Observation (CEACR) - adoptée 2018, publiée 108ème session CIT (2019)

Convention (n° 87) sur la liberté syndicale et la protection du droit syndical, 1948 - Egypte (Ratification: 1957)

Autre commentaire sur C087

Observation

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The Committee takes note of the observations made by the Union of Egyptian Democratic Workers and the Trade Union Organization of Transport Workers in Greater Cairo (TUWC) received on 31 August 2018; the International Trade Union Confederation (ITUC), the Real Estate Tax Authority Union, the Union of Workers in the Bibliotheca Alexandria, the Union Committee of Workers in Suez and the Union Committee of Damietta Fishers, received on 1 September 2018; the International Transport Workers’ Federation (ITF), received on 4 September 2018; the General Union of Transport Workers and Services on 18 and 23 October 2018, in relation to the application of the Convention in law and in practice and the Government’s reply thereto.

Article 2 of the Convention. Right of workers to establish and join organizations of their own choosing. The Committee recalls that it, alongside the Conference Committee on the Application of Standards, has been urging the Government to take steps to ensure that all workers are ensured the full enjoyment of their fundamental right to freely organize and, in particular, to guarantee the independence of trade unions and the elimination of all forms of interference in workers’ organizations. The Committee had noted the Government’s indication that the philosophy of the new Trade Union Law was based on the consolidation of the principle of free establishment of trade union organizations and federations, as well as the guarantee of their democracy and stability. The Committee had noted, however, the concerns raised by the ITUC, and further voiced by a number of stakeholders to the direct contacts mission in 2017, that the provision granting continuing legal personality only to trade union organizations recognized by law at the time of its enforcement would seriously disadvantage those unions that had been registered pursuant to the 2011 Ministerial Declaration on Freedom of Association as they were not considered as being recognized by law. The Committee had emphasized that, in the context of a long-entrenched system of legislatively imposed trade union monopoly, it was critical that all trade unions be given an equal chance to be registered under the new trade union law. It urged the Government to ensure that all trade unions existing at the time of the adoption of the Law on trade union organizations are able to function freely and carry out their activities without interference pending their regularization under the Law and to ensure that workers wishing to change their trade union membership may do so without detriment to their acquired rights relating to contributory provident funds, which otherwise might hinder the workers’ freedom to choose the organization with which they wish to affiliate.

The Committee takes due note of the Government’s indication that the Trade Union Law No. 213 was promulgated on 17 December 2017 and the implementing regulations issued in Ministerial Decree No. 35 on 13 March 2018. The Government states that all trade union organizations have reconciled their status whether they had been established under the previous Law No. 35 of 1976 or the 2011 Ministerial Declaration. The Government also states that trade union elections were held by direct secret ballot and all organizations are free to join others, form federations or work on their own.

While welcoming the adoption of the new Trade Union Law which no longer refers to a specific trade union federation which had previously given rise to a trade union monopoly situation imposed by law, the Committee notes with concern the numerous observations received from Egyptian and international trade unions indicating that the implementation of the Trade Union Law was carried out in a manner fraught with interference and obstacles to the registration of independent or autonomous trade unions which did not wish to be encompassed within the umbrella of the traditional Egyptian Trade Union Federation (ETUF). In this regard, the Government refers to a number of reasons for which certain trade union committees were not reconciled, including: a request for regularization was not submitted; the undertaking was merged or liquidated; problems among the members of the union executive board; a trade union fails to communicate with its affiliated members; documents submitted did not meet requirements and the union failed to address the shortcoming; dual membership in more than one union at the same level without exercising more than one occupation; not meeting the minimum membership requirement. The Government states that following the regularization, 2,214 trade union committees, 27 general trade unions and one confederation were registered. From the above number, 135 trade union committees and three general trade unions which had been set up under the 2011 Declaration were regularized. In a later communication, the Government indicates that 142 trade union committees which are not affiliated to the ETUF had regularized their status. The Government adds that those who were not able to regularize their situation can apply for a certificate of establishment and deposit with the administrative body at any time.

The Committee notes from the numerous communications received from the workers’ organizations a variety of concerns about the registration and election processes, including: unions that were able to reconcile their status but were excluded from elections and thus effectively barred from trade union activity; unjustified requests for documentation or registration; postponements in accepting applications; imposition of model by-laws; delays in delivering certificates rendering any trade union activity impossible; refusal to register trade union committees where another trade union was already in place; government removal of election candidates from the process. Additional complaints were made of pressure to join the ranks of the ETUF referring to several examples of general unions which eventually did affiliate and details were given on the disqualification of hundreds of independent candidates for trade union elections. According to these organizations, no remedial steps had been taken by the competent authorities, despite having raised these matters with the Ministry. The ITUC transmits a list of 40 trade union committees that are still awaiting the regularization of their status and concludes that the application of the Trade Union Law was carried out in such a way as to perpetuate the previously imposed trade union monopoly.

The Committee notes the Government’s reply to these observations that: (i) the majority of complaints lack tangible, concrete evidence or correct documents and include unsubstantiated claims or impressions that cannot be proved; (ii) three general trade unions which were not affiliated to ETUF freely applied to join the organization after they regularized their status; (iii) the General Union of Transport Workers was established and it is not affiliated to ETUF although the general unions have similar trade unions that are affiliated; (iv) 14 out of 25 union committees of the Real Estate Tax Union have been able to regularize their status; (v) no evidence has been provided of the withdrawal of workers from ETUF or their request to cease their deduction of union membership; (vi) the role of the Ministry of Manpower in elections is limited to organization while the exclusion of candidates and examination of grievances is under the authority of the judge; (vii) any delays gave rise to an extension in the voting period; and (viii) not entering the election does not restrict the trade union from exercising its activities nor effect the legal personality it has acquired. The Government assures that it will continue to work with full transparency and in cooperation with the ILO in order to overcome the challenges facing the Egyptian experience in establishing a nascent trade union freedom that has not been witnessed in the country for ages.

