Balancing workers 'rights and employers' rights

Policy Paper

Issued it

Public Policy Analysis and Human Rights Unit

Affiliate Foundation

, Maat for Peace, Development, and Human Rights

Under a project

The Universal Periodic Review as a Tool to Improve Public Policies during the Transition

June 2017

 

 

“This release was implemented with the help of the European Union. The content of this publication is the responsibility of the Maat Foundation for Peace, Development and Human Rights and can in no way be considered a reflection of the visions of the European Union“

Introduction:

Between promoting workers' rights and satisfying employers, Egypt is witnessing a state of imbalance in the relationship between the worker and the employer, given that the last amendment to the Labor Law was by Law No. 12 of 2003, but the changes in the economic, labor and social scene in recent years, especially with The nature of work changed, and many workers turned into irregular employment, the amendment became a duty and the change was necessary, to restore the required balance due to the impact of these variables, which would restore the workers their rights on the one hand, and gain more investments on the other hand, without prejudice to the relationship between the worker and the employer.

In light of the deterioration of employment conditions in Egypt, especially in recent years, which negatively affected the work environment and attracted investments, this paper tries to provide solutions at the level of public policy, to address this problem, and come up with some results that can be used in improving the work environment for both the worker and the owner. Work, and achieve compatibility between them.

The paper deals with "The budget Between workers 'rights and employers' rightsA set of basic points in three axes: The paper begins with a presentation of the relationship between the worker and the employer from the legal and legal standpoint, as it clarifies this relationship through international conventions and the International Labor Organization, then deals with local legislation, and then presents Egypt's international obligations. In the second axis of the paper, the reality of employment in Egypt is listed in relation to the conditions of workers on the one hand, and the challenges faced by business owners and investors on the other hand are presented. The last axis deals with a proposed vision as an attempt to create a balance between the worker and the employer, in a way that does not waste the rights of the worker or harm the employer. The vision provides solutions at the legislative level, clarifying the role of trade unions, as well as highlighting the role of national councils in protecting workers' rights, and the role of companies and civil society organizations in the framework of supporting workers and ensuring their rights.

The first axis: the status of the relationship between the worker and the employer from the legal and legal point of view

First, the status of the relationship between the worker and the employer in international agreements

The Universal Declaration of Human Rights guarantees everyone “the right to work, the freedom to choose his work, to just and favorable conditions of work, and to protection from unemployment.[1]“. The right to work is also the first of the rights recognized by the International Covenant on Economic, Social and Cultural Rights[2]“; What I specialize in is that everyone has the possibility to earn his livelihood with a job that he freely chooses or accepts. However, the first to be issued to defend workers' rights in a specialized way is the International Labor Organization, which was founded in 1919, then turned into a specialized agency of the United Nations in 1946, and it works according to 4 main objectives, namely to ensure respect for basic rights at work, and to help provide Jobs for men and women alike, in addition to ensuring social protection for all work, and strengthening dialogue between the various professional parties.

Throughout its operation, the International Labor Organization has ratified and issued dozens of conventions[3]And it issued dozens of recommendations on both large and small about workers' rights and improving their conditions, as well as how to organize work, determine operating hours, child and women labor, eliminate unemployment, and other matters that affect all workers around the world.

