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

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Iraq (Ratification: 1962)

The Committee notes the comments made by the International Trade Union Confederation (ITUC) in a communication dated 4 August 2011, which refers to matters previously raised by the Committee, as well as to an order issued by the Ministry of Electricity on 20 July 2010 to prohibit trade union activities of the Electricity Workers’ Union, close all its offices, and take control of the union’s assets and properties following protests in June which were supported by the Union before being violently put down by the police. The Committee requests the Government to provide its observations thereon.

Violence against trade unionists. Previously the Committee, noting the ITUC’s 2008 and 2009 comments on the persistence of serious violations of freedom of association, had requested the Government to provide information on the ITUC’s allegations of arrests, detentions and acts of violence committed against trade unionists. The Committee notes that the Government reiterates in general terms in its report that there are no violations of trade union freedoms; that trade unionists have never been threatened by a government authority and that, despite the tremendous efforts of the security authorities to protect the population, all citizens are exposed to threats of violence and not only trade unionists. The Committee has stressed on many occasions the interdependence between civil liberties and trade union rights, emphasizing that a truly free and independent trade union movement can only develop in a climate of respect for fundamental human rights (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 26) and that the exercise of freedom of association is not compatible with a climate of violence, pressure, fear and threats. The Committee once again expresses the firm hope that it will be possible in the near future for trade union rights and the right to collective bargaining to be exercised normally and in observance of fundamental rights, and in a climate free from violence, duress, fear and any kind of threat.

Articles 1, 3 and 4 of the Convention. The Committee had previously noted that, according to the Government, a draft Labour Code had been referred to the Consultative Council (Majlis Al-Shura) so that Parliament could examine and adopt the said legislation. The Committee notes that the Government indicates that the new Labour Code is still in draft form and under discussion and shall be reviewed during the different phases of its preparation.

The Committee observes that revised versions of the draft Labour Code were prepared in 2010 and 2011 and takes note of the ILO assistance provided to the Government. The Committee further notes that the rewording of some provisions concerning trade unions has been recommended by the State Council and that all provisions related to trade unions were removed from the 2011 draft Labour Code in order to be included in a special law on trade unions. Taking note of section 22(3) of the Iraqi Constitution which provides that “the State shall guarantee the right to form and join unions and professional associations, and this shall be regulated by law”, the Committee recalls the necessity to complete as soon as possible the ongoing process in order to ensure effective respect for the right to organize and collective bargaining. The Committee also recalls that employers’ organizations should be granted the same rights as workers’ organizations in the legislation. Noting the information provided by the Government, the Committee expresses the firm hope that the ongoing legislative reform will take into account all comments made in previous observations and will soon be completed in full conformity with the Convention. The Committee requests the Government to provide in its next report information on progress made in this respect.

Anti-union discrimination. In its previous observation, the Committee had noted that the guarantees laid down in the draft Labour Code for protection against acts of anti-union discrimination applied to trade union founders and chairpersons and to trade union officers but not to trade union members; nor did the draft establish adequate guarantees against discrimination at the time of recruitment. The Committee also noted that, although it covered anti-union dismissals, the draft did not address other adverse measures affecting trade union membership or activities. The Committee had pointed out that protection against acts of anti-union discrimination must apply to trade union members as well as union officers, and must cover not only dismissal but any other measure amounting to anti-union discrimination (transfer, demotion and other measures that have adverse effects). Furthermore, the protection provided for by the Convention applied upon recruitment, in the course of employment and at the time of separation. The Committee had also recalled that general provisions of the law prohibiting acts of anti-union discrimination were not enough if they were not accompanied by effective and rapid procedures to ensure their application in practice; protection against acts of anti-union discrimination should therefore be ensured by various means adapted to national law and practice that prevent or effectively redress such acts, in particular through sufficiently dissuasive sanctions. The Committee had previously noted with interest the Government’s statement that its comments concerning adequate protection against acts of anti-union discrimination had been addressed in the draft Labour Code’s chapter concerning trade union organizations. While noting that provisions concerning trade unions have been removed from the 2011 draft and will be reviewed either in the ongoing legislative reform of the Labour Code or in the framework of a future special law on trade unions, the Committee requests once again the Government to take the necessary steps to ensure adequate protection for members of trade unions and trade union officers against acts of anti-union discrimination in accordance with the principles noted above.

Recognition of trade unions for the purposes of collective bargaining. Previously the Committee had noted that section 142 of the draft Labour Code established a duty to bargain in good faith when a request to open collective negotiations had been submitted by a registered union representing no less than 50 per cent of the workers employed at the establishment or enterprise, or where such a request had been submitted jointly by several registered unions representing no less than 50 per cent of the workers to whom the collective agreement was to apply. The Committee had pointed out that problems may arise where it was established by law that a trade union must receive the support of 50 per cent of the members of a bargaining unit to be recognized as a bargaining agent: a union that would fail to secure this absolute majority would thus be denied the possibility of bargaining. The Committee had underlined that if no union – or group of unions, as provided for in section 142 – covered more than 50 per cent of the workers, collective bargaining rights should not be denied to the unions in the unit concerned, at least on behalf of their own members, and had requested the Government to take the necessary steps to amend section 142 of the draft Labour Code accordingly. The Committee had noted with interest the Government’s statement that section 142 of the draft Labour Code had been amended to bring it into conformity with the Convention and that a new section 143 had been included to address the Committee’s comments on minimum membership requirements for the acquisition of bargaining agent status.

