REPRESENTATION (article 24) - IRAQ - C095, C105, C111, C118 - 1991

Report of the Committee set up to consider the representation made by the Federation of Egyptian Trade Unions under article 24 of the ILO Constitution alleging non-observance by Iraq of the Protection of Wages Convention, 1949 (No. 95), the Abolition of Forced Labour Convention, 1957 (No. 105), the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), and the Equality of Treatment (Social Security) Convention, 1962 (No. 118)

Decision

1. The Governing Body adopted the report of the tripartite committee. Procedure closed.

Complaint Procedure

1. I. Introduction
2. 1. By a letter transmitted to the Director-General of the International Labour Office on 8 November 1990, the Federation of Egyptian Trade Unions made a representation under article 24 of the ILO Constitution alleging the non-observance by Iraq, in both Iraq and in Kuwait, of the Protection of Wages Convention, 1949 (No. 95), the Abolition of Forced Labour Convention, 1957 (No. 105), the Discrimination (Employment and Occupation) Convention, 1958 (No. Ill) and the Equality of Treatment (Social Security) Convention, 1962 (No. 118).
3. 2. All four Conventions have been ratified by Iraq and are in force for the country. (Endnote_1)
4. 3. The relevant provisions of the ILO Constitution as regards representations are as follows:
5. Article 24
6. In the event of any representation being made to the International Labour Office by an industrial association of employers or of workers that any of the Members has failed to secure in any respect the effective observance within its jurisdiction of any Convention to which it is a party, the Governing Body may communicate this representation to the government against which it is made, and may invite that government to make such statement on the subject as it may think fit.
7. Article 25
8. If no statement is received within a reasonable time from the government in question, or if the statement when received is not deemed to be satisfactory by the Governing Body, the latter shall have the right to publish the representation and the statement, if any, made in reply to it.
9. 4. The procedure for the examination of representations is laid down by the revised Standing Orders adopted by the Governing Body at its 212th Session (March 1980).
10. 5. In conformity with article 1 and article 2, paragraph 1, of the Standing Orders, the Director-General acknowledged receipt of the representation, informed the Government of Iraq and brought the representation before the Officers of the Governing Body.
11. 6. At its 248th Session (November 1990) (Endnote_2), the Governing Body decided, on the recommendation of its Officers, that the representation was receivable for Iraq, though not for Kuwait, and appointed a committee to examine it composed of Mr. J. Rhenan Segura (Government member, Costa Rica, Chairman), Mr. J.-J. Oechslin (Employer member, France) and Mr. J. Morton (Worker member, United Kingdom).
12. 7. In application of article 4, paragraph l(a) and (c) of the Standing Orders, the Committee decided: first, to invite the complainant organisation to furnish any further information it wished to bring to the attention of the Committee by 22 February 1991; and, second, to invite the Government to make its observations as to the representation by 22 February 1991, it being understood that any supplementary information supplied by the Federation would also be communicated to the Government.
13. 8. The complainant organisation sent additional information by letters of 13 February and 7 March 1991, and in February 1991 handed over a certain number of documents directly to the Office. Copies of this information were sent to the Government.
14. 9. The Government made its observations on the representation in a letter dated 3 January 1991.
15. 10. The Committee met in November 1990 and in February 1991, and finally, for the adoption of its report, in June 1991.
16. II. Examination of the representation
17. A. Questions concerning the Protection of Wages Convention, 1949 (No. 95)
18. Allegations made by the complainant organisation
19. 11. According to the Federation of Egyptian Trade Unions, Egyptian workers who returned to their country prior to the invasion of Kuwait have not received the wages owed to them because the Government had stopped making deposits into the bank accounts used for paying wages. As a result, the banks have refused to honour the cheques delivered to the workers. The complainant organisation considers this to be in violation of Article 12 of the Protection of Wages Convention, 1949 (No. 95).
20. 12. According to the complainant organisation, Egyptian workers returning from Iraq after the invasion of Kuwait did not receive the wages owed to them, contrary to Article 12 of the Convention.
