Observation (CEACR) - adoptée 2002, publiée 91ème session CIT (2003)

The Committee notes that no report has been received from the Government. It must therefore repeat its previous observation on the following matters.

  Restrictions on workers’ freedom to leave their employment

In comments made for a number of years under both Conventions Nos. 29 and 105, the Committee has drawn attention to the restrictions imposed on workers throughout the economy to leave their employment by giving notice - restrictions that are enforceable with penal and other sanctions.

In its latest report, the Government states that there are no constraints imposed on the freedom of workers to end their service as provided for in section 36 of the Labour Code (No. 71 of 1987) which concerns the termination of labour contracts. Under section 36, paragraph 3, of the Labour Code, a labour contract of indefinite duration ends when the worker decides to terminate it, provided he or she has given the employer written notice at least 30 days before the date of termination set. The Government adds that military personnel in the armed forces do not come under these provisions.

The Committee has taken due note of these provisions. It must, however, point out once again that, under Revolutionary Command Council Resolution No. 150 of 19 March 1987, the rights and obligations of officials shall also apply to all labourers in state departments and the socialist sector who are thus removed from the scope of the application of section 36, paragraph 3, of the Labour Code and come under the following provisions:

-  under article 35 of the Civil Service Act (No. 24 of 1960), the resignation of an official is not valid unless accepted by a decision of the competent authority;

-  under Revolutionary Command Council Resolution No. 521 of 7 May 1983, resignation of Iraqi officials appointed in the state departments of 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 expenses of studying at all educational stages passed before appointment or during the period of service;

-  under Revolutionary Command Council Resolution No. 700 of 13 May 1980, an official who resigns without the approval of the department shall in addition be deprived 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;

-  resignation restrictions also apply to civil officers and seafarers under section 40 of Law No. 201 of 1975 on the Civil Marine Service, and to various categories of officials under Resolutions Nos. 917 of 1988 and 550 of 1989;

-  finally, under section 364 of the Penal Code of Iraq, 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.

Referring to the comments made for a number of years under both the present Convention and the Abolition of Forced Labour Convention, 1957 (No. 105), the Committee must once again point out that the effect of statutory provisions preventing termination of employment by means of notice of reasonable length is to turn a contractual relationship based on the will of the parties into service by compulsion of law, and is thus incompatible with the Conventions relating to forced labour. This applies to workers throughout the socialist and mixed sectors as well as to public officials and, in time of peace, to career members of the armed forces, all of whom must remain free to terminate their employment by giving notice of reasonable length. The Committee once again expresses the hope that the necessary measures will at last be taken to bring national law into conformity with the Convention in this regard, and that the Government will supply information on the measures taken to this end.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.