Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Eritrea (Ratification: 2000)

Articles 1, 2 and 4 of the Convention. Legislative issues. The Committee recalls that since its first examination of application of the Convention in Eritrea, it has consistently requested the Government to amend legislation or adopt additional laws and regulations in order to provide adequate protection against anti-union discrimination and acts of interference, and to recognize and guarantee the rights of domestic workers and civil servants under the Convention.

With regard to protection against anti-union discrimination and acts of interference, the Committee notes that the Government reiterates that violations of prohibition of anti-union discrimination and acts of interference are punishable as a petty offence under article 691 of the Transitional Penal Code of Eritrea, which concerns infringement of a provision of a regulation, order or decree lawfully issued by a competent authority. The Government further recognizes that with regard to acts of anti-union discrimination during employment, the Labour Proclamation only provides for reinstatement of trade union leaders in cases of unjustified dismissal. Therefore, the Ministry of Labour and Social Welfare will conduct a tripartite workshop with a view to finalizing the drafting of relevant legal provisions. The Committee is bound to note that the Government’s indications do not contain any novelty concerning the legislative shortcomings of the protection against anti-union discrimination and acts of interference. It notes that article 691 of the Transitional Penal Code contains a general definition of petty offences, and does not particularly concern anti-union discrimination or acts of interference, which do not seem to be qualified as petty offences in any specific legal provision. Furthermore, in view of the fact that a new Penal Code was adopted and published in 2015, which seems to replace the Transitional Penal Code, the Committee requests the Government to clarify whether the provisions of the previous Transitional Penal Code are still in force in the country.

With regard to domestic workers, the Committee notes that the Government indicates that: (i) since domestic workers are not included in the list of article 3 of Labour Proclamation, which enumerates the groups of workers that fall outside its scope, it is reasonable to construe the text as providing coverage for this group; (ii), under article 40 of the Proclamation, which grants to the Minister the power to determine the provisions of the Proclamation which shall apply to domestic workers, the guarantees enshrined in the Convention can be afforded to domestic workers by directive or regulation; and (iii) the 2015 Civil Code also includes provisions concerning the rights of domestic workers and no domestic workers in Eritrea are prohibited from the rights to organize and collective bargaining. The Committee notes that articles 2274–2278 of the Civil Code concern the contract for domestic employment and the mutual obligations of the parties to it but that these provisions do not contain reference to freedom of association or the right to collective bargaining. Furthermore, while domestic workers are not excluded from the scope of Labour Proclamation under article 3, the Committee understands from the Government's response and the content of article 40 of the Proclamation that the application of all labour law guarantees, including those concerning collective rights, to domestic workers would be entirely dependent on the content of a future ministerial directive. Therefore, the Committee once again notes with concern that Eritrean law still does not explicitly provide domestic workers with the rights established in the Convention.

With regard to public sector, the Committee notes that the Government indicates that the workers of public sector who are excluded from the scope of Labour Proclamation pursuant to its article 3, have the right to organize and bargain collectively, as in the absence of the Civil Service Code the transitional civil code prevails. The Committee notes nevertheless that in 2015 a new Civil Code was published that replaced the Transitional Civil Code of 1991, and that article 2176 of this Code excludes members of the military, police, and security forces, as well as members of the Eritrean civil services, judges and prosecutors from the scope of the chapter on employment. Article 2182 of the Civil Code, which establishes the right to conclude collective agreements, is in this chapter. The Committee is therefore bound to note that the new Civil Code reproduces the exclusions of article 3 of Labour Proclamation concerning public sector employees. The Committee recalls in this regard that the Convention covers all workers and employers, and their respective organizations, in both the private and the public sectors, regardless of whether the service is essential. The only exceptions authorized concern the armed forces and the police, as well as public servants engaged in the administration of the State. In view of the above considerations and noting with concern the absence of progress with respect to the various substantive legislative issues raised in its previous comments, the Committee once again urges the Government to take all the necessary measures to enact new legislation or revise the existing legislation in order to: (i) provide adequate protection against anti-union discrimination and acts of interference, and (ii) ensure that domestic workers and civil servants who are not engaged in the administration of the State enjoy the right to organize and collectively bargain. The Committee requests the Government to provide information of the developments in this regard.

Articles 4, 5 and 6. Promotion of collective bargaining. Compulsory national service. The Committee recalls that in its previous comment, it had noted with concern that large numbers of Eritrean nationals were denied the right to collective bargaining for indefinite periods of their active lives while they were performing civilian activities that fell under the scope of the Convention as part of their obligation of compulsory national service. It had therefore urged the Government to take the necessary measures to ensure that Eritrean nationals are not denied the right to bargain collectively beyond the scope of the exceptions set out in Articles 5 and 6 of the Convention. The Committee notes the Government’s indication that conscripts may be called to perform non-military activities in specific circumstances, namely in genuine cases of emergency or force majeure. It further adds that that it has been taking progressive measures to demobilize and rehabilitate conscripts and is gradually integrating national service members into civil servants. The Committee notes the Government’s indications concerning the gradual demobilization of members of national service. Nevertheless, in view of the fact that current legislation does not guarantee the right of civil servants to collective bargaining, the Committee notes that where demobilization leads to integration into civil service, the demobilized will continue to be excluded from the right to collective bargaining. The Committee therefore once again emphasizes the importance of rapidly adopting a legal framework that would effectively guarantee the right of civil servants not engaged in the administration of the State to collective bargaining and urges the Government to take the necessary measures. The Committee requests the Government to provide information of the developments in this regard.

[The Government is asked to reply in full to the present comments in 2022.]