Report in which the committee requests to be kept informed of development - Report No 367, March 2013

Case No 2952 (Lebanon) - Complaint date: 28-MAY-12 - Follow-up

Allegations: The complainant organization denounces the denial of trade union rights to employees in the public sector, obstacles raised to the establishment of independent trade unions in the private sector, and the Government’s refusal to promote an inclusive and constructive social dialogue

1. 863. The complaint is contained in a communication dated 28 May 2012 from the National Federation of Trade Unions of Workers and Employees of Lebanon (FENASOL).
2. 864. The Government replied in a communication dated 13 August 2012.
3. 865. Lebanon has ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). It has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), nor the Labour Relations (Public Service) Convention, 1978 (No. 151).

A. The complainant’s allegations

1. 866. In a communication dated 28 May 2012, FENASOL alleges that as a result of the denial of trade union protection to public sector employees, and the imposition of legal restrictions on other categories of workers (especially those outside the scope of the Labour Act), the representative character and the structure of the Lebanese trade union movement have been seriously undermined, and its ability to defend the interests of the workers and to engage in an effective and constructive social dialogue has been impaired.
2. 867. More specifically, FENASOL alleges that in several respects national legislation is not in conformity with the principles of freedom of association. According to FENASOL, a Decree of 1959 provides that public sector employees do not have the right to join workers’ organizations, to go on strike or encourage others to strike. FENASOL explains that this Decree was amended in 1992 to provide that public sector employees may join political parties or associations, as long as they do not hold leadership positions in them. FENASOL further denounces that the legislation contains obstacles to the establishment of independent trade unions in the private sector. For example, according to FENASOL: (1) several categories of workers (including domestic workers, agricultural workers and contract workers in public administration) are excluded from the scope of the Labour Act (article 7); (2) the Government has the power to authorize or to refuse the establishment of a trade union, after consulting the Ministry of Interior (sections 86 and 87 of the Labour Act); (3) the Government is entitled to dissolve a trade union and to dismiss its executive committee; and (4) the internal rules of trade unions have to be approved by the Ministry of Labour, which also has the right to decide on the date of trade union elections and to amend collective agreements.
3. 868. FENASOL also states that according to the provisions of the Labour Act, which the Government is refusing to amend, permission to establish a trade union has been granted in an arbitrary fashion, and the trade union movement has been weakened by the fact that there are trade unions serving the authorities. To illustrate this situation, FENASOL refers to recent negotiations on wage adjustments and the minimum wage, in which the workers most affected, those in the public sector, have not been consulted. FENASOL objects to the fact that the General Confederation of Workers of Lebanon (CGTL) – which is designated by the authorities as the most representative workers’ organization – is opposed to the participation of representatives of public sector employees in these negotiations. FENASOL gives information about the procedure for fixing the minimum wage and the cost-of-living index, which is supposed to be based on a review of the relevant data, every two years, in consultation with the workers’ and employers’ organizations (Act No. 36/67); a price index committee has been set up for this purpose. FENASOL alleges that discussions were held, separately from the work of this committee, between the employers’ organizations and the CGTL, and that the agreement which was signed by this means was approved through a government decree (Decree No. 7573), although this is merely a private agreement, as the parties to it had no negotiating mandate. In the opinion of FENASOL, this is an attempt to weaken the trade union movement and to evade the conditions for a constructive social dialogue. FENASOL is calling for genuine workers’ representatives to take part in tripartite talks, and for every decision taken contrary to this principle to be annulled.