21. 13. Furthermore, the Iraqi authorities are said to have delivered cheques, drawn on a bank in Jordan, to some workers representing a portion of the amount due which, according to the Federation of Egyptian Trade Unions "is a way of making payment to these workers of the amounts owed to them difficult and thus constitutes a violation of Article 5 of the Convention".
22. 14. Referring to a statement made by a responsible authority in the Iraqi Ministry of Finance according to which the amounts owed to Egyptian workers could be paid back in the form of oil or any other goods requested by the Egyptian Government, the Federation of Egyptian Trade Unions considers that this proposal is not in conformity with Article 3, paragraph 1, of the Convention and, if this proposal were to be implemented, it would not be in conformity with Article 5 (direct payment to the worker concerned).
23. Observations made by the Government
24. 15. The Government has indicated that the amounts owed to Egyptian workers who have left Iraq, including "the rights, compensation, termination of employment allowances and any other amount due to them", have been paid to them in accordance with the law, with the exception of the percentage which must be transferred in foreign currency. The payment of this percentage is linked to the economic conditions in Iraq, according to the Government, since the economic embargo was imposed on them and provoked the freeze of its assets in foreign banks.
25. 16. In addition, the Committee notes that in a communication dated 8 November 1990, the Director-General of the Arab Labour Organisation indicated, in the light of the correspondence exchanged and the direct contacts made with the interested parties in Iraq, that Iraq was prepared to pay the entire amount due "out of respect for its financial commitments and to ensure protection of the Egyptian brothers' interests". This reimbursement might take the form of barter, as mentioned in paragraph 14 above. The amount due might also be considered as a debt which Iraq would pay back as soon as the obstacles, which until now have prevented it from doing so, have disappeared.
26. The Committee's conclusions
27. 17. The Committee notes that the representation concerns the non-payment of all or part of the wages owed to Egyptian workers employed in Iraq, who left the country both before and after the invasion of Kuwait. The Federation of Egyptian Trade Unions has also expressed its opinion on the compatibility with Articles 3 and 5 of the Convention, of some proposals made by the Iraqi Government for paying the amounts owed to these workers.
28. 18. The Committee notes that the Government does not contest that the amount owed to the workers has not been paid to Egyptian employees in Iraq who left the country, whether before or after the invasion of Kuwait. The Government specifies that these amounts represent the part of the wages which must be transferred in foreign currency. It states that the embargo which was imposed on Iraq is the reason for non-payment of the wages and that, as soon as the embargo is lifted, it will meet its obligations.
29. 19. According to Article 1 of the Protection of Wages Convention, 1949 (No. 95), "the term 'wages' means remuneration or earnings ... capable of being expressed in terms of money ... which are payable in virtue of a ... contract of employment by an employer to an employed person for work done or to be done or for services rendered or to be rendered". The amount to which the complainant organisation and the Government refer (the part of the wages transferable in convertible currency) constitutes a part of wages as defined in the Convention.
30. 20. The Committee notes that the allegations of the complainant organisation partially concern the non-payment of the amounts to be paid in foreign currency before the adoption of the United Nations Security Council resolution imposing an embargo on Iraq. The Committee concludes that the non-payment to workers who left Iraq before the invasion of Kuwait, of that part of wages normally convertible into foreign currency, was not provoked by the sanctions imposed on Iraq for the invasion of Kuwait, but that it preceded the decision to impose an embargo.
31. 21. The Committee notes that the failure to make deposits into bank accounts on which cheques have been drawn constitutes an obstacle to the payment of wages. This failure to make payments, which in practice translates into non-payment of all or part of wages at regular intervals, is not in conformity with Article 12 of the Convention. It notes at the same time, the Government's statement in its communication of 3 January 1991 that its assets in foreign banks were frozen as a result of the economic measures decided upon by the United Nations Security Council.
32. 22. As concerns the cheques given to some workers, negotiable at banks in Jordan, after the decision to impose an embargo on Iraq was adopted, the payment of wages by negotiable cheques at establishments headquartered in Jordan cannot be considered an effective means of payment. While these may have been little alternative at the time, the two Governments concerned should find a means of ensuring that the workers receive the payments due to them.
