Observation (CEACR) - adopted 2017, published 107th ILC session (2018)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Egypt (Ratification: 1957)

The Committee takes note of the observations made by the International Trade Union Confederation (ITUC) received on 1 September 2017 in relation to the application of the Convention in law and in practice. The Committee also notes the Government’s detailed reply to these observations as well as to the 2016 ITUC observations.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 106th Session, June 2017)

The Committee notes the discussion that took place in the Conference Committee on the Application of Standards in June 2017 concerning the application of the Convention. The Committee observes that the Conference Committee called upon the Government to: (1) ensure that the draft Law on trade union organizations, presently before the House of Representatives (Majlis Al Nouwab) for adoption, is in conformity with the Convention, in particular with respect to the concerns relating to the institutionalization of a single trade union system; (2) transmit a copy of this draft legislation to the Committee of Experts; and (3) ensure that all trade unions in Egypt are able to exercise their activities and elect their officers in full freedom, in law and in practice, in accordance with the Convention. The Committee called on the Government to accept an ILO direct contacts mission to assess the progress in respect of the abovementioned conclusions and requested that this information, as well as a detailed report from the Government, be transmitted to the Committee of Experts for examination before its November 2017 session.

The Committee welcomes the information that the direct contacts mission (DCM) was able to visit the country from 11 to 14 November 2017 and takes note of the mission report. The Committee also notes the draft Law on trade union organizations transmitted by the Government as the version submitted to the Majlis Al-Nouwab in May 2017, as well as the additional changes made by the Parliament in October, all of which were the subject of consideration by the direct contacts mission.

Trade union monopoly and the development of a legislative framework for freedom of association – Trade Union Act. The Committee recalls that it has been raising concerns about the non-conformity of Trade Union Act No. 35 of 1976 for several decades and that consideration by the Conference Committee on the Application of Standards of the application of this Convention in Egypt goes back to 2008 when it urged the Government to take tangible steps in the very near future to ensure that all workers were ensured the full enjoyment of their fundamental right to freely organize and, in particular, to guarantee the independence of trade union organizations and the elimination of all forms of interference in workers’ organizations.

In this regard, the Committee noted in its previous comments the Government’s indication that the final draft Law on trade union organizations and protection of the right to organize was being discussed by the Council of Ministers and was expected to be finalized soon. The Committee expressed its expectation that the new Law would address its long-standing comments concerning the Trade Union Act with regard to: the institutionalization of a single trade union system; the control granted by law to higher-level trade union organizations, and particularly the Confederation of Trade Unions, over the nomination and election procedures to the executive committees of trade unions; the control exercised by the Confederation of Trade Unions over the financial management of trade unions; the prohibition from joining more than one workers’ organization; the removal from office of the executive committee of a trade union which has provoked work stoppages or absenteeism in a public service or community services; and the requirement of the prior approval of the Confederation of Trade Unions for the organization of strike action.

Article 2 of the Convention. Right of workers to establish and join organizations of their own choosing. The Committee notes the Government’s indication in its latest report that the philosophy of the new draft Law is 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. In this respect, the Government confirms that the new draft Law provides for the possibility of establishing more than one trade union federation and a pluralism of general trade unions, while additionally eliminating the control previously granted under the 1976 Trade Union Act to the higher-level Confederation of Trade Unions. The Committee notes, however, the concerns raised by the ITUC and further reflected by a number of stakeholders to the direct contacts mission 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 are not considered as being recognized by law. The Committee notes the information provided by the Government that it is not possible to grant legal personality to those unions that had been registered under the Ministerial Declaration as such status can only be granted through law and not a declaration. The Government adds that the draft was amended to allow all trade unions without exception to reconcile their situation within two months of the issuance of the implementing regulation.

The Committee emphasizes that, in the context of a long-entrenched system of legislatively imposed trade union monopoly, it is critical that all trade unions be given an equal chance to be registered under the new trade union law, once adopted. This would not be possible in a system where legal personality is maintained only for those registered under the 1976 Act unless the unions registered under the Ministerial Declaration on Freedom of Association are also able to maintain their membership and continue their activities during the period stipulated for the reconciliation of their status. The Committee further expresses its deep concern at the indication in the ITUC’s observations, also raised in discussions with the DCM, that the State Advisory Council issued a statement on 21 December 2016 stipulating that the Ministry of Manpower and Immigration shall not accept applications for registration from independent trade union organizations and that, as a result, there has been severe obstruction and interference with the internal trade union affairs of the organizations registered under the Ministerial Declaration. Emphasizing the conclusions of the Committee on the Application of Standards requesting the Government to ensure that all trade unions in Egypt are able to exercise their activities and elect their officers in full freedom, in law and in practice, the Committee urges 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. In this regard, the Committee further urges the Government 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.

