Observation (CEACR) - adoptée 2000, publiée 89ème session CIT (2001)

The Committee notes the information supplied by the Government in its report.

Article 1 of the Convention.  Protection against anti-union discrimination.  The Committee has previously commented on the need for specific provisions, accompanied by effective and sufficiently dissuasive sanctions, to guarantee the protection of workers against any act of anti-union discrimination by employers both at the time of taking up employment and in the course of employment. The Government states in its report that the draft Trade Union Act does not include specific provisions accompanied by effective and sufficiently dissuasive sanctions which guarantee the protection of workers against any act of anti-union discrimination by employers and adds that the Committee’s observation will be taken into consideration when amending the draft Trade Union Act. The Committee recalls that the protection afforded to workers and trade union officials against acts of anti-union discrimination constitutes an essential aspect of the Convention and urges the Government to amend the draft Trade Union Act to ensure such protection. The Committee requests that the Government indicate the progress of the draft Act through the legislative process and any amendments made thereto.

Article 2.  Protection of workers’ organizations against acts of interference by employers.  The Committee regrets that the Government does not provide any information on this matter, which has been raised by the Committee since 1985. The Committee recalls that national legislation should make express provision for rapid appeal procedures, coupled with effective and dissuasive sanctions against acts of interference in order to ensure the application of Article 2 of the Convention. Moreover, to ensure that these measures receive the necessary publicity and are effective in practice, the relevant legislation should explicitly lay down these substantive provisions, as well as appeals and sanctions in order to guarantee their application (see General Survey on freedom of association and collective bargaining, 1994, paragraph 232). The Committee urges the Government to make every effort to ensure that the draft Trade Union Act will contain such provisions in the near future.

Article 4.  Voluntary negotiation of collective agreements.  The Committee takes due note of the information provided in the Government’s report to the effect that a few collective bargaining negotiations were held from 1996 to 1999 in view of the Government’s encouragement of collective bargaining and pursuant to the provisions of the Labour Code. According to the Government, these negotiations provided an impetus for a reinforcement of placement and increasing workers’ protection in the various sectors and fields such as oil, fishing, transport, telecommunications, electricity, aviation, health, universities, ship basins, the port of Aden, teaching, red sea mills, the port of Al-Hadida, and the cement industry. During this period, 15 collective agreements were concluded, and the number of workers covered reached 38,000. The Committee asks the Government to further promote collective bargaining and to provide statistics on the number of workers covered by collective agreements in comparison with the total number of workers in the country.

With reference to its previous observation, the Committee notes that section 34(2) of the Labour Code provides for the compulsory revision and registration of collective agreements and section 32(6) stipulates that a collective agreement shall be invalid if any of its terms is "… likely to cause a breach of security or to damage the economic interests of the country …". The Government states that the registration at the Ministry of Labour and Vocational Training is required so as to protect past and subsequent workers or prohibit any violation of the criteria relating to minimum standards laid out in the Labour Code. The Government underscores that the purpose of section 32(6) of the Labour Code does not lie in constraining the freedom of the partners to negotiate collective agreements; rather, it aims to highlight that freedom must be exercised within its scope, the reason being that trade union awareness and collective bargaining are still quite recent and are still in the early phases of development. While noting the Government’s explanation, the Committee points out that the legislation goes beyond ensuring respect of legal minimum standards. In this context, it recalls that legislation that allows the authorities full discretion to deny approval based on criteria such as compatibility with general or economic policy of the Government, in fact makes the entry into force of the collective agreement subject to prior approval, which is a violation of the principle of autonomy of the parties (see General Survey, op. cit., paragraph 251). The Committee requests that the Government amend sections 32(6) and 34(2) so that refusal to register a collective agreement is possible only due to a procedural flaw or because it does not conform to the minimum standards laid down by the labour legislation.