Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Ethiopia (Ratification: 1963)

The Committee notes the comments submitted by the International Trade Union Confederation (ITUC) in communications dated 4 and 31 August 2011, and the comments submitted by Education International (EI) in a communication dated 31 August 2011, referring to issues pending before this Committee and the Committee on Freedom of Association (CFA) in Case No. 2516 (exclusion of various categories of workers, primarily in the public sector, from the right to form and join trade unions, lack of independent investigations of serious violations of trade union rights) and alleging the Government’s failure to implement the recommendations of the ILO supervisory bodies. The Committee also notes the Government’s reply to the previous comments of the ITUC and EI. The Committee further notes the conclusions and recommendations of the CFA of November 2011 in Case No. 2516.

Teachers’ associations. In its previous comments, the Committee had urged the Government to take all the necessary measures to ensure that the National Association of Ethiopian Teachers (NTA) is registered without delay. The Committee notes that the Government indicates, in its report, that the NTA submitted its application for registration to the Charities and Societies Agency (CSA) and that the CSA refused in writing its registration and requested the NTA to revise its application in accordance with the Charities and Societies Proclamation (No. 621/2009) and the Charities and Societies Regulations (No. 168/2009). In particular, the Government indicates that according to article 69/4 of the Proclamation and article 5/1 of the Regulation, the CSA shall refuse the registration if the name proposed for registration is similar to the name of another charity or society or any other institution. The Government indicates that the CSA pointed out that all the names suggested by the NTA were similar to the names of already registered organizations. The Government indicates that the Agency had therefore requested the NTA to change its name. The Government further indicates that according to article 15/2 and articles 55 and 57 of the Proclamation, charities or societies may be established either for charitable purposes or for the promotion of the rights and interests of its members. The Government indicates that the NTA’s rules enabled it to function as charity and society at the same time, and that the CSA had therefore requested the NTA to correct its rules. The Government further indicates that instead of resubmitting an application accordingly, the NTA submitted a complaint to the Institute of Ombudsperson (IO) alleging refusal of registration by the Ministry of Justice. It also indicates that this complaint is still pending, NTA having failed to appear at the office of the IO to follow the case.

The Committee notes contradictory information in EI’s communication, which indicates that NTA’s registration has been denied verbally by the Agency and that, despite the repeated requests from the NTA’s representative and contrary to article 3(3) of the Regulation, the Agency did not respond in writing to the refusal to register, which prevents the NTA from appealing the refusal. EI further indicates that since the initial meeting with the Ombudsperson in January 2009, when the Vice Commissioner guaranteed that she will discuss the issue with the concerned colleagues in the IO, and despite the various reminder visits of the NTA’s representatives, the Ombudsperson has been completely silent.

The Committee further notes the Government’s indication that teachers of public schools are enjoying their rights by being members of the Ethiopian Teachers Association (ETA). In this respect, the Committee recalls that workers and employers have the right to establish and join organizations of their own choosing and that an organization in a specific occupation should not constitute an obstacle to the establishment of another organization, if the workers so wish.

The Committee deeply regrets that three years after the NTA’s request for registration, this organization is still not registered. It recalls that the right to official recognition through legal registration is an essential facet of the right to organize since that is the first step that workers’ or employers’ organizations must take in order to be able to function efficiently, and represent their members adequately. The Committee draws the Government’s attention to its responsibilities in ensuring that this right is respected in law and in practice. The Committee urges the Government to ensure that the NTA is registered without further delay so that teachers may fully exercise their right to form organizations for furthering and defending teachers’ occupational interest and to provide information on the progress made in this respect.