B. The Government’s reply

1. 869. In its communication of 13 August 2012, the Government states that: (1) the Labour Act has given the Minister of Labour the power to authorize the establishment of trade unions; (2) neither the Labour Act, nor Decree Law No. 7993 of 1952, contains any provision conferring on the Lebanese Government, as a whole or represented by the Minister of Labour, the right to dissolve a trade union; however, article 105 of the Labour Act provides that the Government has the right to dissolve any trade union committee that has failed to take account of the obligations imposed on it, or has taken action outside its competence; in that case, a new committee must be elected within three months of the dissolution of its predecessor; (3) the Ministry of Labour does not require anyone to join a trade union; on the contrary, it reviews all cases in which an application to join one is refused; (4) the Ministry of Labour has never rejected the internal rules of a trade union; (5) the Ministry of Labour has nothing to do with the time limits for holding trade union elections and does not fix dates for them, trade unions themselves being responsible for this procedure (article 3 of Decree No. 7993); and (6) the Ministry of Labour does not involve itself in the business of a trade union by monitoring elections, but does supervise the electoral process according to the established rules, in order to ensure that elections are properly conducted and to guarantee the freedom to vote and freedom of choice.
2. 870. As for public sector employees, the Government emphasizes that the relationship between a public service official and the administration is a non-contractual one governed by the public service statutes (Legislative Decree No. 112/1959). It states that in 2012 the Ministry of Labour submitted to the Council of Ministers a draft law to authorize ratification of Convention No. 87, according to which public sector employees are allowed to organize.
3. 871. As regards the effective recognition of the right of collective bargaining, the Government explains that the Act on collective employment contracts, mediation and arbitration of 1962 gives trade unions the freedom to negotiate with employers and to sign collective employment contracts, on the understanding that such a contract will only come into force once it has been ratified by the Ministry of Labour following standard procedures. The role of the Ministry of Labour is to take part in the consolidation of social dialogue between the partners, for the purpose of concluding collective employment contracts.
4. 872. With regard to the question of negotiations on raising wages, the Government states that the CGTL comprises over 52 trade unions and is considered to be the most representative organization taking part in the meetings of the price index committee, alongside the employers and the Ministry of Labour. As for an agreement being reached between the CGTL and the employers outside the framework of the committee, the Government explains that Decree No. 4206 of 1981, which defines the tasks of the committee, provides, inter alia, for it to review wages policy and to put forward proposals and recommendations intended to combat the high cost of living and to reduce price rises. Consequently, the signing of the agreement between the CGTL and the employers, and its approval by the Government, took place through the publication of a decree on wage increases, direct negotiations having given workers and employers greater room for manœuvre.