The Committee notes that the Government does not provide specific information in this respect in its report but indicates that the new Labour Code is still in draft form and consequently may be re-examined during the legislative process. The Committee reiterates its previous comments and expects that the future Labour Code will be in full conformity with the principles above.

Article 4. Promotion of collective bargaining. The Committee had previously referred to the absence, in Act No. 52 of 1987 on trade union organizations, of any provisions to promote collective bargaining and thus give effect to Article 4 of the Convention. The Government had indicated in this regard that the draft Labour Code would provide for the repeal of Act No. 52 of 1987 on trade union organizations. The Government had further stated that section 147 of the draft Labour Code defined a collective labour contract as an agreement between the trade union, on behalf of the workers of the occupations and industries it represents, and the employers concerned. The Committee had requested the Government to confirm whether collective bargaining at the enterprise level was also recognized in the draft Labour Code and had further invited the Government to take appropriate measures to promote collective bargaining, through publications, seminars and other activities designed to increase awareness of its utility.

The Committee notes that the Government confirms in its report that, under the draft Labour Code, collective bargaining at the enterprise level is also recognized for all workers covered by the provisions of the Labour Code. The Government further indicates that the promotion of collective bargaining will be done after the adoption of the Code when a wide mass media campaign will be launched to make the public aware of the Labour Code. The Committee takes note of this information and invites the Government to start promoting collective bargaining without waiting for the adoption of the Code. It requests the Government to send information on developments in this respect in its next report.

Articles 1, 4 and 6. The Committee had been noting for many years that Act No. 150 of 1987 on public servants, which the Government was planning to repeal, contained no provisions affording the guarantees established in the Convention to public servants and public sector employees not engaged in the administration of the State, and had further observed that the draft Labour Code excluded employees of the public service from its scope. The Committee had previously noted that the Government, in consultation with the social partners and experts from the Office, was drafting a recommendation with a view to including in the new Labour Code provisions on the trade union rights of public sector workers, which would give them the rights provided for in Articles 1, 3 and 6 of the Convention. The Committee previously noted with interest the Government’s indication that the draft Labour Code would repeal Act No. 150 of 1987 on public servants, so that public servants would be covered by its provisions.

The Committee notes that the Government reiterates that section 155 of the new draft Labour Code provides for the repeal of Act No. 150 of 1987. The Committee takes note that section 3 of the draft Labour Code specifies that its provisions apply to “workers recruited in the staff of workers in government departments and public sector”, “contractual workers with government departments and public sector” but excludes “employees of governmental departments and public sector”. The Committee requests the Government to take measures to amend this provision in order to fully guarantee to all public servants not engaged in the administration of the State the rights enshrined in the Convention. The Committee underlines that the right to organize, which is a preliminary condition for the development of collective bargaining, is applicable to all public servants with the sole possible exception of the armed forces and the police. In this connection, the Committee notes with concern that, according to the ITUC comments, public sector workers are banned from trade unions and oil unions are technically illegal in Iraq. The Committee hopes that the abovementioned fundamental rights at work will be recognized for public sector workers in the very near future.

Trade union monopoly and interference in trade union activities. The Committee had previously noted that the Trade Union Organization Act No. 52 of 1987, while not applied anymore, established a de facto monopoly of the Confederation of Iraqi Workers’ Unions by forbidding the establishment of other unions or federations, and that decision No. 8750 of 2005 had been used by the Government to freeze the assets of trade unions. Taking into account that texts which have not yet been formally repealed such as Decision No. 8750 can generate uncertainty in law and hinder the development of collective bargaining within the meaning of the Convention and of other trade union activities, the Committee had trusted the Government to formally repeal Act No. 52 and Decision No. 8750. In this regard, the Committee previously noted the Government’s indication that the draft Labour Code would repeal this Act, and that the repeal of the decision would be considered once workers’ elections have been held and the financial liability for keeping the assets of the Confederation defined.

The Committee notes that the Government indicates in its report that after the changes which were made, and as a result of the developments made in respect of rights and freedoms in Iraq, it would re-examine the Trade Union Organization Act No. 52 and Decision No. 8750, as well as other decisions which conflict with trade union rights and freedoms. The Committee observes however that the 2011 draft Labour Code does not provide for the repeal of Act No. 52, whereas the 2010 draft Labour Code expressly did so in section 168. In these circumstances, the Committee requests once again the Government to urgently take the necessary measures to repeal Act No. 52 as well as Decision No. 8750 of 2005 so as to ensure trade union multiplicity, and requests the Government to indicate in its next report any developments in this regard.