Observation (CEACR) - adoptée 2021, publiée 110ème session CIT (2022)

Convention (n° 98) sur le droit d'organisation et de négociation collective, 1949 - Iraq (Ratification: 1962)

The Committee notes the observations of the General Federation of Iraqi Trade Unions (GFITU), received on 28 August 2019 and 20 October 2020, as well as the joint observations of the GFITU, the Conference of Iraq Federations and Workers Unions (CIFWU), the Federation of Independent Trade and Professional Unions in Iraq (FITPUI), the Federation of Workers’ Councils and Unions in Iraq (FWCUI), the General Federation of Trade Unions and Employees of Iraq (GFTUEI), the General Federation of Trade Unions of the Republic of Iraq (GFTURI), the General Federation of Workers Unions in Iraq (GFWUI), the Iraqi Federation of Oil Unions (IFOU), and the Union of Technical Engineering Professionals (UTEP), received on 17 September 2020. The Committee further notes the Government’s reply to these observations. The above observations, the content of which concerns mainly the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), are thus treated under Convention No. 87.

Trade union monopoly. The Committee previously recalled the need to remove any obstacles to trade union pluralism and noted with interest the Government’s indication that Government Decision No. 8750 of 2005 had been repealed. It requested the Government to take the necessary measures to repeal the Trade Union Organization Act No. 52 of 1987. The Committee is examining the information provided in this respect under its comments concerning Convention No. 87.

Scope of the Convention. The Committee previously requested the Government to ensure that the rights in the Convention were applicable to all public servants not engaged in the administration of the State. It notes that section 3 of the Labour Code stipulates that its provisions do not apply to “public officials appointed in accordance with the Civil Service Law or a special legal text” and “members of the armed forces, the police and the internal security forces”. The Committee recalls that the Convention covers all workers and employers, and their respective organizations, in both the private and the public sectors, regardless of whether the service is essential, and that the only exceptions authorized concern the armed forces and the police, as well as public servants engaged in the administration of the State. It further recalls that a distinction must therefore be drawn between, on the one hand, public servants who by their functions are directly employed in the administration of the State (for example, in some countries, civil servants in government ministries and other comparable bodies, and ancillary staff), who may be excluded from the scope of the Convention and, on the other hand, all other persons employed by the Government, by public enterprises or by autonomous public institutions, who should benefit from the guarantees provided for in the Convention. This second category of public employees includes, for instance, employees in public enterprises, municipal employees and those in decentralized entities, public sector teachers, as well as air transport personnel, whether or not they are considered in national law as belonging to the category of public servants (see 2012 General Survey on the fundamental Conventions, paragraphs 168 and 172). The Committee requests the Government to indicate in what manner it ensures that effect is given to the Convention with respect to public officials not engaged in the administration of the State who are excluded from the application of the Labour Code.

Article 1 of the Convention. Protection against acts of anti-union discrimination. Sufficiently dissuasive sanctions. The Committee notes that section 11(2) of the Labour Code stipulates that whoever violates the sections relating to discrimination shall be punished by imprisonment for a period not exceeding six months and a fine not exceeding one million dinars (approximately US$685) or by any of the two sanctions. While taking due note of the above, the Committee considers that the amount of the fine referred to above may not be adequate to deter and prevent the repetition of acts of anti-union discrimination, in particular in large enterprises. The Committee therefore requests the Government to take the necessary measures to ensure that the sanctions actually imposed in cases of anti-union discrimination are sufficiently dissuasive. In this regard, the Committee requests the Government to provide information on the sanctions imposed in practice.

Anti-union dismissal. The Committee notes that section 145 of the Labour Code provides that when the penalty of dismissal has been imposed on a worker, such decision may be challenged within 30 days before the Labour Court. It notes, however, that the Labour Code does not specify which sanctions are applicable in the event of anti-union dismissal. The Committee recalls in this respect that the reinstatement of a worker dismissed by reason of trade union membership or legitimate trade union activities with retroactive compensation constitutes, in the absence of preventive measures, the most effective remedy for acts of anti-union discrimination. It further recalls that the compensation envisaged for anti-union dismissal should be higher than that prescribed for other kinds of dismissal, with a view to the effective dissuasion of this type of dismissal, and that it should be adapted in accordance with the size of the enterprises concerned (see 2012 General Survey, paragraphs 182 and 185). Highlighting the importance that anti-union dismissals give rise to sufficiently dissuasive sanctions, the Committee requests the Government to specify which remedies may be imposed by the Labour Court in such cases, indicating in particular whether the Court is empowered to reinstate the dismissed workers in their positions.

Rapid appeal procedures. The Committee notes that sections 1(26) and 8 of the Labour Code provide protection against anti-union discrimination and that, according to section 11(1) of the Labour Code, workers may resort to the Labour Court to file a complaint when exposed to any form of discrimination in employment and occupation. The Committee recalls that the existence of legal provisions prohibiting acts of anti-union discrimination is not enough if they are not accompanied by effective and rapid procedures to ensure their application in practice (see 2012 General Survey, paragraph 190). The Committee requests the Government to provide information regarding the length of the procedure to treat complaints against acts of anti-union discrimination and its application in practice.

Article 2. Protection against acts of interference. The Committee notes that the Labour Code does not contain any provisions which explicitly prohibit acts of interference. The Committee recalls that under the terms of Article 2 of the Convention, workers’ and employers’ organizations shall enjoy adequate protection against any acts of interference by each other or each other’s agents or members in their establishment, functioning or administration. Acts of interference are deemed to include acts which are designed to promote the establishment of workers’ organizations under the domination of an employer or an employers’ organization, or to support workers’ organizations by financial or other means, with the object of placing such organizations under the control of employers or employers’ organizations (see 2012 General Survey, paragraph 194). The Committee requests the Government to indicate whether other laws or regulations explicitly prohibit acts of interference and provide for rapid procedures and sufficiently decisive sanctions against such acts.

Article 4. Promotion of collective bargaining in practice. The Committee requests the Government to provide information on the measures taken or envisaged to promote collective bargaining, the number of collective agreements concluded and in force in the country, as well as the sectors concerned and the number of workers covered by these agreements.