Report in which the committee requests to be kept informed of development - Report No 349, March 2008

Case No 2552 (Bahrain) - Complaint date: 22-FEB-07 - Closed

Allegations: The complainant organization alleges that the newly adopted amendments to the Trade Union Law and a Decision of the Prime Minister as regards essential services are contrary to the principles concerning the right to strike

1. 408. The complaint is contained in a communication of 22 February 2007. The International Confederation of Arab Trade Unions submitted additional information in support of the complaint in a communication of 28 October 2007.
2. 409. The Government submitted its observations in a communication of 13 August 2007.
3. 410. Bahrain has not ratified either the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), or the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 411. In its communication of 22 February 2007, the complainant states that Legislative Decree No. 33 of 2002 on the Trade Union Law was promulgated following negotiations and consultations between trade union organizations and the Government. Section 21(e) of the said Law set forth the following essential services in which strike action was prohibited: security services, civil defence, airports, ports, hospitals, transport, telecommunications, electricity and water services. The complainant states that it had expressed reservations concerning section 21’s blanket prohibition on strikes in these services, as it did not distinguish between sensitive and non-sensitive departments within these sectors.
2. 412. The complainant indicates that Law No. 49 of 2006 amending certain provisions of the Trade Union Law was subsequently adopted. Section 21(d) of the Trade Union Law, as amended by Law No. 49, “prohibits strikes in essential services which may disturb national security or disrupt the daily life of citizens. The Prime Minister shall issue a decision setting out those essential services where strikes are prohibited”. The complainant further states that on 20 November 2006 the Prime Minister issued Decision No. 62, which listed the following as essential services where strike action was prohibited: security services, civil defence, airports, ports, hospitals, medical centres and pharmacies, all means of transport of persons or goods, telecommunications, electricity and water services, bakeries, educational institutions, and oil and gas installations.
3. 413. The complainant alleges that, in leaving the naming of sectors where strike action is prohibited to the Prime Minister’s discretion, Law No. 49 of 2006 represents a diminution of workers’ rights. It further states that Decision No. 62 of the Prime Minister includes as essential services certain establishments that are outside the scope of essential services in which strikes may be banned, as defined by international labour standards. Finally, a copy of Law No. 49 of 2006 is attached to the complaint.
4. 414. In its communication of 28 October 2007, the International Confederation of Arab Trade Unions alleges that the Government restricts the right to strike in 17 sectors, in violation of international labour standards.

B. The Government’s reply

1. 415. In its communication of 13 August 2007, the Government states that the ILO has not adopted any international labour standards regulating the right to strike. The sole Convention referring to this right remains the International Covenant on Economic, Social and Cultural Rights (ICESCR) of 1966, Article 8 of which sets forth the right to strike, provided that it is exercised in conformity with the laws of the particular country. The ICESCR, the Government adds, also reserves for each nation the right to regulate the manner in which the right to strike is exercised.
2. 416. According to the Government, the ILO’s Committee on Freedom of Association has indicated on several occasions that each country has the right to regulate the right to strike, as well as to prohibit its exercise in sectors deemed to be essential services, the interruption of which would lead to the disruption of everyday life for all or a certain part of the population. It was precisely on this principle that the Bahraini legislature drafted section 21 of the Trade Union Law, as amended by Law No. 49 of 2006. Section 21 lays down a general definition of essential services, in which strikes are prohibited, while leaving to the Prime Minister the power to specify those services considered to be essential in order to make modifications, as need be, and so avoid the difficulties and delays associated with amending the law.
3. 417. The Government indicates that the definition of essential services applied in the Prime Minister’s Decision No. 62 of 2006 is identical to that contained in the Trade Union Law, regardless of whether the services concerned are Arab or foreign owned. The definition of essential services utilized takes into consideration the imperative of allowing essential services to continue to be provided to the population. Decision No. 62 of 2006 also includes the same essential services as those set out in section 21 of the Trade Union Law before its modification by Law No. 49 of 2006 – which had included educational institutions and the gas and petroleum sectors. In respect of these latter services, the Government contends that it is unreasonable to permit strikes in educational institutions, as the programmes therein are administered within a time-bound framework, thus rendering compensation for those days lost to strikes difficult. Strikes in the petroleum and gas sectors are also not permissible, as these two industries constitute a principal source of national revenue, and are similarly prohibited in the transportation sector, in view of this sector’s importance to the functioning of many other sectors of the economy. The Government states that the definition of these services as essential takes into consideration the general interests of the population.
4. 418. The Government states that, although the legislature has prohibited strikes in those services deemed to be essential, in conformity with international labour standards it has provided for recourse to conciliation and arbitration in case of collective disputes arising in essential services. The mechanisms established by the legislature to dispose of collective disputes, such as conciliation and arbitration proceedings, often dissuade workers from resorting to strikes. Finally, the Government indicates that the list of essential services specified in Decision No. 62 of 2006 is not a definitive one, but may be modified should changes in the existing circumstances so permit.

