Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 370, Octobre 2013

Cas no 2961 (Liban) - Date de la plainte: 05-JUIN -12 - Clos

Allegations: The complainant organization alleges the denial of trade union rights in the public sector, notably in the education sector

1. 465. The complaint is contained in a communication from the League of Teachers of Public Secondary Education in Lebanon (LPESPL) dated 5 June 2012. Education International (EI) associated itself with the complaint on 6 March 2013.
2. 466. The Government forwarded its response to the allegations in a communication dated 11 October 2012.
3. 467. Lebanon has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), but has ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainants’ allegations

1. 468. In a communication dated 5 June 2012, the complainant organization alleges the denial of trade union rights in the public sector, notably in the education sector. It denounces the Government’s violation of international labour standards, including Convention No. 87 as regards the right conferred to public sector employees, such as civil servants, teachers and professors, of all categories, to establish independent trade unions, to transform their current associations into independent unions and to commence negotiations on their working conditions and the defence of their legitimate interests.
2. 469. The complainant indicates that the increasing socio-economic hardship facing workers and employees in Lebanon, coupled with the Government’s insistence on excluding an important category of wage workers (public servants, including teachers) from the protection for trade unions, and the continuing legal restrictions on other categories (workers in the private sector, as well as workers excluded from the labour law) has led to a severe distortion of the representativeness and structure of the Lebanese trade union movement as well as its ability to defend the interests of workers and public sector employees in Lebanon. This has significantly weakened the trade union movement as a social partner, to engage in effective and constructive social dialogue and to achieve its goal to strengthen and defend the interests of its members.
3. 470. In view of the importance of legislation in the consecration of rights set out in international covenants and conventions on human rights (a part of which are the international labour standards), and given that the Lebanese laws governing employment relations in the private and public sector violate international labour standards in many ways, that Lebanon is among the member States that approved the ILO Constitution and principles, and that the subject of the complaint falls within the ILO’s jurisdiction, the complainant states that it is filing this complaint with the Committee for examination and requests the active intervention of the ILO with the Government in order to put an end to these violations and achieve full compliance with the fundamental rights and principles at work.
4. 471. The complainant indicates that the Lebanese Constitution is headed by a Preamble that was added to it through Constitutional Act No. 18 on 21 September 1991. In section C of the Preamble, it is declared that “Lebanon is a democratic parliamentary republic based on the respect of public freedoms, especially the right of expression and belief, and on social justice and equality of rights and responsibilities between all citizens without discrimination or preference”. This founding principle highlights the democratic nature of the Lebanese system, which entails working on providing opportunities guaranteeing that citizens enjoy the rights associated to this democratic system, especially those explicitly “guaranteed within the frame of law” by the Constitution, including the right to expression in speech and writing, the right to association and the right to form associations.
5. 472. The complainant adds that the law on associations was issued in 1909 under the Ottoman rule, prior to the issuance of the Lebanese Constitution in 1926, and is still valid in Lebanon. Despite the fact that it was issued a century ago, this law is still considered among the most democratic laws that allow the exercise of one of the most basic freedoms without any restriction, except commitment to the highest societal principles and observation of the requirements of national security, general order and public morals. Its section 2 provides that forming an association does not require authorization, and that it is sufficient to deposit a formation instrument and its annexes with the Government in order to obtain from it an “apprise and notification”. After long-lasting debates as to how to implement this mechanism despite its simple character, the State Council settled the issue through an initial decision stressing the freedom to form associations according to what is set out in the associations’ own rules. The Government embarked on this course and laid it down in one of its ministerial statements.
6. 473. The complainant further states that the Labour Act grants employers and workers alike the right to form a union specific to each category of their professions, specifies the reason behind forming unions, bans them from “working in politics and participating in meetings and demonstrations of political character”, and tackles the modality of formation, membership and management (sections 83–106).
7. 474. As for the Public Servants Code (Legislative Decree No. 112/1959), it explicitly bans public servants from joining professional unions and organizations (section 15(2)), from going on strike or inciting to strike (section 15(3)), and from organizing collective petitions relating to the job or participating in organizing them for whatever reasons (section 15(9)). In the complainant’s view, this is a blatant violation of Convention No. 87. While the Public Servants Code was significantly modified via Act No. 144 of 6 May 1992 by providing greater political rights to public servants, no modifications have been made to provide trade union rights.
8. 475. The complainant also refers to the following instruments in support of its position:
   • (i) the Lebanese Constitution as amended, which stipulates: that “Lebanon is a founding member and active in the United Nations organization and committed to its covenants and the Universal Declaration of Human Rights, and the State embodies all these principles in all rights and domains without exception” (Preamble, section В); that “All Lebanese are equal before the law and enjoy equally civil and political rights and they bear public responsibilities and obligations without discrimination between them” (article 7); and that “the freedom of expression in speech and writing, and the freedom to publish and the freedom of association and the freedom to form associations are all guaranteed within the frame of the law” (article 13);
   • (ii) the Universal Declaration of Human Rights, which enshrines the rights and freedoms of the individual, including the right to form and join trade unions (Article 23(4));
   • (iii) the UN International Covenant on Civil and Political Rights, ratified by Lebanon in 1972, which contains similar provisions in Article 22 and prohibits restrictions to be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others”;
   • (iv) the UN International Covenant on Economic and Social Rights, also ratified by Lebanon in 1972, which similarly guarantees the right to form or join trade unions to promote economic and social interests, along with the right to strike according to law (Article 8);
   • (v) the ILO Declaration on Fundamental Principles and Rights at Work of 1998, according to which all Members, even if they have not ratified the fundamental Conventions, have an obligation arising from the very fact of membership in the Organization to respect, to promote and to realize, in good faith and in accordance with the Constitution, the principles concerning the fundamental rights which are the subject of those Conventions, namely, inter alia, freedom of association and the effective recognition of the right to collective bargaining;
   • (vi) the ILO Labour Relations (Public Service) Convention, 1978 (No. 151), which provides public servants with complete independence from authorities; and
   • (vii) the ILO Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), to which member States – among them Lebanon – are committed as a logical consequence to the 1998 Declaration, enshrining the principle of non discrimination and the right to establish trade unions without previous authorization.
9. 476. In the complainant’s view, the Government’s insistence on not amending the Public Servants Code and the Labour Act, especially the section on trade unions, in accordance with international labour standards constitutes a blatant infringement of trade union rights considering that the law on associations of 1909 liberated the formation of associations from the previous restrictions imposed on the establishment of trade unions. According to the complainant, Lebanon has refused to ratify Convention No. 87 on the basis that it grants workers the right to establish trade unions without discrimination and prior authorization from the Minister of Labour. The complainant alleges that the practice of previous authorization has led to the arbitrary distribution of authorizations and flooded the trade union movement with fake trade unions affiliated with the authorities. The consequences of this situation, which were confirmed by the reports of the Committee of Experts, were lately witnessed during the bargaining on wage adjustment and minimum wage settings where the most important category of public servants were absent, despite the fact that they are the most affected, their voices need to be heard and their work conditions need to be enhanced.
10. 477. The complainant believes that authorizing trade unions both in the public and in the private sector would enhance social stability and contribute to achieving social justice because trade unionism is related to civil freedoms and closely connected to the concept of civil society. In light of the constitutional, legal, historical, logical and factual reasons exposed above, and in order to put an end to the injustice suffered by public servants in Lebanon and fulfil the principle of equality between all citizens, the complainant requests the ILO to refer this complaint to the Committee and to make efforts to ensure that the Government respects international labour Conventions, especially Conventions Nos 87 and 98, creates the necessary conditions for the participation of the actual representatives of Lebanese workers in the tripartite committee and nullifies all decisions resulting from violations of ratified Conventions.