Agreements regulating the relationship between the worker and the employer

• Organizing working hours: Agreement No. 30 established the regulation of working hours in commerce and offices[4]As well as Agreement No. 1 related to working hours in the industry, each of which specified working hours 48 hours per week at a rate of 8 hours per day. However, it specified guarantees for the employer when it is possible to increase these hours in some cases that may require an increase in order not to cause harm to the facility or the owner the work. In the same context, additional working hours are then calculated, whose wages are not less than one and a quarter of the basic hour value.
• Freedom of association: Agreement No. 87 of 1948 on trade union freedoms and the protection of the right to organize, which affirmed to workers and employers without any discrimination the right to establish and join their organizations without prior authorization, to establish and join public unions and federations and to international organizations. Labor organizations and employers have the right to draw up their constitutions and administrative regulations, to elect their representatives completely freely, to organize their administration and activities and to prepare their work programs, all without any interference from the public authorities that restricts or impedes this right and its legitimate exercise, and without the administrative authority having the right to dissolve these organizations or Cessation of its activities. And that workers and employers and their organizations respect the laws of the state in their exercise of these rights, and that the state takes the necessary measures to ensure that their right to organize is freely exercised.
• Occupational diseases and the right to compensation: Convention No. 18 of the International Labor Organization guarantees compensation for workers for occupational diseases or incapacitation due to occupational diseases, work accidents or death as a result of injury at work, and provides compensation according to the discretion of each country separately, according to its internal legislation.
• Protect workers against discrimination: Convention No. 98 of 1949 affirmed that workers enjoy protection from any work that involves discrimination in the field of employment because of their union affiliation, and in particular to make their employment conditional on not joining a union or conditional on their renouncing its membership, terminating the services of any of them or offending him because of joining A union or the practice of union activities outside working hours, or with the approval of the employer during working hours.
• Providing protection for workers and their representativesThe International Labor Organization has recognized the protection of workers' organizations and employers from interfering with some of them in the affairs of others, and in particular encouraging the establishment of workers' organizations that are under the control of employers or their organizations, or controlling existing workers' organizations by financial or other means. In the context of protecting workers' representatives, the International Labor Conference approved Convention No. (135) regarding the provision of protection and facilities for workers ’representatives in establishments for the year 1971 and Recommendation No. (143) affiliated to it, which emphasized the protection of workers’ representatives from harmful behavior, including termination of their services for reasons related to the exercise of their duties . And taking into account that these facilities are not affected by the workflow in the institution, or on the characteristics of the industrial relationship in the country, the size of the institution and its capabilities. High-level employees, employees whose duties are strictly confidential, and members of the armed forces and the police.
• Wages protection : The Convention No. 95 of 1949 regarding the protection of wages was approved[5], Which works to create a state of balance within the work, and maintains the rights of the worker to receive salaries.
• The right to organize and bargain collectively: The Convention No. 98 of 1949 regarding the right to organize and collective bargaining was approved[6]And concerned that the worker enjoys adequate protection from any work that involves discrimination in the field of employment because of their union affiliation, and to ensure that the worker is not dismissed due to joining a union or participating in union activities outside working hours.

8. Equal payApproved Convention No. 100 of 1951 regarding equal pay, which works to achieve equality between male and female workers in receiving wages without discrimination based on gender

• Minimum wage: It approved the Convention No. 131 of 1970 regarding fixing a minimum wage, referring in particular to developing countries, and called on the governments of each country to define the groups covered by wage workers, after consulting with representatives of the employers and workers concerned.
• Paid study leave:Recommendation No. 140 of 1974 regarding paid study leave was approved, which considers that the paid study leave is a means that ensures meeting the real needs of every worker in any modern society.

11. Improving the work environment: The International Convention No. 148 of 1977 concerning the work environment (air pollution, noise, vibration) was approved, with the aim of taking measures to prevent and control occupational hazards resulting from air pollution, noise and vibration in the work environment.

 

Second, the conditions of the relationship between the worker and the employer in Egyptian legislation

1. The Egyptian Constitution

The Egyptian constitution guaranteed the rights of workers as well as employers with a set of articles, beginning with the recognition that work is a citizen's right[7] And a duty at the same time, and the prohibition of compelling any citizen to work forcibly except by law. Whereas Article 13 of the Constitution recognized the state’s commitment to preserving workers ’rights, works to build balanced work relationships between the two parties to the production process, guarantees means of collective negotiation, works to protect workers from work hazards, meets conditions for security, safety and occupational health, and prohibits their arbitrary dismissal, all of this according to As regulated by law. It is the article in which the government decided, in a direct way, to regulate the relationship between the two parties to the production process, namely the worker and the employer.

2. Egyptian Labor Law No. 12 of 2003

The Egyptian Labor Law is the main method that guarantees workers' rights in detail, as well as clarifying the relationship between the worker and the employer, and works to create parallel between them, which is the law concerned with the private sector or individual establishment. However, this old law no longer keeps pace with the times nor the economic conditions in which the country is going through the current period. The law did not mention how to enforce the minimum wage or how to apply it in light of rising prices and increasing inflation. Among the most prominent articles of the law with a disagreement, which include the axis of the relationship between the worker and the employer: Article 57 prohibits the worker from collecting money or donations, distributing publications, collecting signatures, or organizing meetings inside the workplace without the consent of the employer, subject to the provisions of the laws regulating For trade unions. And in Article 104 of the old Labor Law, there was a so-called fixed-term contract, which considers the contract to be terminated by the end of the specified period. And Article 106 of the same law, which allows the renewal of a fixed-term contract after the expiration of the period, to be renewed with a new agreement, that is, with new conditions.