With regard to the Charities and Societies Proclamation, the Committee recalls that it has previously noted with concern that the Proclamation organizes an ongoing and close monitoring of the organizations established on its basis and gives governmental authorities, in particular through the establishment of the CSA, great discretionary powers to interfere in the right to organize of workers and employers, in particular in the registration, internal administration and dissolution of the concerned organizations with respect to those falling within its scope, which appear to encompass civil servants, including teachers in public schools. The Committee urged the Government to take the necessary measures, without delay, to ensure that the Proclamation is not applicable to workers’ and employers’ organizations and that such organizations are ensured effective recognition through legislation which is in full conformity with the Convention. The Committee regrets that the Government’s report contains no information on the measures taken to this effect. The Committee expresses the hope that the Government will provide information on the progress made in this regard in its next report and reminds the Government that it may avail itself of the technical assistance of the ILO in this respect.

Civil servants. The Committee recalls that in its previous comments it had requested the Government to take the necessary measures to amend the Civil Servant Proclamation, so as to ensure that the freedom of association rights of civil servants, including teachers in public schools, are fully guaranteed. The Committee notes that the Government reiterates its previous statement that the right of workers, including civil servants, to form association is enshrined under article 42 of the Constitution. The Government further indicates that the country is under a comprehensive civil service reform programme designed to provide efficient and effective services to the public and that civil servants, as part and parcel of the executing body, have a key role to play in implementing the reform. The Government also indicates that the reform will have a significant role in strengthening democracy, ensuring good governance and guaranteeing the rights of all citizens in the country; and that, within this process, it commits itself to ensure all the benefits of civil servants. The Committee expresses the hope that the Government’s next report will contain full information of the measures taken to amend the Civil Servant Proclamation, including in the framework of the reform referred to by the Government, so as to guarantee the right of civil servants, including teachers in public schools, to establish and join organizations of their own choosing for the promotion and defence of their occupational interests.

Labour proclamation (2003). In its previous comments, the Committee had requested the Government to ensure the right to organize of the following categories of workers who were excluded, by section 3, from the scope of application of the Labour Proclamation.

Concerning workers whose employment relations arise out of a contract concluded for the purpose of upbringing, treatment, care, rehabilitation, education, training (other than apprenticeship), the Committee notes the Government’s indication that such workers are not in a relationship for employment purposes but in a relationship focusing on how the individual is brought up, treated or rehabilitated, and that the relationship that exists between such two parties is not considered as a proper employer–employee relationship. The Government indicates that for this reason, the abovementioned category of workers is excluded from the scope of the Proclamation. The Government also indicates its intention to undertake further examination that will enable it to take appropriate measures in this respect. The Committee takes note of the Government’s desire to avail itself of the technical assistance of the Office in this process. The Committee recalls that all workers, without distinction whatsoever, including without discrimination in regard to occupation, should have the right to establish and join organizations of their own choosing. The Committee trusts that the necessary measures will be taken by the Government to ensure that the abovementioned categories of workers enjoy the rights afforded by the Convention, and that the necessary technical assistance of the Office, requested by the Government, will be provided in the near future.

Concerning the right to organize of workers under contract of personal service for non-profit-making purposes, the Committee notes the Government’s indication that the Labour Proclamation provides in article 3, sub-article 3/C that the Council of Ministers shall issue a regulation governing the condition of work applicable to personal services, including the right to organize. The Government’s report adds that the newly adopted ILO instrument on domestic workers will help the country with the drafting of this regulation. The Committee expresses the hope that the new regulation will be issued without further delay so as to ensure that workers under contract of personal service for non-profit-making purposes have the right to organize in law and in practice. It requests the Government to provide information on the progress achieved in this respect and to transmit a copy of this regulation once it is adopted.

In relation to the right to organize of managerial employees, the Committee notes the Government’s indication that their exclusion is explained by the fact that they have different interests of those of other employees. The Government also indicates that managerial employees are those working in the interest and on behalf of the employer and can, therefore, conclude a contract of employment to protect their conditions of employment in accordance with the Ethiopian Civil Code and can form an association for lawful purposes based on the Constitution. It further indicates that this matter will be studied and that the experiences of other countries on the matter will be explored. The Committee recalls that Article 2 of the Convention makes no distinction based on the nature of the functions or the hierarchical level of workers, who should all enjoy the right to organize, including managerial and executive staff. The Committee considers that provisions which prohibit workers in this category from joining trade unions in which other workers are represented are not necessarily incompatible with the Convention, provided they have the right to establish their own organizations and that the right to belong to those organizations was restricted to persons performing senior managerial or decision-making functions. The Committee requests the Government to take the necessary measures in order to ensure that the right of managerial employees to establish and join organizations of their own choosing for furthering and defending their interests is fully guaranteed. It requests the Government to provide information on all measures taken in this respect.