B. The Government’s reply

1. 478. In a communication dated 11 October 2012, the Government takes cognizance of the complaint filed by the LPESPL concerning “the violation of international labour standards by the Lebanese Government, including Convention No. 87 as regards the right conferred to public sector employees, such as civil servants, teachers and professors of all categories, to establish independent trade unions, to transform their current associations into independent unions and to commence negotiations on their working conditions and the defence of their legitimate interests”.
2. 479. The Government reaffirms its commitment to international labour standards, as evidenced by Lebanon’s ratification of 50 international labour Conventions, including seven of the eight fundamental Conventions. The eighth fundamental Convention is Convention No. 87, on which a bill has been introduced so as to allow the Government to ratify it.
3. 480. The Government states that the substance of this complaint does not correspond to the reality, and if the LPESPL was aware of the laws and decrees issued, it would have realized that the tripartite partners are well represented on the relevant boards and committees. Numerous examples illustrate the participation of representatives of workers and employers, be it in the labour arbitration councils (labour justice), the Arbitration Committee that issues decisions on collective labour disputes, the Cost of Living Index Commission or many other committees with tripartite features.
4. 481. According to the Government, the complaint also proves that the LPESPL is not aware of the Bill to authorize the Government to ratify Convention No. 87. In this regard, the Government attaches to its reply a copy of the correspondence exchanged on this subject, the Bill to authorize the Government to ratify Convention No. 87 and its rationale, as well as the decision of the Council of Ministers No. 81 of 12 June 2012 to approve the Bill and issue the draft Decree concerning its submission to Parliament.
5. 482. The Government concludes that the arguments put forward by the LPESPL in its complaint concerning the text of the Constitution and national laws relating to rights and freedoms, only confirm that Lebanon remains a country with freedom of association that guarantees the free exercise of trade union rights, the proof being the practice of the civil servants’ associations in the public administration.
6. 483. The Government therefore requests the Committee to dismiss the complaint for non conformity with reality, as evidenced by the legislative measures taken to promote trade union rights in Lebanon.

C. The Committee’s conclusions

1. 484. The Committee notes that, in the present case, the complainant organization alleges the denial of trade union rights in the public sector, notably in the education sector.
2. 485. The Committee notes that the complainant alleges: (i) the denial of the right of public sector employees, such as civil servants, teachers and professors, of all categories, to establish independent trade unions, to transform their current associations into independent unions and to commence negotiations on their working conditions and the defence of their legitimate interests; (ii) that the exclusion of important categories of wage workers (e.g. public servants, including teachers) from the protection of trade unions has led to a severe distortion of the representativeness and structure of the Lebanese trade union movement and has weakened its ability to defend the interests of workers and public sector employees in Lebanon; (iii) that, in violation of the right to association enshrined in the Constitution of Lebanon, the Public Servants Code explicitly bans public servants from joining professional unions and organizations (section 15(2)), from going on strike or inciting to strike (section 15(3)), and from organizing collective petitions relating to the workplace or participating in organizing them for whatever reasons (section 15(9)); (iv) that, in violation of the law on associations which provides that forming an association does not require authorization, the establishment of trade unions under the Labour Act requires previous authorization from the Ministry of Labour; (v) that this practice has led to the arbitrary distribution of authorizations and has flooded the trade union movement with fake trade unions affiliated with the authorities; and (vi) that Lebanon has refused to ratify Convention No. 87 on the basis that Article 2 grants workers the right to establish trade unions without discrimination or prior authorization from the Minister of Labour.
3. 486. The Committee notes that the Government indicates that: (i) the tripartite partners are well represented on the relevant boards and committees, as illustrated by the participation of representatives of workers and employers in the labour arbitration councils (labour justice), the Arbitration Committee that issues decisions on collective labour disputes, the Cost of Living Index Commission and many other committees with tripartite features; (ii) on 12 June 2012, the Council of Ministers decided to approve the Bill to authorize the Government to ratify Convention No. 87 and issue the draft Decree concerning its submission to Parliament; and (iii) in its view, the complaint should be dismissed as it does not correspond to reality, as proven by the legislative measures taken to promote trade union rights in Lebanon and the practice of the civil servants’ associations in the public administration.