C. The Committee’s conclusions

1. 873. The Committee notes that this case relates to the denial of trade union rights for public sector employees, obstacles to the establishment of independent trade unions in the private sector, and the refusal by the Government to promote inclusive and constructive social dialogue.
2. 874. The Committee notes that in a communication dated 28 May 2012, FENASOL alleges that in several respects national legislation is not in conformity with the principles of freedom association.
3. 875. The Committee notes that FENASOL states, first, that a Decree of 1959 provides that public sector employees do not have the right to join workers’ organizations, go on strike or encourage others to go on strike, and explains that this Decree was amended in 1992 to provide that public sector employees may join political parties or associations on condition that they do not hold leadership positions. The Committee notes the Government’s statement, in that connection, that the relationship between a public service official and the administration is a non-contractual one and is governed by the public service statutes (Legislative Decree No. 112/1959) and further, that in 2012 the Ministry of Labour submitted to the Council of Ministers a draft law to authorize ratification of Convention No. 87, whereby public sector employees are permitted to organize. The Committee welcomes this information and requests the Government to keep it informed of progress in the ratification process. In this context, the Committee emphasizes that it is also essential for the Government to take the necessary steps to bring national legislation into conformity with the provisions of this Convention; the Committee reminds the Government that it may, if it so wishes, benefit from the technical assistance of the Office for this purpose. The Committee requests the Government to keep it informed of any legislative reform, and to take account, in this context, of the recommendations that follow in this regard. The Committee also requests the Government to take the necessary measures without delay to lift the prohibition placed on public sector employees to establish and join organizations of their own choosing, and to allow them to exercise their trade union rights to the full. It requests the Government to keep it informed of developments in this regard.
4. 876. The Committee notes that FENASOL denounces obstacles in the legislation to the establishment of independent trade unions in the private sector, including:
   • – the fact that several categories of workers (such as domestic workers, agricultural workers and contract workers in public administration) are excluded from the scope of the Labour Act (article 7); recalling that workers, without distinction whatsoever, have the right to establish and to join organizations of their choice, the Committee requests the Government to state how the workers excluded from the scope of the Labour Act can enjoy their trade union rights and, if it is found that they cannot, to take all the necessary steps to secure these rights for them;
   • – the Government has the power to permit or refuse to permit the establishment of a trade union, after consulting the Minister of the Interior (sections 86 and 87 of the Labour Act), and the internal rules of trade unions have to be approved by the Minister of Labour; permission to establish a trade union is said to have been granted in an arbitrary fashion, and the trade union movement is reportedly weakened by the existence of trade unions serving the authorities; the Committee notes the Government’s statement, in this regard, that the Labour Act has empowered the Minister of Labour to grant permission for the establishment of trade unions, and that the Ministry of Labour does not require anyone to join a trade union, but does review all cases in which an application to join a union is refused; in this respect, the Committee recalls that the principle of freedom of association would often remain a dead letter if workers and employers were required to obtain any kind of previous authorization to enable them to establish an organization, whether the authorization relates directly to the establishment of the trade union itself, or to the need to obtain discretionary approval of its constitution or rules, or has to be granted before the organization can be established [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 272]; the Committee requests the Government to take the necessary steps to amend sections 86 and 87 in order to secure respect for the principle that workers have the right, without previous authorization, to establish organizations of their choice, and to join such organizations; additionally, while noting the Government’s statement that the Ministry of Labour has never vetoed the internal rules of a trade union, the Committee requests it to take the necessary measures to amend section 89 of the Labour Act (which provides for the internal rules of trade unions to be approved by the Ministry of Labour) in order to secure respect for the above principle, in both law and practice;
   • – the Government has the right to dissolve a trade union, and also its executive committee; the Committee notes the Government’s statement in this regard that neither in the Labour Act nor in Decree Law No. 7993 of 1952 is there any provision giving the Lebanese Government, as a whole or represented by the Minister of Labour, the right to dissolve a trade union, but that section 105 of the Labour Act provides that the Government is entitled to dissolve any trade union committee which has not taken account of the obligations placed on it, or which has taken action beyond its authority; in this regard, the Committee recalls that the Government’s dismissal of certain trade union leaders is a grave infringement of the free exercise of trade union rights, and that freedom of association implies the right of workers and employers to elect their representatives in full freedom [see Digest, op. cit., paras 388 and 444]; the Committee requests the Government to take the necessary steps to amend section 105 in order to ensure that this principle is observed.
5. 877. The Committee also notes FENASOL’s condemnation of the fact that the Minister of Labour has the right to decide on the date of trade union elections; the Committee notes the Government’s statement that the Ministry of Labour has nothing to do with the time limits for holding trade union elections and does not fix the dates for them, which is a matter for the trade unions themselves (article 3 of Decree No. 7993) and that the Ministry of Labour does not involve itself in the business of a trade union as regards the monitoring of elections, but does supervise the electoral process according to the established rules, in order to ensure the proper conduct of the elections and to guarantee the freedom to exercise the right to vote and the right of choice. The Committee recalls that to ensure recognition of the right of workers and employers to elect their representatives in full freedom, it is essential that the public authorities refrain from any intervention which might impair the exercise of this right, whether it be in determining the conditions of eligibility of leaders or in the conduct of the actual elections [see Digest, op. cit., para. 391]. The Committee also recalls that in cases where the results of trade union elections are challenged, such questions must be referred to the judicial authorities in order to guarantee an impartial, objective and expeditious procedure [see Digest, op. cit., para. 442]. The Committee requests the Government to take the necessary measures to guarantee respect for these principles, and to keep it informed of developments in this regard.
6. 878. The Committee also notes FENASOL’s objection to the fact that the CGTL – which is designated by the authorities as the most representative workers’ organization – is opposed to the participation of public sector employees in recent negotiations on wage adjustments and the minimum wage, although they are the workers most affected. The Committee notes the Government’s statement that the CGTL comprises over 52 trade unions, and that it is considered to be the most representative organization taking part, in the context of these negotiations, in the meetings of the price index committee, alongside the employers and the Ministry of Labour. As concerns, more specifically, the allegations by FENASOL that discussions took place, outside the framework of the price index committee, between the employers’ organizations and the CGTL, and that the agreement which was signed in this context was endorsed by a government decree (Decree No. 7573), although it is only a private agreement since the parties to it had no mandate to negotiate, the Committee notes the contrary view of the Government that it was giving priority to direct negotiations between workers and employers by ratifying the agreement which had been signed in this manner. FENASOL, however, considers that the adoption of Decree No. 7573 is actually an attempt to weaken the trade union movement and to evade the conditions for a constructive social dialogue. FENASOL is calling for genuine workers’ representatives to take part in tripartite talks, and for any decision taken contrary to this principle to be annulled. In this regard, the Committee recalls that collective bargaining systems which give exclusive rights to the most representative trade union, and systems that enable several trade unions in an enterprise to conclude collective agreements, are both compatible with the principles of trade union freedom, and that wherever the most representative trade union has preferential or exclusive bargaining rights under the systems in force, the trade union in question should be decided upon according to objective pre-established criteria, so as to avoid any opportunity for partiality or abuse [see Digest, op. cit., paras 950 and 962]. The Committee requests the Government to specify which objective pre-established criteria enables it to determine which is the most representative organization, and if no such criteria exist, to take the necessary measures to define them, in full consultation with the social partners concerned.
7. 879. Finally, the Committee notes the Government’s statement that the Act on collective employment contracts, mediation and arbitration of 1962, gives trade unions the freedom to negotiate with employers and to sign collective employment contracts, on the understanding that the contract will only come into force when it has been ratified by the Ministry of Labour according to the standard procedure. Having regard to the national circumstances, the Committee recalls that making the validity of collective agreements signed by the parties subject to the approval of these agreements by the authorities is contrary to the principles of collective bargaining and of Convention No. 98 [see Digest, op. cit., para. 1012]. The Committee requests the Government to secure respect for free and voluntary collective bargaining between the parties, including where necessary by amending the legislation to remove the need for previous approval by the Government for the entry into force of a collective agreement.