In relation to the right to organize of judges and prosecutors, the Committee takes note of the Government’s indication that the Constitution guarantees the right to organize for any lawful purposes or causes and that, accordingly, judges and prosecutors are able to form associations of their own. The Committee requests the Government to provide information on the existing organizations of judges and prosecutors.

Concerning the right to organize of employees of state administration, the Committee regrets that no information has been provided by the Government on the measures taken to ensure their right to organize. Recalling that the only exceptions authorized by Convention No. 87 are the members of the police and armed forces, the Committee once again urges the Government to take all the necessary measures, without further delay, to ensure that employees of state administration have the right to organize, and to provide information in its next report on the progress made in this respect.

In its previous comments, the Committee had requested the Government to delete air transport and urban bus services from the list of essential services in which strike action is prohibited (section 136(2)). The Committee notes the Government’s indication that these services are essentials for Ethiopia since the private sector for these services has not been developed yet; and that, since the Government is subsidizing the sector, the removal of these services would affect the poor part of the population who is benefiting from them. The Government indicates that for this reason, the interruption of these services would endanger the life, personal safety or health of the whole or part of the population directly or indirectly. Recalling once again that these services do not constitute essential services in the strict sense of the term, the Committee suggests, once again, that the Government give consideration to the establishment of a system of minimum service in these services of public utility, rather than impose an outright ban on strikes, which should be limited to essential services in the strict sense of the term. The Committee once again requests the Government to delete the abovementioned services from the list of essential services and to provide information on the measures taken or envisaged in this respect.

The Committee recalls that it had previously requested the Government to amend its sections 143(2) and 160(1) so as to ensure that, except in situations concerning essential services in the strict sense of the term, acute national or local crisis and public servants exercising authority in the name of the State, recourse to compulsory arbitration is allowed only upon request of both parties. It notes the Government’s indication that the majority of cases submitted to the Labour Relations Board were in accordance with the collective agreements signed between employers and trade unions. The Committee once again recalls that in cases of disputes of interest, a provision which permits either party unilaterally to request the intervention of the labour authority to resolve a dispute may undermine effectively the right of workers to call a strike. Therefore, the Committee once again requests the Government to amend its legislation so as to bring it into conformity with the Convention and to provide information concerning the measures taken or envisaged in this respect.

The Committee had previously requested the Government to amend section 158(3) which provides that the strike vote should be taken by the majority of the workers concerned in a meeting in which at least two-thirds of the members of the trade union are present. The Government indicates that the requirement of two-thirds of the members of the union is not to decide on the action but to give the chance to the majority of members to attend and discuss the issue, to prevent unnecessary strike action and to protect the interests of most of the employees who could be affected by the action. The Committee recalls that, if the legislation requires a vote by workers before a strike can be held, it should be ensured that account is taken only of the votes cast, and that the required quorum and majority are fixed at a reasonable level. The Committee also recalls that the observance of a quorum of two-thirds of the members of a trade union may be difficult to reach especially where the trade unions have large numbers of members covering a large area. The Committee therefore once again requests the Government to amend section 158(3) of the Labour Proclamation so as to lower the quorum required for a strike ballot and to provide information in its next report on the progress made in this respect.

The Committee once again requests the Government to ensure that the provisions of the Labour Proclamation which, as noted above, restrict the right of workers to organize their activities, are not invoked to cancel an organization’s registration pursuant to section 120(c) until they have been brought into conformity with the provisions of the Convention.

The Committee once again requests the Government to take the necessary measures, without delay, to bring the legislation and practice into full conformity with the Convention, and to provide detailed information in its next report on the progress made thereon, as well as on the time frame for such action.