Finally, the Committee takes note of the comments made by the workers’ organizations that numerous provisions in the law interfere with the right of workers’ organizations to draw up their constitutions and rules and elect their representatives in full freedom and the Government’s general reply thereto. The Committee will examine these matters fully with the Government’s detailed report which is due next year.

While duly noting the information provided by the Government, the Committee finds itself bound to note with deep regret that despite the efforts made over many years to bring the legislation into line with the Convention, certain of the provisions of the Trade Union Law, its corresponding regulations, and their practical application have given rise to allegations of serious obstacles impeding the full exercise of freedom of association for all workers. The Committee welcomes the Government’s invitation to assist those organizations that were not able to regularize their situation and, in light of the detailed observations and specific cases raised in the communications from the national and international trade union organizations, requests the Government to review each of these cases with the organization concerned and to provide detailed information on the steps taken in this regard.

Minimum membership requirements. In its previous comment in 2017, the Committee had noted the concerns raised by the ITUC and by various stakeholders to the direct contacts mission that the minimum membership requirements for establishing a trade union at the various levels (enterprise, sectoral and national) were excessive and likely to hinder the right of workers to establish the organization of their own choosing and prevent the establishment of independent trade unions in practice. The Committee requested the Government to lower the minimum membership requirement for forming a trade union at enterprise level, set at 150 workers, so as to ensure the rights of workers to form and join the organization of their own choosing. The Committee notes the information in the Government’s latest report that it is currently studying the impact of the Trade Union Law’s provisions and undertaking a societal dialogue including all trade union organizations, employers’ representatives, and a few workers’ representatives who had not managed to regularize their status, to discuss the lowering of the minimum number required to form a trade union committee to 50 workers. The Government adds in its reply to the observations from the national and international workers’ organizations that many trade union were able to meet this requirement and they has not received any complaints that it constituted an obstacle to registration. The Committee must observe however that the numerous observations received from international and national workers’ organizations indicate to the contrary that the minimum membership requirement may be easily met by those elements of the trade union movement which had benefited from the decades of legislatively imposed trade union monopoly but were much more challenging for the independent trade unions. In this regard, the Committee recalls that it has previously noted that well over 90 per cent of the Egyptian economy was situated in micro- and small enterprises with fewer than 50 workers. The Committee trusts that the Trade Union Law will be amended in the near future to ensure that the level of minimum membership requirement at the enterprise level, as well as those for forming general unions and confederations (set at 15 enterprise unions and 20,000 workers and ten general trade unions and 200,000 workers, respectively) are amended so that they do not impede the right of all workers to form and join the organizations of their own choosing.

As regards its previous comments that the ban on workers joining more than one trade union should not apply in cases where the worker holds more than one job in different workplaces, the Committee notes the Government’s indication that the phrase “even if a worker exercises more than one occupation” was deleted from the prohibition in section 21(h) relating to the joining of more than one workers’ organization. The Government adds however that a worker who joins two trade unions of the same level would be in violation of this provision. The Committee trusts that the modification referred to by the Government will enable workers who have more than one job to join each of the corresponding unions in practice even if they are the same level (trade union committee, general union).

Articles 3 and 5. Right of workers’ organizations to organize their administration without interference and to enjoy the benefits of international affiliation. In its previous comments, the Committee noted the concerns raised by the ITUC in its observations and by several stakeholders to the direct contacts mission in relation to the ban on receipt of aid grants from foreign organizations in the draft trade union organizations law. Recalling its request that the Government modify this prohibition so as to ensure that it clearly enables trade unions to benefit from the technical assistance and support that may be provided by foreign entities for the exercise of their legitimate trade union activities, the Committee notes with interest that section 5 of the implementing regulations explicitly provides that trade union organizations may benefit from the technical cooperation programmes and activities provided by international organizations concerned with labour and worker affairs.

Finally, the Committee notes with regret that the Government has not amended the section of the Trade Union Law that penalizes various contraventions with imprisonment and simply states that their aim is to protect trade union work from intruders or the misuse of the name of a trade union in illicit work. While noting that the Government reiterates that these penalties are imposed in relation to issues that are considered crimes under the Penal Code and not related to trade union activities, the Committee nevertheless observes that imprisonment can be imposed for a wide variety of violations, and requests the Government to continue to keep these provisions under review and to provide detailed information on their application.

Labour Code. As regards the comments it has been making for several years on Labour Code No. 12 of 2003, the Committee notes the Government’s indication that a large number of the provisions commented upon by the Committee have been deleted in the latest draft. The Government provides certain explanations in response to some of the Committee’s comments; however it would appear that there remain certain issues in relation to the legal obligation for workers’ organizations to specify in advance the duration of a strike, an infringement of which is considered to be serious misconduct liable to dismissal of workers (sections 201 and 121(8) of the draft); the ability to have recourse to compulsory arbitration at the request of only one of the parties (sections 186 and 198); and the prohibition of industrial action in vital or strategic enterprises where stoppage of work would compromise national security or basic services provided for citizens to be designated in a decree by the Prime Minister (section 203). The Committee requests the Government to submit a copy of the latest draft of the Labour Code and expects that it will take fully into account the Committee’s previous comments in order to bring it into line with the Convention.

As regards the scope of the draft Labour Code, the Committee had noted in its previous comments the Government’s statement that it would prepare a new draft Law regulating domestic work and protecting domestic workers’ rights. The Committee once again requests the Government to provide a copy of the Law regulating domestic work.