33. 23. According to Article 12,paragraph 2,_of_the Convention, "upon the termination of a contract of employment, a final settlement of all wages due shall be effected in accordance with national laws or regulations, collective agreement or arbitration award or, in the absence of ... within a reasonable period of time having regard to the terms of the contract". By virtue of section 48 of the Labour Code of the Republic of Iraq "in the case of termination of a worker's services, the employer shall pay his or her wages in the seven days following the date of termination".
34. 24. Recalling the Government's statement according to which the part of the wages which must be transferred in foreign currency was not paid to Egyptian workers who left Iraq, the Committee notes that the provisions of national legislation concerning final payment of the total wages which gives effect to Article 12, paragraph 2, of the Convention have not been respected. It refers in this respect to paragraph 21 above.
35. 25. It appears from the information made available to the Committee that no measures have been taken to implement the different proposals transmitted by the Director-General of the Arab Labour Organisation. According to that information, however, the amount owed for the payment of wages is a debt which the Government has committed itself to honour. The Committee notes the will expressed by the Iraqi Government to pay the part of the wages owed to the Egyptian workers who left Iraq both before and after the invasion of Kuwait.
36. 26. The Committee notes the paucity of numerical estimates of the number of workers to whom wages are owed, and a fortiori of the amount of the unpaid wages. It recognises that implementation of measures aimed at paying the wages due may require such an evaluation, established on an objective basis acceptable to the parties concerned.
37. B. Questions concerning the Abolition of Forced Labour Convention, 1957 (No. 105)
38. Allegations made by the complainant organisation
39. 27. In its letter of 8 November 1990, the Federation of Egyptian Trade Unions alleged that the Iraqi Government had forced workers who wished to return home to Egypt to stay in Iraq and had obliged them to continue working in factories and strategic installations, thus serving as human shields. As indicated above, it also alleged that those Egyptian workers who had returned from Iraq had lost the benefit of sums owed to them from wage arrears, termination of employment allowances and social security contributions. Furthermore, according to the complainant organisation, the Confederation of Iraqi Trade Unions had transformed its social welfare offices for Egyptian workers into centres for the recruitment of volunteers for the People's Defence Army on the orders of the Iraqi Government, thus exercising pressure on Egyptian workers to be mobilised in that army.
40. 28. In its further communication of 13 February 1991, the Federation added that the Government of Iraq had forced Egyptian workers to join the Iraqi People's Defence Army, and that it had obliged Egyptian workers to dig trenches.
41. 29. Further, on 7 March 1991, the complainant organisation transmitted a detailed report on the situation and number of Egyptian workers in Iraq and Kuwait. That report indicates that the private sector accounts for 10 per cent of all Egyptian workers, most of them being in crafts and trade and thus not encountering difficulties. In the socialist sector, especially in state services such as arms factories, production and public service undertakings, Egyptians account for 60 percent of workers; They may leave the country only after their contract period has expired or if their services are terminated, which depends on the units employing them. After the Iraqi invasion of Kuwait, in the town of Mahmoudiye and the Hattine undertaking in the town of Alexandria, Egyptian workers in the arms production sector were not authorised to leave and their passports were withdrawn for fear of their mass departure. Only those whose contracts had expired and those employed in factories which closed for lack of raw materials were authorised to leave.
42. The Government's observations
43. 30. In its comments, the Government stated that in conformity with the principle of free movement of Arab labour, Egyptian workers enjoyed total freedom to enter or leave Iraq. The principal reason for the departure of a great number of Egyptian workers had been to flee from the risk of war.
44. 31. The Government considers that the allegation of the complainant organisation that Egyptian workers employed in Iraq and wishing to return to Egypt were obliged to stay in Iraq and continue working in factories and strategic installations to serve as human shields was in contradiction with the complainant organisation's own indication that thousands of Egyptian workers' had left Iraq. The Government stated that Egyptian workers in Iraq were free to choose their work and to stay in Iraq or leave.
45. 32. Concerning the allegations of the complainant organisation that the social welfare offices for Egyptian workers in Iraq had become recruitment centres for the People's Defence Army, the Government stated that no Iraqi institution had ever forced any Egyptian worker to join the People's Defence Army, and that those who joined the army had done so through a nationalist sentiment to defend Iraq and the Arab nation.