4. 487. The Committee observes that it has recently examined similar allegations submitted by another complainant (see 367th Report, Case No. 2952 (Lebanon), paras 863–880). While welcoming the information provided by the Government that the Bill to authorize the Government to ratify Convention No.87 (submitted by the Ministry of Labour) has recently been approved by the Council of Ministers, along with the Decree concerning its submission to Parliament, the Committee notes that, according to the relevant Council of Ministers Decision, the Bill has been approved with a reservation in view of Article 2 of Convention No. 87 (Decision No. 81 of 12 June 2012). The Committee recalls that, due to the tripartite nature of the process of elaboration of international labour Conventions, any limitations on the obligations assumed on ratification other than those specifically provided for in the Convention (i.e. reservations) would make it impossible to register the instrument of ratification. It requests the Government to keep it informed of any further progress in the ratification process.
5. 488. Firstly, with respect to the denial of trade union rights to public sector employees including teachers, the Committee recalls that the standards contained in Convention No. 87 apply to all workers “without distinction whatsoever”, and are therefore applicable to employees of the State. It was indeed considered inequitable to draw any distinction in trade union matters between workers in the private sector and public servants, since workers in both categories should have the right to organize for the defence of their interests [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 218]. The Committee therefore urges the Government to take the necessary measures without delay to lift the prohibition placed on public sector employees, including teachers, to establish and join organizations of their own choosing, and to allow them to exercise their trade union rights to the full. It requests the Government to keep it informed of any developments in this regard.
6. 489. Secondly, as regards the alleged law and practice of previous authorization from the Ministry of Labour for the establishment of a trade union, the Committee recalls that the principle of freedom of association would often remain a dead letter if workers and employers were required to obtain any kind of previous authorization to enable them to establish an organization. Such authorization could concern the formation of the trade union organization itself, the need to obtain discretionary approval of the constitution or rules of the organization, or, again, authorization for taking steps prior to the establishment of the organization. This does not mean that the founders of an organization are freed from the duty of observing formalities concerning publicity or other similar formalities which may be prescribed by law. However, such requirements must not be such as to be equivalent in practice to previous authorization, or as to constitute such an obstacle to the establishment of an organization that they amount in practice to outright prohibition [see Digest, op. cit., para. 272]. The Committee therefore urges the Government to take the necessary steps to amend the relevant provisions of the Labour Act concerning the establishment of trade unions, in order to secure respect for the principle, in both law and practice, that workers have the right, without previous authorization, to establish organizations of their own choosing, and to join such organizations. It requests the Government to keep it informed of developments in this regard.
7. 490. Thirdly, the Committee expresses concern over the allegation that the above practice has led to the arbitrary distribution of authorizations and flooded the trade union movement with fake trade unions affiliated with the authorities, and observes that the Government has neither contested nor elaborated upon this allegation. The Committee must recall that, by according favourable or unfavourable treatment to a given organization as compared with others, a government may be able to influence the choice of workers as to the organization which they intend to join. In addition, a government which deliberately acts in this manner violates the principle laid down in Convention No. 87 that the public authorities shall refrain from any interference which would restrict the rights provided for in the Convention or impede their lawful exercise; more indirectly, it would also violate the principle that the law of the land shall not be such as to impair, nor shall it be so applied as to impair, the guarantees provided for in the Convention. In previous cases, the Committee has also emphasized the importance it attaches to the resolution of 1952 concerning the independence of the trade union movement and has urged governments to refrain from showing favouritism towards, or discriminating against, any given trade union, and requested them to adopt a neutral attitude [see Digest, op. cit., paras 340 and 341]. The Committee therefore firmly expects the Government to maintain an attitude of complete neutrality in its dealings with all workers’ organizations and ensure that the recognition and formal administrative authorization of all trade unions is carried out in an impartial manner.
8. 491. Lastly, the Committee emphasizes the importance of bringing the national legislation and practice into conformity with the principles of freedom of association, and the provisions of Convention No. 87 in view of the Government’s intention to ratify, and reminds the Government that it may, if it so wishes, avail itself of the technical assistance of the Office in this regard.

