Solicitud directa (CEACR) - Adopción: 2025, Publicación: 114ª reunión CIT (2026)

Convenio sobre el derecho de sindicación y de negociación colectiva, 1949 (núm. 98) - Somalia (Ratificación : 2014)

The Committee takes note of the new Labour Code enacted in February 2025. While welcoming the efforts made to ensure the introduction of new labour legislation providing an explicit recognition of freedom of association and collective bargaining and strengthening labour relations, the Committee notes, however, that the adoption of the new law did not provide an opportunity to address some of its previous comments.

Scope of the Convention. Definition of worker. The Committee notes that the Labour Code defines a “worker” as “a person who undertakes to perform manual or non-manual work for an employer under a special or general, oral or written agreement, or by way of apprenticeship or probation, in return for remuneration” (section 2(14)). The Committee recalls that the Convention applies not only to employees but more broadly to all workers and that national laws and regulations may only exclude from the guarantees of the Convention the armed forces, the police and public servants engaged in the administration of the State. While noting the Government’s indication that it is assessing additional measures to explicitly enlarge the coverage of the legislation to self-employed workers, the Committee requests the Government to provide information on the progress made in this regard in order to ensure that these workers also benefit from the guarantees provided for in the Convention.

Article 1 of the Convention. Adequate protection against anti-union discrimination. The Committee welcomes the fact that, according to section 6(6)(b)(iv) of the Labour Code, an employer is not permitted to discriminate or harass, directly or indirectly, an employee or prospective employee on grounds of trade union membership or legitimate trade union activities. In addition, according to section 143(1), it is prohibited to discriminate against an employee, either by making employment conditional upon not joining or relinquishing membership in a trade union, or by dismissing or otherwise disadvantaging an employee because of trade union membership or participation in union activities. The Committee notes, however, that the Labour Code does not establish specific sanctions to enforce the above-mentioned provisions concerning anti-union discrimination; therefore they fall under the scope of section 213 of the Code, according to which any person who contravenes the provisions of the Code for which no penalty is specifically provided shall be punished in accordance with the procedures set forth in the Somali Penal Code and other laws of the country. The Committee recalls that the effectiveness of legal provisions prohibiting acts of anti-union discrimination is dependent on their enforcement through specific and sufficiently dissuasive sanctions, which should include fines that are adapted to the size of the enterprise and adjusted on the basis of inflation (see the 2012 General Survey on the fundamental Conventions, para. 193). In view of the above, the Committee therefore requests the Government to take the necessary measures to ensure that the Labour Code provides for sanctions, in particular fines, which are effective and sufficiently dissuasive for acts of anti-union discrimination.

Anti-union dismissals. The Committee notes that: (i) under section 117 of the Labour Code, dismissal on grounds of trade union membership or activities constitutes unfair dismissal, as the list of reasons deemed not fair explicitly includes an employee’s membership or proposed membership in a trade union; as a result, the remedies applicable to anti-union dismissals are those applied to any type of unfair dismissal; (ii) in this regard, under section 113(1) of the Code, an employee in such a situation is entitled to damages. The employee may file a complaint within three months to a labour officer, who can suggest ways to resolve the dispute (section 112(1)). Alternatively, the complaint can be brought before the Labour Court (section 112(2)), which has the authority to order reinstatement or re-engagement in comparable work (section 113(2)). Before making such an order, the court must consider factors such as any compensation already paid to the employee (section 113(3)(1)).The Committee recalls that the reinstatement of a worker dismissed for 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 also recalls that the compensation envisaged for anti-union dismissal should be higher than that prescribed for other kinds of dismissal to ensure a dissuasive effect (see the 2012 General Survey, paras 182 and 185). The Committee takes note of the Government’s intention to collect court data on cases of anti-union dismissals, specifically focusing on the nature and amount of compensation awarded, to evaluate whether higher compensation than for ordinary dismissal is required. With a view to ensuring that anti-union dismissals are subject to effective and dissuasive remedies, the Committee requests the Government to provide information on the type and amount of compensation awarded by courts when addressing anti-union dismissal cases.

