Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

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 24 August 2010 referring mostly to issues already raised by the Committee as well as violations of trade union rights of foreign workers and the cancellation of the registration of a trade union in the transport sector. The Committee requests the Government to provide its observations thereon.

Article 2 of the Convention. The Law on Trade Unions (2002). In its previous comments, the Committee had indicated that the reference to the General Federation of Trade Unions of Yemen (GFTUY) made in sections 2 (definition of “General Federation”), 20 and 21, indicating that “All the general trade unions establish a General Federation entitled the General Federation of Trade Unions of Yemen” could result in making it impossible to establish a second federation to represent workers’ interests. The Committee notes that the Government indicates in its report that: (i) it has never imposed any prohibition on trade-union activities; (ii) the law does not stipulate that affiliation to GFTUY is obligatory and there are many other general trade unions which are not in this federation, such as the Trade Union of Doctors, Trade Union of Pharmacists, Education Professions’ Trade Unions, Journalists’ Trade Union and Lawyers’ Trade Union; (iii) there is no monopoly in representation since, in the framework of social dialogue, the interlocutor is the most representative trade union; and (iv) at the moment, the GFTUY is the most representative association of workers. While noting that the Government does not refer to the possibility of the general trade unions to form a federation different than the GFTUY, the Committee recalls 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. In these circumstances, the Committee once again requests the Government to take the necessary measures to amend the Law on Trade Union so as to repeal specific reference to the GFTUY, allowing workers and their organizations to establish and join the federation of their own choosing and to indicate the measures taken or envisaged in this regard in its next report.

Furthermore, the Committee had noted the exclusion from the scope of the Law of employees of high-level public authorities and Cabinets of Ministers (section 4). The Committee had recalled 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), and had requested the Government to indicate whether the categories of workers referred to in section 4 of the Law enjoy the right to establish and join trade unions. In the absence of the Government’s reply thereon, the Committee must once again reiterate the abovementioned request.

Article 3. In its previous comments, the Committee had noted that 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 had recalled 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 had requested 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. In the absence of the Government’s reply thereon, the Committee must once again reiterate the abovementioned request.

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. The Committee notes the Government’s indication that with the active participation of the ILO, it is working on the enactment of the new Labour Code and that the draft Code has been referred to the Ministry of Legal Affairs, and will consequently be referred by the Ministry of Social Affairs and Labour to the Council of Ministers and afterwards to Parliament.

In this respect, the Committee must once again recall its comments concerning the draft Labour Code which read as follows:

Article 2 of the Convention. The Committee recalled that in its previous observation, it had requested the Government to ensure that domestic workers, the magistracy and the diplomatic corporations, 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 had noted that the Government, in its previous report, indicated 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 had noted 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 had noted 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 the hope that the Government would take the necessary measures to withdraw section 172 from the draft Labour Code. The Committee had noted 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 expresses the firm hope that section 172 will be withdrawn from the draft Labour Code and requests the Government to keep it informed in this respect.

The Committee trusts that the present legislative reform will bring the national legislation into full conformity with the Convention, in accordance with the comments abovementioned, and once again requests the Government to indicate any development in this regard in its next report.