Direct Request (CEACR) - adopted 2005, published 95th ILC session (2006)

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.