46. The Committee's conclusions
47. 33. Article 1 of Convention No. 105 provides:
48. Each Member of the International Labour Organisation which ratifies this Convention undertakes to suppress and not to make use of any form of forced or compulsory labour:
49. (a) as a means of political coercion or education or as a punishment for holding or expressing political views or views ideologically opposed to the established political, social or economic system;
50. (b) as a method of mobilising and using labour for purposes of economic development;
51. (c) as a means of labour discipline;
52. (d) as a punishment for having participated in strikes;
53. (e) as a means of racial, social, national or religious discrimination.
54. 34. The Committee notes that the complainant organisation and the Government have presented contradictory versions of the facts which may have a bearing on the Convention. According to the Federation of Egyptian Trade Unions, certain workers who wished to return to Egypt were forced by the Government of Iraq to continue working in factories and strategic installations. According to the Government, this was not so; under the principle of free movement of Arab labour, Egyptian workers were entirely free to enter or leave Iraq; in support of its version of the facts, the Government cited the indication by the complainant organisation that thousands of Egyptian workers had left Iraq.
55. 35. The Committee observes that, without further elements of information, the mere factual allegations presented by the two parties would not yield a clear view of whether or not the Government was in compliance with the Convention. However, the Committee notes that in comments made for some years under Convention No. 105, the Committee of Experts on the Application of Conventions and Recommendations has pointed out that under section 364 of the Penal Code of Iraq (as well as under section 241 of the draft-new Penal Code)s any official and any person in charge of a public service may be punished with imprisonment, inter alia, if they leave their work, even after having resigned, if this might paralyse a public service. The Committee of Experts has drawn attention to the need to amend this provision to ensure observance of both Convention No. 105, Article l(c) of which prohibits the use of forced labour as a means of labour discipline, and the Forced Labour Convention, 1930 (No. 29), under which workers must remain free to terminate their employment by giving notice of reasonable length. In the observation it has made this year on this issue, the Committee of Experts has noted that, in spite of the indications given by the Government to the International Labour Conference in 1989, according to which the possibility of making the necessary amendments was under consideration, up to September 1990 there had been no change on this point.
56. 36. The Committee notes further that under Revolutionary Command Council Resolution No. 150 of 19 March 1987, the rights and obligations of officials shall also apply to all the labourers in state departments and the socialist sector; these are thus removed from the scope of application of the Labour Code, and come under the following resolutions. Under Revolutionary Command Council Resolution No. 521 of 7 May 1983, resignation of Iraqi officials appointed in the state departments or socialist or mixed sectors shall not be accepted before ten years of actual service in such departments, and moreover the resigning official shall bear the studying expenses of all educational stages passed before appointment or during the period of service; an official who resigns without the approval of the department shall in addition be deprived of the rights stipulated in Resolution No. 700 of 13 May 1980, which provides, inter alia, for the deprivation of the rights arising from previous service. Only women may have their resignation accepted without any conditions, by virtue of resolution No. 703 of 5 September 1987. Finally, under Resolution No. 200 of 12 February 1984, every official or worker in state departments and the socialist sector who, despite a written warrant, does not report to work or exceeds the period of his leave without a legitimate excuse for more than three days, shall be punished by confinement or imprisonment for a period of between six months and ten years; by virtue of Resolution No. 552 of 28 June 1986, the same provisions shall be applied to any civil servants ordered to be appointed or graduates centrally distributed who do not take up the jobs to which they were assigned. By virtue of Resolution No. 286 of 6 April 1986, all officials or workers in the departments of the State, socialist or mixed sectors who without a legitimate excuse disobey the legal orders of their chiefs or refuse to perform the tasks entrusted to them according to law shall be imprisoned for a period not to be less than six months.
57. 37. The existence of such legal restrictions and penal provisions makes plausible the allegations according to which certain workers were prevented from leaving their job. These provisions are contrary to Article l(c) of Convention No. 105, and, in so far as they are still in force, the Government should repeal them to ensure the observance of the Convention.
