Demande directe (CEACR) - adoptée 2008, publiée 98ème session CIT (2009)

The Committee notes the comments submitted by the International Trade Union Confederation (ITUC) on 29 August 2008 reiterating its comments on issues under examination by the Committee, in particular relating to the absence of independent trade unions. The Committee also notes the comments from the General Union of Producers dated 30 November 2006 which addressed previous comments from the International Confederation of Trade Unions (ICFTU – now the ITUC). The Government is requested to provide its observations in reply to the ITUC’s latest comments.

Article 2 of the Convention. Right of workers and employers without distinction whatsoever to establish and join organizations of their own choosing. Foreign workers. Previously the Committee had referred to section 118(1) of the Labour Code and section 9 of Act No. 20 of 1991 on the promotion of liberty, which reserve the right to establish and join trade unions for Libyan citizens or nationals. The Committee had noted the Government’s indication that section 2 of Act No. 23 of 1998 concerning the right of affiliation does not make any distinction between nationals and foreigners, that section 118 has been annulled by section 38 of Act No. 107, and that section 9 of Act No. 20 of 1991 does not prohibit foreigners from joining trade unions even if its text mentions citizens. In its report of 2008, the Government reiterates that foreign workers who are legal residents are guaranteed the right to join trade unions in accordance with Act No. 23. Consequently, in practice a large number of foreign workers have joined trade unions (available data for 2007 showed that 290 foreign workers joined trade unions). The Government adds that section 5 of Act No. 23 specifies that a condition for the selection of the members of the executive boards of trade unions and occupational associations is that the applicant should be a citizen of the Libyan Arab Jamahiriya, which shows that foreign workers are entitled to join these trade unions and occupational associations. The Government however indicates that section 5 is currently being revised so as to confer the right to foreign workers to stand for membership on the executive boards. The Committee takes due note of these indications and requests the Government to provide information on the amendment of Act No. 23 with regard to foreign workers’ access to executive boards of trade unions. Furthermore, while noting all the explanations given by the Government and in order to ensure that all relevant laws are consistent, the Committee requests the Government to take the necessary measures to amend section 9 of Act No. 20 of 1991 so as to expressly provide for the right of foreign nationals to establish or join trade unions or delete the specific reference to Libyan citizens or nationals with regard to the right to establish and join trade unions.

Minimum age for admission to trade union membership. The Committee had previously noted that the minimum age of 18 years for admission to trade union membership set out in section 118(2) of the Labour Code does not correspond to the minimum age for admission to employment and had requested the Government to modify the legislation so as to bring the age limit for trade union membership into line with the minimum age required for admission to employment. The Committee notes from the Government’s report that section 118 of the Labour Code was repealed and that Act No. 23 of 1998 on trade unions, federations and professional associations – promulgated after Act No. 107 of
1975 – does not specify any age condition in establishing trade unions and professional associations, the reason being that, by virtue of section 92 of the Labour Code, the Minister may issue an order determining the employment of persons under the age of 18 years in some industries and tasks, and these workers should fully enjoy their trade union rights as long as they are employed. The Committee notes this information.

Trade union monopoly. The Committee had previously noted that section 2 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. It had requested the Government to explicitly repeal sections 115–137 of the Labour Code in order to avoid any ambiguity as to the status of those provisions of law. It had also noted that section 2 of Act No. 23 of 1975 specified that “the establishment of more than one trade union or association in the same occupation shall not be authorized”. The Committee notes from the Government’s report that sections 115–137 of the Labour Code have been annulled by virtue of section 38 of Act No. 107 of 1975. The Government also provided details on the hierarchical structure of trade unions in the framework of Act No. 23 of 1998 but does not specify if section 2 of Act No. 23 of 1998 has been amended as requested previously. The Committee, while noting this information, recalls once again 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 down in the Convention, which require trade union diversity to remain possible in all cases. The Committee once again requests the Government to amend section 2 of Act No. 23 of 1998 by explicitly removing the prohibition of the establishment of more than one trade union or association in the same occupation, so as to give full effect to the right of workers to establish and join organizations of their own choosing, including more than one union in a given occupation.

Minimum membership required to register a trade union. The Committee had previously referred to the minimum membership of 100 workers for a trade union to be registered under section 120 of the Labour Code. The Committee had noted the Government’s indication that section 1 of the regulations issued pursuant to Act No. 23 of 1998 has fixed 100 members as a minimum membership, whereas the legislature has authorized a membership of 50 workers to set up a basic trade union in productive and service units so as to encourage the success of trade union activity. The Committee recalls once again that the establishment of a trade union may be considerably hindered, or even rendered impossible, when legislation fixes the minimum number of members of a trade union at obviously too high a figure, as is the case, for example, where legislation requires that a union must have at least 100 or 50 founder members. The Committee notes that the Government does not provide any information in this respect. It once again asks the Government to take the necessary measures to modify the law and regulations so as to reduce the minimum number of members required to form a union to a reasonable level.