As for Article 107 of the same law, it clarifies that if a work contract is concluded for the completion of a specific work, the contract expires with the termination of that work. If the completion takes a period of more than five years, the worker may not terminate the contract before completing the work. And in Article 127: An employer is forbidden to terminate a work contract due to the worker's illness, unless the worker has exhausted his sick leave in accordance with what is determined by the Social Insurance Law, in addition to the frozen annual leave due to him.

Articles 192-195 regarding the right of the worker to strike peacefully, and set a set of controls for workers to demand their rights. And Article 47 concerning leaves, the annual leave period is 21 days with full pay for those who have spent a full year in service. As well as articles 232 through 257, regarding judicial control and penalties.

 

Third, Egypt's international obligations regarding workers' conditions

While Egypt was subject to the universal periodic review mechanism in 2014, the Egyptian government received a set of 300 recommendations, and supported the implementation of 223 voluntary recommendations, which will be held accountable for their implementation during the next session in 2018, and among the recommendations that Egypt received, a number of recommendations related to Concerning the conditions of workers, especially domestic workers, working women and child labor, the Philippines has recommended to consider introducing amendments to the labor law to include and protect domestic workers, and prohibit exploitative domestic work. Palestine recommended strengthening efforts to ensure that women enjoy equal work opportunities.

Bolivia also recommended continuing to work to ensure that women enjoy equal rights in the workplace through the state's public institutions, rules and policies, while Morocco recommended continuing to take measures to promote and protect women's rights, especially in the workplace. Serbia recommended strengthening measures aimed at eliminating the economic exploitation of children, and amending the national labor law to bring it into line with ILO Convention No. 182 relating to the prohibition of the worst forms of child labor and immediate measures to eliminate it. Senegal recommended strengthening monitoring and regulation of domestic work.

The second axis: the reality of employment in Egypt

First, the challenges the worker faces in Egypt

Workers are one of the main pillars in the development equation, and the claim for their rights is still at the forefront of the scene, and in Egypt workers have suffered for years from losing their rights, especially with the beginning of the privatization program under the era of former President Mubarak, and with what Egypt witnessed in terms of changing political events during the past four years The workers' problems increased after a number of factories stopped production.

• On top of the challenges of workers in the private sector comes what is known as Form 6, which is a form submitted by the employer to insurances or government agencies to prove the end of the worker's service signed on it, and the problem is that some businessmen force young people to sign Form 6 before signing the appointment contract, Consequently, the employer has the right to dismiss the worker without any objection on his part.
• The absence of a minimum and maximum wage, which made the employer control the least that he could give as a wage to the worker under the principle of supply and demand, and in light of poor living conditions and widespread unemployment, young people resort to accepting jobs with a wage that is almost sufficient for food and drink, and does not guarantee them a decent life And in the same context, many managers were left to set exaggerated salaries without a ceiling that could regulate that, which led over the years to the spread of poverty among a large group of the people.
• The labor law approved what is called a fixed-term contract[8]Which is considered to be terminated by the end of the specified period, which opened the way for most companies to determine a period for the worker’s contract for a year, two or three, and then the contract is terminated, and the contract with other people is similarly done, for lack of commitment to an open contract or what is called an unconstrained contract A fixed term, which would result in the worker obtaining many rights that the employer definitely avoids.
• In Article 106 of the law, it is permissible to renew a fixed-term contract with new conditions, which has made many companies circumvent the law, taking advantage of this critical loophole, in that after the expiration of the contract period and in order to avoid converting it into an indefinite contract, they cancel the contract and then contract again with the worker With a new contract and new conditions, and so on, the employer no longer has a need for an open contract with the worker, thus wasting his rights.
• Not requiring business owners to pay social and annual bonuses, which made the employer the only profit from the productive process.
• Continuing to rely on employment companies that brought workers back to bonded labor.
• Allowing foreign companies, in Investment Law No. 17 of 2015, to seek the help of foreign workers, in a way that contributes to raising unemployment rates.
• Article 127 prohibits the employer from terminating the work contract due to the worker's illness unless the worker has exhausted his sick leave, meaning that if the worker is injured during his work, or exposed to some disease, and is unable to complete the work, the employer has the right to terminate the contract, which is a violation of the worker's rights.
• The trade union challenges represented by the frequent formation of independent trade unions after the revolution, but businessmen have rushed to form independent unions and trade unions, to benefit from obtaining foreign funds under the name of supporting independent unions, and they travel abroad to hold meetings, which implies the lack of credibility of the word independent, Its dependence on the funder, which negatively affected the rest of the independent unions that failed to obtain support and funding, and even the independent unions are witnessing smear campaigns that have taken from the fragmentation between independent unions portraying public opinion as a conflict of interests and leaderships and not a union struggle. Likewise, some companies and authorities refused to negotiate with independent unions, which limits the role of trade unions, in addition to the lack of clear plans for developing membership, so that we find a factory with 16,000 workers, and an independent union with only 600 members.
• Among the most prominent trade union challenges is the inability to provide services, resorts and trips, and the union’s role was limited to social services, as if it were the only function of the union, and not looking for decent work conditions and collective negotiations.
• The dependence of the government and some ministries on imported products, which contributed to striking the Egyptian industry, as happened with the sugar crisis.
• The presence of more than three thousand idle factories, and yet there are no alternative solutions for how to exploit these factories and increase investment, which contributes to providing job opportunities, with decent controls on workers' rights.
• Article 47 of the Labor Law regarding vacations did not take into account the principle of non-discrimination with state employees, so the annual leave was specified 21 days, and for those who exceeded 50 years 30 days, while the civil worker who exceeded fifty gets 45 days leave, and the government worker enjoys a privilege Accidental leave is 7 days, but the private sector includes special leave as part of the annual leave, in addition to the public sector privilege, the right of a worker if he works on an official holiday, to rent double the day’s wage in addition to another alternate day for the day he worked.[9]
• The Labor Law restricted the rights of workers to peacefully strike, which limits their legal right to express their dissatisfaction with the management of the establishment. Although Article 192 recognizes the right to peacefully strike, the restrictions that followed in the same article and the following articles have restricted this right, for example when striking must consent The board of directors of the General Syndicate with a two-thirds majority of the members, then notifying the employer ten days before the strike by a registered letter with acknowledgment of receipt, specifying the reasons for the strike and its duration, as well as prohibiting the strike or calling for it in strategic or vital installations in which the stoppage of work results in a breach of national security or services The basic principles that it provides to the citizens, which is a contradiction in allowing the right to strike, and then restricting it at the same time.
• Penalties. The penalties stipulated in the Labor Law are not deterrent. There are more than 50 articles for which a fine of no less than five hundred pounds has been set, which requires review and a more severe punishment.

