Direct Request (CEACR) - adopted 2004, published 93rd ILC session (2005)

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.