Observation (CEACR) - adoptée 2009, publiée 99ème session CIT (2010)

The Committee notes the Government’s reply to its previous direct request.

The Committee notes the comments of the International Trade Union Confederation (ITUC) of 26 August 2009, which refer to matters previously raised by the Committee.

Articles 1 and 2 of the Convention. In its previous comments, the Committee had noted that section 28(3) provides for reinstatement of trade union leaders in case of an unjustifiable dismissal and had requested the Government to take the necessary steps to amend section 23 of the Labour Proclamation, which protects workers against dismissal linked to trade union membership or trade union activities, so as to broaden the protection to cover acts of anti-union discrimination committed at the time of recruitment or during the course of employment (transfers, relocations, demotions, etc.).

In this connection, the Committee, while noting the Government’s statement that article 120(7) of the Labour Proclamation, which covers labour disputes, also includes complaints directed against steps taken by the employer on promotion, job transfer and training of employees, observes that article 120(7) merely sets out the types of collective labour disputes which may be subject to conciliation or arbitration. The Committee must therefore recall that the Convention requires protection against discrimination against workers for anti-union reasons to cover recruitment and all prejudicial acts during the course of employment, including dismissal, transfer, relocation, demotion, deprivation and restrictions of all kinds (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 212). Noting the Government’s indication that the Ministry would consider broadening the protection against anti-union discrimination to cover recruitment and all prejudicial acts during the course of employment, including dismissal, transfer, relocation, demotion, deprivation and restrictions of all kinds, the Committee once again expresses the hope that section 23 of the Labour Proclamation will be amended accordingly in the near future. The Committee requests the Government to provide information on the measures taken or envisaged in this regard.

The Committee recalls that it had previously considered that a fine of 1,200 nafka, set out in section 156 of the Labour Proclamation, to punish those guilty of anti-union discrimination or acts of interference, did not constitute an adequate protection and had noted the Government’s indication that section 692 of the Transitional Penal Code became applicable in cases where an offence was considered severe or repeated.

In this respect, the Committee had requested the Government to provide information concerning the cases, means and method by which an offence of anti-union discrimination or interference by employers in workers’ organizations was deemed to become so severe as to attract higher penalties than those provided for in section 156 of the Labour Proclamation. The Committee notes the Government’s indication that any breach of the law – even a petty one – is also punishable under the Transitional Penal Code. The Committee requests the Government to indicate the sanctions applicable and provide copies of penal sentences regarding cases of anti-union discrimination and interference.

The Committee recalls that the existence of general legislative provisions prohibiting acts of anti-union discrimination and acts of interference is not enough, if they are not accompanied by effective and rapid procedures to ensure their application in practice (see General survey, op. cit., paragraph 214). The Committee expresses the hope that the legislative amendments mentioned by the Government concerning anti-union discrimination will take into account the Committee’s observations and requests the Government to indicate the measures taken or envisaged in this respect.

The Committee had further requested the Government to indicate whether, by referring solely to breaches by employers’ associations, section 156 of the Proclamation only provided for sanctions against employers’ organizations and not against individual employers who may or may not be members of organizations. The Committee notes the Government’s statement that section 156 in the national language indeed applies to individual employers.

Articles 1, 2, 4 and 6. Previously, the Committee had expressed the strong hope that the Ministry would issue a regulation in the near future that ensured that domestic employees were entitled to exercise their trade union rights, guaranteed under Conventions Nos 87 and 98. The Committee notes the Government’s statement that domestic employees, like all other categories of workers, are entitled to the right to organize and collective bargaining, since the promulgation of the Labour Proclamation No. 118/2001. It also notes that the Government’s statement that a trade union organization of domestic workers, the Dembe Sembel Houses Association, has been constituted and is affiliated with the National Confederation of Eritrean Workers.

The Committee had previously requested the Government to provide specific information concerning the status of the draft Civil Service Proclamation. The Committee regrets that the Government reiterates that the drafting of the legal text concerning public servants, which would guarantee the right to organize to civil servants, reached its final stage and would be communicated to the ILO once adopted. In this regard, the Committee once again expresses the hope that the Government will take the necessary measures, in consultation with the social partners, to improve its legislation on public servants in respect of the rights enshrined in the Convention and requests it to transmit copies of the relevant legislative acts upon their adoption.