Trade union registration. Previously, the Committee had noted that section 19 of Act No. 23 of 1998 governs the registration of trade unions. The Committee once again requests the Government 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 of the Convention. Right of workers’ and employers’ organizations to organize their administration. The Committee had previously noted that section 9 of Act No. 23 of 1998 provides for the structure of trade unions and, moreover, that sections 1, 2, and 3 of the regulations putting this section into effect clarify this structure. It noted, in this respect that, according to section 9 of Act No. 23, conferences of trade unions, trade union federations and professional associations shall hold annual meetings for the discussion and examination of items that lie before them. The Committee once again asks the Government to submit a copy of regulations putting into effect section 9 of Act No. 23 of 1998.

Right to elect representatives in full freedom. In relation to the eligibility requirement for a trade union office, the Committee had noted that, according to section 125(1) of the Labour Code, a worker must not have interrupted the exercise of the relevant occupation for more than one year and that, according to the Government, the enforcing regulations of section 8 of Act No. 23 of 1998 require members of a trade union’s secretariat to hold office for a minimum period of four years. In its report, the Government reiterates that section 125 of the Labour Code has been annulled and states that the election of representatives takes place in all freedom. The Committee recalls 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 members’ 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. Furthermore, the Committee reiterates its view that would be desirable to make the legislation 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 of 1994 on freedom of association and collective bargaining, paragraph 117). Accordingly, the Committee trusts that the Government will take the above principles into consideration in order to amend the enforcing regulations of Chapter VIII of Act No. 23 of 1998, and will provide information on any progress made in this respect.

Eligibility subject to a nationality requirement (section 125(2) of the Labour Code). The Committee had previously noted that regulations putting into effect section 8 of Act No. 23 of 1998 stipulate Libyan nationality as a condition for membership on the secretariat of a trade union. It had recalled 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 had also recalled 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, op. cit., paragraph 118). Accordingly, the Committee requests the Government to take the necessary measures to amend the regulations relating to section 8 of Act No. 23 of 1998 in order to allow foreign workers to take up trade union office, and to provide information on progress made in this respect.

Right to organize their administration and to formulate their programmes. Previously, the Committee had noted that the following provisions of Act No. 23 of 1998 tend to over-regulate matters that should be left to the trade unions themselves and their by-laws, and therefore entail a risk of interference by the public authorities in trade union activities:

–           section 15 of Act No. 23 of 1998 spells out in detail the rules on the basis of which trade union subsidiary offices will be supervised by the trade union secretariat;

–           section 19(4) of Act No. 23 of 1998 authorizes the public authorities to issue regulations on the rules and conditions governing the establishment of subsidiary offices by trade unions;

–           section 12 of Act No. 23 of 1998 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 had requested the Government to consider repealing the abovementioned provisions and any regulations which might have been issued under them. Noting that the Government’s report does not provide any information in this respect, the Committee once again requests the Government to provide information on any measure taken with a view to repealing sections 12, 15 and 19(4) of Act No. 23 of 1998 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.

Furthermore, the Committee had previously noted that, according to section 19(5) of Act No. 23 of 1998, regulations will be issued on the rules and procedures concerning the practice of trade union activity and had requested the Government to transmit any regulations issued under this provision. In its report, the Government indicates that section 19(5) of Act No. 23 only provides for the special structure of trade unions or that of occupational associations, the mandate is left to be provided for by the basic statutes of the trade unions, and that no regulation has been adopted under the provision. The Committee takes note of this information. It requests the Government to provide in the future any regulation which may have been issued under section 19(5) of Act. No. 23 of 1998.

Conciliation and arbitration procedure. The Committee had previously noted that, according to section 150 of the Labour Code, the exhaustion of all conciliation and arbitration procedures is a condition for a lawful strike and that section 176 imposes a penalty of imprisonment of one month or a fine against any person who contravenes this provision. The Committee had noted 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. These procedures, moreover, 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 had also observed that section 151 allows a strike 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 had recalled 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 binding on the parties concerned, may result in practice in the prohibition of strikes. The Committee had also emphasized 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, op. cit., paragraph 153). The Committee recalled 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, for example 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 takes due note from the Government’s report that its comments in this respect are being taken into consideration in the process of reviewing the Labour Code. The Committee trusts that its comments will be duly taken into account in the process of amendment to the provisions of the Labour Code on conciliation and arbitration procedures. It requests the Government to indicate any progress made in this respect.

The Committee recalls that the Government may avail itself of the technical assistance of the Office concerning all matters raised above if it so wishes.