Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

The Committee notes the comments made by the International Trade Union Confederation (ITUC) in a communication dated 26 August 2009, which primarily refer to matters previously raised by the Committee.

Violence against trade unionists. Previously the Committee, noting the ITUC’s 2008 comments on the persistence of serious violations of freedom of association, had requested the Government to provide information on the ITUC’s allegations of arrests, detentions and acts of violence committed against trade unionists. The Committee takes note of the Government’s statement that it has never sanctioned or committed arrests and acts of violence against trade unionists, and that it was cooperating with the representatives of trade unions in order to submit detailed information respecting this matter. Further noting that in its most recent comments the ITUC refers to further acts of violence, the Committee once again expresses the hope that it will be possible in the near future for trade union rights and the right to collective bargaining to be exercised normally and in observance of fundamental rights, and in a climate free from violence, duress, fear and any kind of threat. It requests the Government to provide information with respect to the ITUC’s allegations concerning these serious matters.

Articles 1, 3 and 4 of the Convention. The Committee had previously noted that, according to the Government, a draft Labour Code had been referred to the Consultative Council (Majlis Al-Shura) so that Parliament could examine and adopt the said legislation. It further noted that the guarantees laid down in the draft Labour Code for protection against acts of anti-union discrimination applied to trade union founders and chairpersons and to trade union officers but not to trade union members; nor did the draft establish adequate guarantees against discrimination at the time of recruitment. The Committee also noted that, although it covered anti-union dismissals, the draft did not address other adverse measures affecting trade union membership or activities.

The Committee had pointed out that protection against acts of anti-union discrimination must apply to trade union members as well as union officers, and must cover not only dismissal but any other measure amounting to anti-union discrimination (transfer, demotion and other measures that have adverse effects). Furthermore, the protection provided for by the Convention applied upon recruitment, in the course of employment and at the time of separation. The Committee also recalled that general provisions of the law prohibiting acts of anti-union discrimination are not enough if they are not accompanied by effective and rapid procedures to ensure their application in practice; protection against acts of anti-union discrimination should therefore be ensured by various means adapted to national law and practice that prevent or effectively redress such acts, in particular through sufficiently dissuasive sanctions. The Committee had accordingly requested the Government to take the necessary steps to amend the draft Labour Code so as to ensure adequate protection for members of trade unions and trade union officers against acts of anti-union discrimination, in accordance with the principles noted above.

Previously the Committee had noted that section 142 of the draft Labour Code establishes a duty to bargain in good faith when a request to open collective negotiations has been submitted by a registered union representing no less than 50 per cent of the workers employed at the establishment or enterprise, or where such a request has been submitted jointly by several registered unions representing no less than 50 per cent of the workers to whom the collective agreement is to apply. The Committee pointed out that problems may arise where it is established by law that a trade union must receive the support of 50 per cent of the members of a bargaining unit to be recognized as a bargaining agent: a union that fails to secure this absolute majority is thus denied the possibility of bargaining. It noted that if no union – or group of unions, as provided for in section 142 – covers more than 50 per cent of the workers, collective bargaining rights should not be denied to the unions in the unit concerned, at least on behalf of their own members, and had requested the Government to take the necessary steps to amend section 142 of the draft Labour Code accordingly.

In respect of the matters noted above, the Committee notes with interest the Government’s statement that its comments concerning adequate protection against acts of anti-union discrimination are addressed in the draft Labour Code’s chapter concerning trade union organizations, that section 142 of the draft Code has been amended to bring it into conformity with the Convention, and that a new section 143 has been included to address the Committee’s comments on minimum membership requirements for the acquisition of bargaining agent status.

Article 4. Promotion of collective bargaining. The Committee had previously referred to the absence, in Act No. 52 of 1987 on trade union organizations, of any provisions to promote collective bargaining and thus give effect to Article 4 of the Convention. The Government indicates in this regard that the draft Labour Code repeals Act No. 52 of 1987 on trade union organizations. The Government further states that section 147 of the draft Labour Code defines a collective labour contract as an agreement between the trade union, on behalf of the workers of the occupations and industries it represents, and the employers concerned. Additionally, such a contract has to be established within one occupation, one industry or one project or for similar, interlinked or common projects in order to regulate reciprocal legal and contractual obligations between the parties concerned. Noting this information, the Committee requests the Government to confirm whether, under the draft Labour Code, collective bargaining at the enterprise level is also recognized. The Committee further invites the Government to take appropriate measures to promote collective bargaining, through publications, seminars and other activities designed to increase awareness of its utility.

Articles 1, 4 and 6. The Committee had been noting for many years that Act No. 150 of 1987 on public servants, which the Government was planning to repeal, contains no provisions affording the guarantees established in the Convention to public servants and public sector employees engaged in the administration of the State, and had further observed that the draft Labour Code excludes employees of the public service from its scope. The Committee had previously noted that the Government, in consultation with the social partners and experts from the Office, was drafting a recommendation with a view to including in the new Labour Code provisions on the trade union rights of public sector workers, which would give them the rights provided for in Articles 1, 3 and 6 of the Convention. In this regard, the Committee notes with interest the Government’s indication that the draft Labour Code repeals Act No. 150 of 1987 on public servants, so that public servants will be covered by its provisions. The Committee expresses the hope that public servants will enjoy all the rights and guarantees enshrined in the Convention and requests the Government to indicate in its next report the progress made with respect to the draft Labour Code’s adoption.

Trade union monopoly and interference in trade union activities. The Committee had noted that, according to a statement made by the Government representative to the 2008 Conference Committee on the Application of Standards, Act No. 52 of 1987 established a de facto monopoly of the Confederation of Iraqi Workers’ Unions by forbidding the establishment of other unions or federations. The Government representative also indicated that the Act was in force only on paper, in that since April 2003 other unions have been set up in several sectors notwithstanding the lack of a proper legal framework. The Committee noted that the Conference Committee’s discussions also addressed the need to repeal Decision No. 8750 of 8 August 2005, the provisions of which had been used by the Government to freeze the trade union’s bank assets. It considered that texts which have not yet been formally repealed, such as Decision No. 8750, can generate uncertainty in law and hinder the development of collective bargaining within the meaning of the Convention and of other trade union activities. The Committee trusted that the Government would shortly indicate that Act No. 52 of 1987 and Decision No. 8750 of 2005 had been formally repealed. In this regard, the Committee notes the Government’s indication that the draft Labour Code repeals Act No. 52 of 1987, and that the repeal of Decision No. 8750 will be considered once workers’ elections have been held and the financial liability for keeping the assets of the Confederation defined. In these circumstances, the Committee expresses the hope that the Government will shortly indicate the repeal of Decision No. 8750 of 2005, so as to ensure trade union multiplicity, and requests the Government to indicate in its next report any developments in this regard.