C. The Committee’s conclusions

1. 419. The Committee notes that the present case concerns legislation and a Ministerial Decision setting out essential services in which the right to strike is prohibited. Noting the Government’s contention that no international labour standards provide for the exercise of the right to strike, the Committee wishes to first clarify that it has always recognized the right to strike by workers and their organizations as a legitimate means of defending their economic and social interests. The right to strike, furthermore, is an intrinsic corollary to the right to organize protected by Convention No. 87 [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, paras 521 and 523].
2. 420. The Committee notes that section 21 of the Trade Union Law promulgated by Legislative Decree No. 33 of 2002, as amended by Law No. 49 of 2006, prohibits strikes in essential services – defined as those services which may disturb national security or disrupt the daily life of citizens – and provides that the Prime Minister shall issue a decision setting out those essential services where strikes are prohibited. The Committee further notes, from the information at its disposal, that the Prime Minister’s Decision No. 62 of 2006 lists the following as essential services where strike action is prohibited: security services, civil defence, airports, ports, hospitals, medical centres and pharmacies, all means of transport of persons or goods, telecommunications, electricity and water services, bakeries, educational institutions, and the petroleum and gas sectors.
3. 421. In respect of essential services, the Committee first recalls that the right to strike may be restricted or prohibited: (1) in the public service only for public servants exercising authority in the name of the State; or (2) in essential services in the strict sense of the term (that is, services the interruption of which would endanger the life, personal safety, or health of the whole or part of the population) [see Digest, op. cit., para. 576]. Moreover, to determine situations in which a strike could be prohibited, the criterion that has to be established is the existence of a clear and imminent threat to the life, personal safety, or health of the whole or part of the population [see Digest, op. cit., para. 581]. In these circumstances, the Committee, while noting the Government’s indication that the definition of essential services provided for in its legislation is based on the consideration of the general interests of the population, nevertheless considers that the definition set out in section 21 is broader than the definition of essential services in the strict sense of the term. Furthermore, where the right to strike is restricted or prohibited in certain essential undertakings or services, adequate protection should be given to the workers to compensate them for the limitation thereby placed on their freedom of action with regard to disputes affecting such undertakings and services. As regards the nature of appropriate guarantees in cases where restrictions are placed on the right to strike in essential services and the public service, restrictions on the right to strike should be accompanied by adequate, impartial and speedy conciliation and arbitration proceedings in which the parties concerned can take part at every stage and in which the awards, once made, are fully and promptly implemented [see Digest, op. cit., paras 595 and 596]. The Committee therefore requests the Government to take the necessary measures to amend section 21 of the Trade Union Law so as to limit the definition of essential services to essential services in the strict sense of the term – that is, services the interruption of which would endanger the life, personal safety, or health of the whole or part of the population – and to ensure that workers in services where the right to strike is restricted or prohibited are afforded sufficient compensatory guarantees. The Committee requests the Government to keep it informed of the steps taken in this regard.
4. 422. As concerns the list of essential services set out in Decision No. 62 of 2006, the Committee recalls that the police and armed forces, public or private prison services, air traffic control, the hospital sector, the telephone service and electricity and water supply services may be considered to be essential services [see Digest, op. cit., para. 585]. The Committee has also indicated that what is meant by essential services in the strict sense of the term depends to a large extent on the particular circumstances prevailing in a country. Moreover, this concept is not absolute, in the sense that a non-essential service may become essential if a strike lasts beyond a certain time or extends beyond a certain scope, thus endangering the life, personal safety or health of the whole or part of the population [see Digest, op. cit., para. 582]. These conditions do not appear to have been met in this specific case. The Committee therefore considers that the following sectors set out in Decision No. 62 do not constitute essential services in the strict sense of the term: private security services generally (with the exception of public or private prison services), airports (with the exception of air traffic control), ports, general transport, pharmacies, bakeries, educational institutions and the petroleum and gas sectors (see also Digest, op. cit., para. 587). In respect of some of these services, however, the Committee wishes to point out that a minimum service may be set up in the event of a strike, the extent and duration of which might be such as to result in an acute national crisis endangering the normal living conditions of the whole or part of the population; in addition, workers’ organizations should be able to participate in defining such a service in the same way as employers and the public authorities [see Digest, op. cit., para. 610]. In the light of the above principles, the Committee requests the Government to take the necessary measures to modify the list of essential services set out in Decision No. 62 of 2006 so that it includes only essential services in the strict sense of the term.
5. 423. The Committee further expresses its concern at the overall authority given to the Prime Minister to add to the list of essential services at any time and without any obligation to consult the social partners concerned. The Committee equally requests that measures be taken to ensure that any determination of new essential services be made in full consultation with the representative workers’ and employers’ organizations and in accordance with principles of freedom of association. The Committee requests the Government to keep it informed of developments in this regard and, should a new decision of the Prime Minister setting out essential services be issued, to provide it with a copy of the same.

The Committee's recommendations

1. 424. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee reminds the Government that it has always recognized the right to strike by workers and their organizations as a legitimate means of defending their economic and social interests and as an intrinsic corollary to the right to organize.
   • (b) The Committee requests the Government to take the necessary measures to amend section 21 of the Trade Union Law so as to limit the definition of essential services to essential services in the strict sense of the term – that is, services the interruption of which would endanger the life, personal safety, or health of the whole or part of the population – and to ensure that workers in services where the right to strike is restricted or prohibited are afforded sufficient compensatory guarantees. The Committee requests the Government to keep it informed of the steps taken in this regard.
   • (c) The Committee requests the Government to take the necessary measures to modify the list of essential services set out in the Prime Minister’s Decision No. 62 of 2006 so that it includes only essential services in the strict sense of the term. With respect to services that are not essential in the strict sense of the term, but where the extent and duration of a strike might be such as to result in an acute national crisis endangering the normal living conditions of the population, the Committee points out that the Government may consider setting up a minimum service, with the participation of workers’ organizations and employers in defining such a service.
   • (d) The Committee requests the Government to take measures to ensure that any determination of new essential services be made in full consultation with the representative workers’ and employers’ organizations and in accordance with the principles of freedom of association. The Committee also requests the Government to keep it informed of developments in this regard and, should a new decision of the Prime Minister setting out essential services be issued, to provide it with a copy of the same.