. 125. As regards the second flaw in the election formalities on which the Government bases its non-recognition of the new executives, namely the requirement that voting be secret and democratic, the Committee observes that section 8(a) of the Law reads as follows: 8. a) the trade union's executive council is elected according to the way explained in the union's articles of incorporation, where it should be stated that all members have equal rights and should be given a fair chance to participate in elections, and that the secrecy of elections should be guaranteed by means of a reasonable and practical way.
8. 126. In past cases concerning legislative requirements for secret ballots for trade union elections, the ILO supervisory bodies have been of the view that no violation of the principles of freedom of association is involved where the legislation contains certain rules intended to promote democratic principles within trade union organisations or to ensure that the electoral procedure is conducted in a normal manner and with due respect for the rights of members in order to avoid any dispute as to the election results (see General Survey, para. 169). In the present case, the Committee notes the complainants' assertions that the elections were carried out in accordance with both unions' by-laws, but regrets that it does not have before it more detailed information as to the form of "Tazkiyeh" oral voting. In any event, the Committee observes that the military authorities have not attempted to use this alleged flaw to cancel the two complainant unions' registration - as they are entitled under section 14 of Law No. 331. On the basis of the information submitted the Committee is unable to determine whether the February and April 1987 union elections took place in strict conformity with the relevant legislative provisions.
9. 127. As regards the allegation that the military authorities have misinterpreted section 3 of the Law so as to limit the right to join unions, the Committee observes that this is linked to the Government's general counter claim that the complainant unions violated the membership provisions of Law No. 331. This alleged violation of Article 2 of Convention No. 87 appears, from the facts presented in this case, to affect the status of only three of the newly elected CPSWU executive members: Mr. Mustafa Burbar, Mr. Ilias al-Jeldeh and Mr. Jedia Salem Obeid. The Government claims that these persons are not "workers" and the complainants describe one, Mr. Burbar, as "self-employed". Once again, given that this alleged infringement of the current legislation did not give rise to the prescribed penalty - namely, cancellation of the union's registration - the Committee cannot but decide that there has been no violation of Convention No. 87 as regards this aspect of the case.
10. 128. In view of its examination of Law No. 331 and the facts presented to it in this case, the Committee considers generally that the ban on involvement in any union activities applied to eight recently elected members of trade union executive committees should be reviewed in the light of the principles stated above.
11. 129. The Committee notes with concern the allegations of continued physical harassment and threatening of six unionists, in particular the June 1987: the double interrogation of Hussein al-Jamal and his charging and release on bail; the two arrests followed by eight hours' and then day-long detention of Ayesh Obeid, Tawfiq al-Mabhouh - who was summoned for a third time in July - and Mustafa al-Burbar; the arrest and the day-long detention of Suhail Abu-Ala; the triple summoning and day-long detention and charging of Hussein Abu-Nar. The Committee notes that according to the Government, police investigations have been opened concerning three of these persons (Hussein al-Jamal, Tawfiq al-Mabhouh and Hussein Abu-Nar) but no charges have yet been issued against them. It also notes that the Government describes Mr. Ayesh Obeid's previous criminal record but is silent as to the alleged recent police interrogations of this person and of Suhail Abu-Ala and Mustafa al-Burbar. As in previous cases involving repeated summonsing by the authorities (see, for example, 226th Report, Case No. 1153 (Uruguay), para. 178), the Committee would draw the Government's attention to the principle that the apprehension and systematic or arbitrary interrogation by the police of trade union leaders and unionists involves a danger of abuse and could constitute a serious attack on trade union rights.