Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Yemen (Ratification: 1976)

The Committee notes the comments submitted by the International Trade Union Confederation (ITUC) in its communication dated 29 August 2008 referring to the issues pending before the Committee.

The Law on Trade Unions (2002). The Committee had previously raised a number of points in respect of the Law on Trade Unions. In the absence of the Government’s reply thereon, the Committee must once again bring the Government’s attention to the following issues.

Article 2 of the Convention.

–      Exclusion from the scope of the Law of employees of high-level public authorities and Cabinets of Ministers (section 4). Considering that senior public officials should be entitled to establish their own organizations and that the legislation should limit this category to persons exercising senior managerial or policy-making responsibilities (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 57), the Committee requests the Government to indicate whether the persons referred to in section 4 of the Law enjoy the right to establish and join trade unions.

–      The reference to the General Federation of Trade Unions of Yemen (GFTUY) made in sections 2 (definition of “General Federation”), 20 and 21, could result in making it impossible to establish a second federation to represent workers’ interests. The Committee considers that unification of the trade union movement imposed through state intervention by legislative means runs counter to the principle embodied in Articles 2 and 11 of the Convention. The Committee therefore requests the Government to amend the Law on Trade Union so as to repeal specific reference to the GFTUY and to indicate the measures taken or envisaged in this respect.

Article 3.

–      Section 40(b) provides that a trade union organization can organize a strike in coordination with a trade union organization of the highest level. The Committee considers that a legislative provision which requires that a decision by the first-level trade union to call a strike at the local level should be approved by a higher level trade union body is not in conformity with the right of trade unions to organize their activities and to formulate their programmes. The Committee requests the Government to clarify whether, section 40(b) requires an authorization from the higher level trade union for a strike to be organized and if that is the case, to take the necessary measures in order to amend the legislation so as to bring it into conformity with the Convention.

The draft Labour Code. The Committee recalls that in its previous observations it had noted that a draft Labour Code was under discussion and that several of its provisions were not in conformity with the Convention. In this respect, the Committee notes the Government’s indication that the observations of the General Federation of Workers’ Trade Unions of Yemen and the Employers’ representatives, the ILO and the Committee of Experts have been taken into consideration and that following discussions with the social partners, the draft Code has been approved and referred to the Ministry of Legal Affairs. The Committee notes with interest the Government’s indication that the draft Code will not be adopted unless the amendments requested by the Committee and the interested parties have been made and the approval of the social partners has been obtained.

The Committee recalls that its previous comments on the draft Labour Code concerned the following issues:

Article 2 of the Convention. The Committee recalls that in its previous observation, it had requested the Government to ensure that domestic workers, the magistracy and the diplomatic corps, excluded from the draft Labour Code (section 3B(2) and (4)), may fully benefit from the rights set out in the Convention and to transmit the texts of any legislation or regulations ensuring their right to organize. The Committee had further requested the Government to consider revising section 173(2) of the draft Code so to ensure that minors between the ages of 16 and 18 may join trade unions without parental authorization and noted with interest the Government’s intention to do so. The Committee notes the Government’s indication that the Committee’s observations with regard to sections 3B and 173(2) of the draft Code have been taken into consideration. The Committee requests the Government to indicate any developments in this respect.

In its previous comments, the Committee had noted the Government’s indication that foreign persons holding diplomatic passports and those working in Yemen on the basis of political visas were excluded from the scope of the draft Code under section 3B(6) and that this category of workers was covered by the specific legislation, regulations and agreements on reciprocal treatment. The Committee had therefore requested the Government to indicate whether this category of foreign workers could in practice establish and join organizations of their own choosing. In the light that no new information was provided by the Government, the Committee reiterates its previous request.

Article 3. With regard to the Committee’s previous request to provide a list of essential services referred to in section 219(3) of the draft Code, which empowers the Minister to submit disputes to compulsory arbitration, the Committee once again notes the Government’s indication that the Council of Ministers will issue such a list once the Labour Code is promulgated. The Committee requests the Government to indicate any developments in this respect.

Concerning section 211 of the draft Labour Code, which provides that strike notice must include an indication as to the duration of a strike, the Committee notes that the Government reiterates that it is willing to take into account the previous observation of the Committee to the effect that such a requirement unduly restricts the effectiveness of an essential means for furthering and defending workers’ occupational interests. It requests the Government to indicate any progress made in this regard.

Articles 5 and 6. The Committee had previously noted that section 172 of the draft Labour Code would appear to prohibit the right of workers’ organizations to affiliate with international workers’ organizations and that the Government had concurred that this section contradicted section 66 of the Law on Trade Unions, which ensures the right to affiliate with international organizations and the current practice. The Committee therefore expressed trust that the Government would take the necessary measures to withdraw section 172 from the draft Labour Code. The Committee notes the Government’s indication referring to the Law on Trade Unions which allows workers’ organizations to affiliate with the Arab, regional and international trade union federations and to contribute to their establishment. According to the Government, this Law leaves no room for any other text that might contradict its provisions. The Committee therefore once again trusts that section 172 will be withdrawn from the draft Labour Code and requests the Government to keep it informed in this respect.

The Committee expresses the hope that the present legislative reform will bring the national legislation into full conformity with the Convention, in accordance with the comments above, and requests the Government to indicate any development in this regard.