The Committee’s recommendations

1. 492. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to keep it informed of any further progress in the process of ratification of Convention No. 87.
   • (b) With respect to the denial of trade union rights to public sector employees including teachers, the Committee urges the Government to take the necessary measures without delay to lift the prohibition placed on public sector employees, including teachers, to establish and join organizations of their own choosing, and to allow them to exercise their trade union rights to the full. It requests the Government to keep it informed of any developments in this regard.
   • (c) As regards the allegations concerning the law and practice in respect of the previous authorization necessary from the Ministry of Labour for the establishment of a trade union, the Committee urges the Government to take the necessary steps to amend the relevant provisions of the Labour Act concerning the establishment of trade unions, in order to secure respect for the principles set out in its conclusions. It requests the Government to keep it informed of developments in this regard.
   • (d) Expressing concern over the allegation that the trade union authorizations are arbitrarily distributed and have flooded the trade union movement with fake trade unions affiliated with the authorities, and observing that the Government has neither contested nor elaborated upon this allegation, the Committee firmly expects the Government to maintain an attitude of complete neutrality in its dealings with all workers’ organizations and ensure that the recognition and formal administrative authorization of all trade unions is carried out in an impartial manner.
   • (e) Emphasizing the importance of bringing the national legislation and practice into conformity with the principles of freedom of association, and the provisions of Convention No. 87 in view of the Government’s intention to ratify, the Committee reminds the Government that it may, if it so wishes, avail itself of the technical assistance of the Office in this regard.