Rapid appeal procedures. In its previous comments on this issue, the Committee recalled 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 the 2012 General Survey, para. 190). Noting the Government’s indication that it will monitor and report on the average length of proceedings in anti-union discrimination cases, the Committee requests the Government to provide detailed information in this respect.

Article 2. Protection against acts of interference. The Committee welcomes the fact that under the Labour Code, it is unlawful for any employer to engage in any act of interference in the establishment or functioning of a trade union (section 143(2)). The Committee notes however that, as is the case for the Code’s provisions against anti-union discrimination, section 143(2) is not accompanied by specific procedures or sanctions to ensure its respect. The Committee therefore requests the Government to take the necessary measures to amend the Labour Code to ensure that specific and sufficiently dissuasive sanctions are applicable to such acts.

Article 4. Promotion of collective bargaining.Recognition of organizations for the purpose of collective bargaining. The Committee notes that, according to section 190(2) of the Labour Code, a group of employers, or employers’ organizations, including a public employers' organization, shall recognize a trade union for the purpose of concluding a collective agreement, if the trade union represents a substantial portion of the employable workers who are members of a group of employers or employers’ organizations. The Committee observes however that there is no indication of what constitutes a “substantial portion”. The Committee recalls the importance of ensuring that the criteria of representativity are objective, preestablished and precise, and that the requirement of too high a percentage for representativity to be authorized to engage in collective bargaining may hamper the promotion and development of free and voluntary collective bargaining within the meaning of the Convention (see the 2012 General Survey, paras 228 and 233). The Committee therefore requests the Government to clarify what is meant by a “substantial portion” of employees, how it is envisaged to apply this provision of the Code and whether it is planned to clarify this concept as well as the applicable criteria of representativity in implementing regulations for the Code.

Compulsory arbitration. The Committee notes that collective labour disputes shall first be resolved by agreement between the parties. If this fails, the dispute shall be referred to the Regional Labour Inspector. If the Regional Labour Inspector also fails, the dispute shall be referred to the competent court (section 209 of the Code). The Committee observes that it seems there is no clear provision specifying who is entitled to refer a case to the Regional Labour Inspector or the court. The Committee recalls that compulsory arbitration is only acceptable in certain specific circumstances, namely: in relation to public servants engaged in the administration of the State; in essential services in the strict sense of the term; when after protracted and fruitless negotiations it becomes obvious that the deadlock will not be broken without some initiative of the authorities, or in cases of acute national crisis (see the 2012 General Survey, para. 247). The Committee therefore requests the Government to ensure that recourse to compulsory arbitration may, outside of the aforementioned exceptions, only take place with the approval of both parties.

Article 6. Public servants not engaged in the administration of the State. The Committee notes that the provisions of the Labour Code apply to all employers and workers, including those employed in the public service or public institutions to the extent that any of their terms and conditions of service are not governed by any other law (section 3(1)). The Committee recalls that it previously observed that since the draft Civil Service Law, which applies to all federal civil servants (section 3(1)), does not specifically refer to the issues covered by the Convention, these workers may benefit from the protection provided by the Labour Code. The Committee additionally notes with interest that section 190 of the Code concerning collective bargaining refers to both private and public employers. The Committee notes however that, under section 203, civil servants in public administration appear to be excluded from collective bargaining, pending the Government’s establishment of a specific framework to regulate collective bargaining for public sector employees. The Committee requests the Government to provide information on the practical application of the Convention in the public sector (public servants not engaged in the administration of the State), to provide detailed information on the specific framework established or envisaged to regulate collective bargaining for public sector employees and to provide a copy of the Civil Service Law once it is adopted.

The Committee hopes that the Government will make every effort to initiate a review process that takes into account its observations on the above-mentioned issues, so that the legislation is fully in line with the Convention. The Committee requests the Government to keep it informed of the progress made.

The Committee encourages the Government to avail itself of the technical assistance of the Office, if it so wishes.