The Committee’s recommendations

1. 880. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee, welcoming the information that in 2012 the Ministry of Labour submitted to the Council of Ministers a draft law to authorize ratification of Convention No. 87, requests the Government to keep it informed of progress in the ratification process. In this context, the Committee emphasizes that it is also important that the Government take the necessary steps to bring national legislation into conformity with the provisions of the Convention; the Committee reminds the Government that it may, if it so wishes, benefit from the technical assistance of the office for this purpose. The Committee requests the Government to keep it informed of any legislative reform, and to take account, in this connection, of the recommendations it is making below in this regard.
   • (b) The Committee requests the Government to take the necessary measures without delay to lift the prohibition placed on public sector employees to establish and join organizations of their own choosing, and to enable them to exercise their trade union rights to the full. The Committee requests the Government to keep it informed of developments in this regard.
   • (c) Recalling that workers, without distinction whatsoever, have the right to establish and to join organizations of their choosing, the Committee requests the Government to state in what way workers who are excluded from the scope of the Labour Act (especially domestic workers, workers in the agricultural sector and contract workers in public administration) can enjoy their trade union rights and, if it is found that they cannot, to take the necessary measures to secure these rights for them.
   • (d) The Committee requests the Government to take the necessary measures to amend sections 86 and 87 of the Labour Act in order to secure respect for the principle that workers have the right, without previous authorization, to establish and to join organizations of their choosing; moreover, while noting the Government’s statement that the Ministry of Labour has never rejected the internal rules of a trade union, the Committee requests it to take the necessary measures to amend section 89 of the Labour Act (which provides for the internal rules of trade unions to be approved by the Ministry of Labour) in order to guarantee respect for this principle, both in law and in practice.
   • (e) Recalling that the dismissal by the Government of certain trade union leaders is a serious infringement of the free exercise of trade union rights, and that freedom of association implies the right of workers and employers to elect their representatives in full freedom, the Committee requests the Government to take the necessary measures to amend section 105 of the Labour Act in order to guarantee respect for this principle.
   • (f) Recalling that, for the right of workers and employers to elect their representatives in full freedom to be fully recognized, it is essential that the public authorities refrain from any intervention which may impair the exercise of this right, whether it be in determining conditions for the eligibility of trade union leaders or in the conduct of the elections themselves, and that cases in which the results of trade union elections are challenged must be referred to the judicial authorities in order to guarantee an impartial, objective and expeditious procedure, the Committee requests the Government to take the necessary measures to secure respect for these principles and to keep it informed of all developments in this regard.
   • (g) The Committee requests the Government to state which objective pre established criteria make it possible to determine which organization is the most representative and, if no such criteria exist, to take the necessary steps to define them, in full consultation with the social partners concerned.
   • (h) The Committee requests the Government to guarantee respect for free and voluntary collective bargaining between the parties including, where appropriate, by amending the legislation to remove the need for previous approval by the Government in order for a collective agreement to enter into force.