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Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Libya (RATIFICATION: 2000)

The Committee notes the Government’s report and its reply to the comments submitted by the International Confederation of Free Trade Unions (ICFTU) on 31 August 2005 relating to the absence of independent trade unions and the non-existence of trade union activity in practice. The Committee also notes that the ICFTU submitted a communication dated 10 August 2006 reiterating its previous comments. The Government indicates, in this respect, that the General Federation of the Jamahiriya’s Workers is an active member of the International Federation of Arab Trade Unions, the African Trade Union Organization, the Federation of the Unions of Coastal Countries and the World Confederation of Labour, attesting to the independence of the Libyan Arab Jamahiriya’s trade unions. As regards the lack of trade union activity in practice, the Government states that trade unions have convened several symposia, participated in regional and international activities, and publish periodicals and publications which contribute to encouraging workers to participate effectively in translating laws and decisions relating to work.

The Committee takes note of the Government’s indication that section 38 of Act No. 107 of 1975 annuls Chapter 4 (sections 115-137) of the Labour Code, various provisions of which the Committee had commented upon on previous occasions.

Article 2 of the Convention. Right of workers and employers without distinction whatsoever to establish and join organizations of their own choosing. Exclusion of certain categories of worker from the right to organize. The Committee had previously referred to section 1 of the Labour Code of 1970, which excludes from the scope of the Labour Code certain categories of worker (domestic workers, rural workers, seafarers and public employees). The Committee takes note of the Government’s statement that, as indicated in section 2 of Act No. 23 of 1998 on trade unions, federations and professional associations, the right of affiliation is a principle established for everyone without discrimination, and that this principle is enshrined in section 1 of Act No. 107 of 1975. The Committee notes this information.

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 notes the Government’s indications 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 this connection, 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.

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. The Committee notes the Government’s indications that section 118 was amended by Act No. 107 of 1975, that section 5 of Act No. 7 of 1975 establishes a minimum age of 18 years as a condition for joining a trade union, and that the age requirement was appropriate as it enabled members to play a role after he or she had acquired some work experience and therefore possessed the ability to discuss in all objectivity subjects submitted to a trade union. In this connection, the Committee recalls that it considers that the age limit for admission to the membership of a trade union should be the same as that for admission to employment. The Committee requests the Government to take the necessary steps to modify the legislation accordingly.

Prohibition of membership of more than one trade union. Previously the Committee had referred to section 118(3) of the Labour Code, which prohibits membership in more than one trade union. In this regard the Committee takes due note of the Government’s indication that this section was annulled and that, under Chapter II of Act No. 23 of 1998, workers may join more than one union should they possess more than one occupation.

Trade union monopoly (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). The Committee had previously 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. In this respect, the Government indicates that, although it confirms the annulment of section 118(3) of the Labour Code, section 2 of Act No. 23 of 1998 nevertheless specifies that “the establishment of more than one trade union or association in the same occupation shall not be authorized”. The Committee further notes the Government’s statement that the purpose of this section is to focus the trade union effort deployed by workers, and not disperse it in more than one field in the same occupation. In this connection, the Committee 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 in the Convention, which requires trade union diversity to remain possible in all cases. The Committee requests the Government to amend section 2 of Act No. 23 of 1998 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 for a trade union to be registered under section 120 of the Labour Code. The Government states in this regard 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. In this respect, the Committee recalls 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 asks the Government to take the necessary measures to modify the laws so as to reduce the minimum number of members required to form a union.

Trade union registration. Previously, the Committee had requested the Government to provide information concerning the competent authority and the applicable procedure for the registration of trade unions, and to transmit the texts of any regulations issued under section 19 of Act No. 23 of 1998 as well as the standard registration form mentioned therein. The Committee notes that the Government confirms that Act No. 23 of 1998 governs the registration of trade unions. In these circumstances, the Committee once again asks 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 referred to the requirement of the approval of the Ministry of Labour and Social Affairs for trade unions to establish subsidiary offices, in accordance with section 136 of the Labour Code. The Committee notes the Government’s indication 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. The Committee notes, in this respect, that section 9 of Act No. 23 of 1998 provides that 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, but otherwise does not indicate whether trade unions require the approval of the Ministry of Labour and Social Affairs to establish subsidiary offices. Accordingly, the Committee asks the Government to submit a copy of the regulations putting into effect section 9 of Act No. 23 of 1998 and to indicate whether or not trade unions must seek the approval of the Ministry of Labour and Social Affairs before establishing subsidiary offices.

Right to elect representatives in full freedom. The Committee had previously noted that section 125(7) of the Labour Code provides that candidates to trade union office should have engaged in the trade or occupation for at least three years, and section 118, which adds that in order to qualify for trade union membership, which is an eligibility requirement for office according to section 125(1), a worker must not have interrupted the exercise of the relevant occupation for more than one year. In this regard the Committee notes the Government’s indication that the enforcing regulations of section 8 of Act No. 23 of 1998 requires members of a trade union’s secretariat to hold office for a minimum period of four years. The Committee considers 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 member’s 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. The Committee is of the view that, in order to bring such legislation into conformity with the Convention, it would be desirable to make it 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 requests the Government to amend the enforcing regulations of Chapter VIII of Act No. 23 of 1998 in keeping with the above principle.

Eligibility subject to a nationality requirement (section 125(2) of the Labour Code). The Committee had previously noted that section 125(2) of the Labour Code provides that candidates for trade union office are eligible only if they are of Libyan nationality. The Committee notes that the Government states that the 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. The Committee recalls in this respect that it considers 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 further recalls 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). The Committee requests the Government to amend the regulations relating to section 8 of Act No. 23 of 1998 accordingly.

Right to organize their administration and to formulate their programmes. The Committee notes that certain 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 notes that the Government provides no information concerning the above provisions. It once again requests the Government to consider repealing both the abovementioned provisions and any regulations which might have been issued under them. The Committee also requests the Government to once again provide information on any regulations which may have been issued in the meantime under these provisions. The Committee notes furthermore 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. The Committee requests the Government to transmit in its next report the text of any regulations issued under this provision.

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 or a lockout and that section 176 imposes a penalty of imprisonment of one month or a fine against any person who contravenes this provision. The Committee 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 or a lockout 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 notes in this respect that the Government restates sections 150 and 152 of the Labour Code, but otherwise provides no information concerning this matter. In these circumstances, the Committee once again recalls 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 emphasizes yet again 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 recalls 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 once again asks the Government to take the necessary measures to amend the provisions of Chapter V of the Labour Code to bring them into harmony with the above principles, and to keep it informed in this respect.

Articles 2 and 3. Dissolution of organizations on grounds which are contrary to the principles of freedom of association. The Committee takes note of the Government’s statement that dissolution is done in accordance with section 4 of Act No. 23 of 1998. The Committee notes in this regard that section 4(7) of Act No. 23 of 1998 provides that unions shall formulate by-laws governing their dissolution.

Article 5. Right of trade unions to establish federations and confederations. The Committee takes note of the Government’s indication that section 2 of Act No. 23 of 1998 provides that trade unions, federations and professional associations have the right to set up confederations at the national level, as well as to be affiliated with Arab, regional and international trade union organizations.