58. C. Questions concerning the Discrimination (Employment and Occupation) Convention, 1958 (No. 111)
59. Allegations made by the complainant organisation
60. 38. The Federation alleges that, after the invasion of Kuwait on 2 August 1990s the Government of Iraq committed acts of aggression, sometimes resulting in serious injury or death, against Egyptian nationals working in Iraq, and expelled Egyptian nationals and their families from Iraq. It is also alleged that the Government restricted Egyptian nationals from either continuing their work or from leaving Iraq, by removing all personal papers including passports, and conscripted them into the Iraqi armed forces or forced them to work in factories or strategic installations and to serve as human shields. Reference is also made to the allegations made under Convention No. 95.
61. Observations made by the Government
62. 39. The Government of Iraq, in its reply dated 3 January 1991, denies these allegations, and particularly any allegation of discrimination. It states that the reason that many Arab workers, including Egyptian workers, left the country was the armed conflict against Iraq. As concerns the treatment of Egyptian nationals who remained in the country, the Government points to a speech by President Saddam Hussein calling upon all Iraqis to treat all Arab workers decently regardless of the position of their governments.
63. The Committee's conclusions
64. 40. Article l (a) of Convention No. 111 provides:
65. For the purpose of this Convention the term "discrimination" includes:
66. (a) any distinction, exclusion or preference made on the basis of races colour, sex, religion, political opinion, national extraction or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation.
67. 41. The Committee notes that it has received no detailed information on the reasons for which Egyptian workers left the country, or the extent to which they were expelled. There is an allegation that Egyptian workers were treated more harshly than other foreign workers who remained in the country, as the complainant organisation states in its letter of 7 March 1991 that aggressions were carried out only against Egyptian workers and not against Vietnamese, Indian and other Asian workers.
68. 42. The Committee also notes that there is no allegation that discrimination was carried out against Egyptian workers on any ground other than their nationality. Convention No. 111 does not, however, include nationality as one of the grounds on which discrimination is prohibited, as pointed out, inter alia, in the 1988 General Survey on Equality in Employment and Occupation (Report III (Part 4B), International Labour Conference, 75th Session, 1988, para. 36).
69. 43. On the basis of the information available, the Committee considers that it is unable to conclude that the present Convention has not been respected. In the first place, the extent and motivation of the actions alleged to have occurred are not clear from the information at the Committee's disposal. In addition, it does not appear that the actions complained of, assuming the accuracy of the allegations, were carried out on any of the grounds foreseen by Convention No. 111.
70. D. Questions concerning the Equality of Treatment (Social Security) Convention, 1962 (No.118)
71. Allegations made by the complainant organisation
72. 44. The complainant organisation alleges that Egyptian workers who returned to Egypt lost the social security contributions they had made while employed in Iraq. It indicates in the additional information submitted on 13 February 1991 that the Iraqi Government, in violation of Convention No. 118, had not paid termination of employment allowances to the Egyptian nationals who worked in Iraq, whose employment had come to an end and who had left Iraq, although their employers had withheld amounts from their wages for social security.
73. Observations of the Government
74. 45. The Government made no direct observations on the points raised under this Convention; its observations concerning Convention No. 95 would appear to be relevant.
75. The Committee's conclusions
76. 46. Iraq has accepted the obligations of the Convention for the following branches: (a) medical care; (b) sickness benefit; (c) maternity benefit; (d) invalidity benefit; (e) old-age benefit; (f) survivors' benefit; and (g) employment injury benefit.
77. 47. This Convention is based on the principle of reciprocity, and the benefits accorded under it are thus limited to nationals of States which have ratified the Convention. Article 3, paragraph 1, reads as follows:
78. Each Member for which this Convention is in force shall grant within its territory to the nationals of any other Member for which the Convention is in force equality of treatment under its legislation with its own nationals ... in respect of every branch of social security for which it has accepted the obligations of the Convention.
79. 48. Egypt has not ratified Convention No. 118, and the Committee might therefore note that no obligation under it rests on the Iraqi Government as concerns Egyptian nationals.