Minimum membership requirements. The Committee further notes the concerns raised by the ITUC in its observations and by various stakeholders to the 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 notes with regret the indications provided by the Government that the number of workers required to establish a trade union committee at the enterprise level had been increased during the parliamentary debate from 50 to 250. The Government adds that minimum membership requirements are necessary for the good organization of trade union work and to ensure the power of trade union organizations and preserve against fragmentation. The Committee must nevertheless recall that, while it has found that the establishment of a minimum membership requirement in itself is not incompatible with the Convention, it has always been of the view that the number should be fixed in a reasonable manner so that the establishment of organizations is not hindered. It also considers that this criterion should be assessed in relation to the level at which the organization is to be established (for example, at the industry or enterprise level) and the size of the enterprise (see the 2012 General Survey on the fundamental Conventions, paragraph 89 and related footnotes). In this regard, the Committee notes the uncontested information provided by various stakeholders to the direct contacts mission that well over 90 per cent of the Egyptian economy was situated in micro- and small enterprises with fewer than 50 workers. Additionally, the Committee notes that the draft Law requires a minimum of 15 enterprise unions and 20,000 workers to establish a general (sectoral) trade union and ten general trade unions and 200,000 workers to establish a trade union federation. The Committee notes from the mission report that detailed discussions were held in relation to the minimum membership requirement and urges the Government, following full consultations with all the social partners concerned, to take the necessary measures to ensure that the level of minimum membership requirements set out in the Law once adopted are not set at such a level as to perpetuate the previously imposed trade union monopoly and thus ensure the right of all workers to form and join the organization of their own choosing.

Finally, the Committee recalls 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 and once again requests the Government to take the necessary measures in this regard.

Articles 3 and 5. Right of workers’ organizations to organize their administration without interference and to enjoy the benefits of international affiliation. The Committee notes the concerns raised by the ITUC in its observations and by several stakeholders to the mission in relation to the ban on receipt of aid grants from foreign organizations in the draft trade union organizations law. The Committee recalls in this regard that it has considered that subjecting the receipt of funds from abroad to the approval of the public authorities to be incompatible with the Convention (see the 2012 General Survey on the fundamental Conventions, paragraph 110). While taking due note of the circumstances in the country and the national security concerns described by the Government and stressed by various stakeholders to the direct contacts mission, the Committee considers that an outright prohibition of the receipt of funds from a foreign entity is an excessive measure for addressing these concerns and the specific targeting of trade unions in this regard, as opposed to subjecting such receipt to general approval provisions covering all aspects of society, is difficult to understand. The Committee requests the Government to modify this prohibition prior to the adoption of the law 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.

Finally, the Committee notes a number of other issues raised by the ITUC in its observations concerning the detailed regulation of trade union activities, constitutions and eligibility for union office. The Committee firmly expects the Government to ensure that the law once adopted will not be implemented in a manner which would infringe on the right of workers’ organizations to carry out their activities, draw up their constitutions and rules and elect their officers freely, and requests the Government to provide detailed information in its next report on the application of the law.

The Committee takes note of the communication from the Government received on 7 December 2017 providing its observations on the DCM report and indicating that the Parliament had adopted the draft law. The Committee notes with regret that the only apparent change to the draft was to lower the minimum membership requirement for forming a trade union at enterprise level to 150 workers, a requirement that the Committee still considers to be well beyond a reasonable level that would ensure the rights of workers to form and join the organization of their own choosing. Additionally, the Committee notes with regret the section at the end of the law penalizing various contraventions with imprisonment. The Committee further notes the Government’s indication that the implementing Executive Regulations will clarify the rights related to the other points raised above. The Committee urges the Government to ensure that all workers are able to exercise freely the rights under the Convention in accordance with the above comments and requests it to provide detailed information in this regard in its next report, including a copy of the law on trade union organizations and of the Executive Regulations and to indicate any steps taken or contemplated to revise the law on trade union organizations.

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 the State Council finished its examination of the draft Labour Code on 30 January 2017 and that it was referred to the Majlis Al-Nouwab. The Parliamentary Manpower Committee has held a few dialogue sessions with the majority of trade union federations, current and independent trade unions, in accordance with the Government’s plan of action. The Government adds that the draft Law was expected to be submitted to the Parliament plenary in October for promulgation.

The Committee notes that the latest draft of the Labour Code shared by the Government in 2017 addresses a variety of issues raised under this and other Conventions but observes that the following comments in relation to the 2003 Labour Code still remain unaddressed: 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 (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 urges the Government to ensure that the new Labour Code is adopted in the near future and that it will take fully into account the above comments. It requests the Government to provide information in its next report on the progress made in this regard and to supply a copy of the Labour Code once adopted.

The Committee further notes with respect to its previous comments on the exclusion of certain categories of workers from the draft Labour Code that the Government has announced that it would prepare a new draft Law regulating domestic work and protecting domestic workers’ rights while government officials are covered by the new Civil Service Law No. 81 of 2016. The Committee requests the Government to provide a copy of the Law regulating domestic work once it is adopted and will examine the impact of the Civil Service Law of 2016 on the rights of public servants under this Convention once a translation is available.

[The Government is asked to reply in full to the present comments in 2018.]