80. 49. The Committee notes none the less that, in a report sent by the President of the Bureau of Egyptian Workers in Iraq to the President of the Federation of Egyptian Trade Unions, and communicated to the ILO on 7 March 1991, it is stated that the contracts of engagement of workers in arms factories provide no rights for these workers, and that problems can arise for them in case of accidents. As an example, the report cites the case of one employee of an armaments factory who fell from the building on which he was working and was partially paralysed and who had no rights under his contract of employment. The Committee notes in this connection that both Egypt and Iraq are bound by the Equality of Treatment (Accident Compensation) Convention, 1925 (No. 19), Article 1, paragraph 1, of which provides:
81. Each Member ... which ratifies this Convention undertakes to grant to the nationals of any other Member which shall have ratified the Convention, who suffer personal injury due to industrial accidents happening in its territory, or to their dependents, the same treatment in respect of workmen's compensation as it grants to its own nationals.
82. 50. Under paragraph 2 of Article 1 of Convention No. 19, "(t)his equality of treatment shall be guaranteed to foreign workers and their dependents without any condition as to residence".
83. 51. The Committee notes that the implementation of Convention No. 19 is not directly at issue in this representation. It hopes, however, that the Government will include information on this point in its next report under article 22 of the Constitution on the application of this Convention, so as to enable the Committee of Experts to examine the question.
84. III. The Committee's recommendations
85. 52. Referring to the conclusions at which it has arrived on the questions concerning the Conventions the application of which has been called into question, the Committee recommends that the Governing Body:
86. (1) approve its final report and in particular the conclusions and recommendations made in it;
87. (2) invite the Government of Iraq to take the measures indicated in the Committee's conclusions on the questions it has examined, in particular:
88. (a) questions concerning Convention No. 95:
89. (i) the Government should take all appropriate measures so that, taking into account the circumstances in which the workers concerned left Iraq and the consequent difficulties in establishing the proof of the debt owed on the wages, the parties may, with the help of the International Labour Office and of the organisations which have assisted the workers concerned, determine the number of workers involved and the amounts owed to them;
90. (ii) the Government should take the measures necessary for the effective payment of the amounts owed to the Egyptian workers, as determined according to the above recommendation, within the shortest possible period;
91. (iii) the Government should communicate, in its reports to be transmitted under article 22 of the Constitution on the application of the Protection of Wages Convention, 1949 (No. 95), information on the measures taken or envisaged to give effect to these recommendations in order to enable the supervisory bodies of the ILO to continue the examination of the questions dealt with in this report;
92. (b) questions concerning Convention No. 105:
93. (i) the Government should take the necessary measures to repeal, in so far as they are still in force, the provisions of the Penal Code and the Revolutionary Command Council Resolutions which prevent workers from terminating their employment by giving notice of reasonable length and which provide for penalties involving compulsory labour as a means of labour discipline;
94. (ii) pending the repeal of these provisions, the Government should take the necessary measures to enable all workers wishing to terminate their employment relationship, in particular the Egyptian workers wishing to return to their country, to leave their jobs by giving notice of reasonable length and without being liable to sanctions or deprivation of rights accrued from previous service;
95. (iii) the Government should communicate, in its reports to be transmitted under article 22 of the Constitution on the application of the Abolition of Forced Labour Convention, 1957 (No. 105), information on the measures taken or envisaged to give effect to these recommendations in order to enable the supervisory bodies of the ILO to continue the examination of the questions dealt with in this report;
96. (c) questions concerning Convention No. 118:
97. - the Government of Iraq should furnish, in its next report on the application of the Equality of Treatment (Accident Compensation) Convention, 1925 (No. 19), information on equality of treatment of foreign workers under that Convention;
98. (3) request the Director-General to bring to the attention of the Governing Body, at an appropriate time, the results of the examination of the situation by the standing supervisory bodies;
99. (4) declare closed the procedure initiated under this representation.
100. Geneva, 14 June 1991.
101. (Signed) J. Rhenan Segura, Chairman.
102. J.-J. Oechslin.
103. J. Morton.
104. Endnote 1
105. Convention No. 95: ratification registered 12 May 1960; Convention No. 105: ratification registered 15 June 1959; Convention No. Ill: ratification registered 15 June 1959; Convention No. 118: ratification registered 28 April 1978.
106. Endnote 2
107. GB.248/20/21.