 

Second, the challenges that the employer and the investor face

The relationship between the worker and the employer is not limited to the existence of challenges and problems for the worker, but there are several challenges that face the employer, and affect the attraction of foreign investors to invest in Egypt, and the most prominent of these challenges are:

• Education and training[10]It comes at the forefront of the business owners' challenges, as a large proportion of workers in the garment industry are untrained workers and in many cases uneducated, and factories bear the burden of training, knowing that the rate of labor turnover from factories in Egypt reaches 20% annually, which is one of the highest rates in the world in these Industry. This is due to the fact that a large proportion of workers in clothing are women who work for a period of time until marriage and then leave work, in addition to the intense competition between factories for employment and leaving factory workers to obtain a higher wage. Thus, factories bearing the cost of training in exchange for the speed of leaving work directly affects the profitability of the factory.
• Work culture, workers lack the establishment of a work culture, including the importance of optimal use of time and efficiency and the importance of quality in production and discipline at work. For example, the absenteeism rates in factories reach 10%, and the time wasted in eating food, using toilets and praying is times that of other competing countries, and there are studies that have calculated wasted time in Egypt within the 20% range of production time.
• Lack of certain truisms such as washing hands after eating to keep the product clean, and that even after drawing attention to these basic rules, they are circumvented and promised to adhere to them. We also lack the idea of quality in the work culture in Egypt, we find that the eye is not trained to discover errors, and it is not a defect in vocational training, but a defect in education in general in Egypt, and instilling a culture of quality, accuracy and discipline.

The third axis: the proposed vision

First, legislative amendments

Labor Law No. 12 of 2003 must be amended, and a new law must be issued to keep pace with the economic, social and political fluctuations in Egypt since the January 2011 revolution, in a manner that guarantees a good work environment for the worker, and in a manner that does not harm production or the interest of the employer; The new law should guarantee several basic points that still represent the biggest obstacle between the worker and the employer, but in the beginning Form 6 must be canceled, which left the room for the employer to dismiss the worker arbitrarily without any accountability, and when amending the law, the following must be observed:

• Activating the role of the National Council for Wages, which is concerned with determining both the minimum and maximum wages, and obligating it to convene periodically to discuss variables of living conditions, and link salaries to prices
• The existence of a legislative text obliging the employer to pay an annual allowance to the worker, the percentage of which shall be determined by the National Council for Wages, in order to take into account the percentage of the bonus each year separately, according to the living variables.
• The necessity of abolishing foreign labor companies, and restricting travel for work to the Ministry of Manpower and Immigration, given the presence of many employment companies that work by defrauding citizens, and deducting from their wages a percentage in exchange for facilitating their obtaining contracts, and also there must be a law for employment companies inside that criminalizes the company From any financial compensation for a person who wants to work, in return for providing a job opportunity.
• Abolishing Article 104 of the Labor Law regarding a fixed-term contract, which ends with the end of the contract, and does not bind the employer to any rights of the worker.
• Abolish Article 106 of the Labor Law, which allows renewal of a fixed-term contract with new conditions.
• There must be an article that guarantees the right of the worker as well as the right of the investor in relation to contracts with the aim of implementing a specific project in a specific period of time, in a way that does not force the investor to confirm the contract with the worker as soon as the project period is extended, and at the same time it does not harm the worker. Therefore, we suggest “The foreign investor may conclude specific contracts The period for the duration of the project’s work, and determining the project’s working period when announcing the job. If the project does not end and the time of the contract expires, the renewal may be made for another period, and the worker may not be dismissed after completing the renewal, and if the project expanded and did not end in the second period, the contract became indefinite. “.
• Amending Article 127 of the same law, which gives the employer the right to terminate the contract if the worker's illness lasts for a long time, despite the worker’s illness or disability during his work. Therefore, the paper proposes “If the worker has exhausted his sick leave and has not recovered or is unable to complete his work, he is entitled The worker has a full social pension, and the end of service reward shall be disbursed to him according to the number of years he has spent at work.
• Amendment of Article 47 regarding vacations, and equality with state employees in the payment of leave allowances. Every worker has the right to an annual leave of 21 days, and for those over the age of fifty he has the right to 45 days, in addition to equality in 7 casual days, and in cases of necessity when the worker works during vacation Official, he is entitled to pay an allowance for two days for the overtime day, in addition to a day of compensation on another day.
• It is necessary to amend the articles on peaceful strike for workers, namely Articles 195: 192, and to simplify the rules of strike without prejudice to the rights of work, and the paper proposes that the article stipulate that “the worker is entitled to a peaceful strike inside the work facility with several conditions, we would inform the employer of their problems within the scope of the law, and if not The employer responds, the strike is organized peacefully, without using any tools or conducting any sabotage actions, and the strike must end if the employer intervenes and asks to negotiate with the workers, then representatives of the workers speak about their problems before the employer and reach a solution that satisfies all parties “.

Second, the role of trade unions

• Trade unions must be united within each enterprise, as the multiplicity of unions does not benefit the worker as much as it benefits the members of the trade unions themselves and their personal interests.
• Ensuring the independence of union work, away from the control of partisan and political life, in order to take into account workers 'rights in the first place, and not to leave room for conflict between parties under the slogan of workers' rights.
• Adherence to the principles of accountability and transparency, observance of the periodicity of the union elections, and not to allow periods for the elected president to be extended, so that the largest possible participation is more representative of all categories of workers.
• Work to expand the powers of the labor movement, by making the role of trade unions beyond the issue of wages only, and to activate their role in other activities of society.

Third, the role of national councils in protecting workers

• National councils have an important role in highlighting workers' problems, and disseminating them to the public opinion, so that the worker feels that there is someone supporting him, and that the national field, headed by the National Council for Human Rights, must form fact-finding committees that pay surprise visits to factories, companies and all labor institutions, in order to investigate About their conditions and hearing their complaints.
• There should be an office affiliated with the National Council for Human Rights, which is specialized in receiving workers' complaints, examining their complaints, and communicating with the concerned authorities to solve these problems, and that it shall be competent to form fact-finding committees.

Fourth, support businesses and civil society for workers

• Civil society should be included in the community dialogue when initiating labor-related legislative amendments.
• Enhancing the role of civil society in receiving workers 'complaints, and facilitating means of communication between civil society organizations and the concerned authorities to solve workers' problems.
• Educating companies and urging them to take into account workers' rights and put them into consideration in mind, in order to reconcile the worker and the employer, and to spread the spirit of consultation between the two sides in upholding the interest of work, and in a way that preserves the rights of the worker.

 

[1] Universal Declaration of Human Rights, Article 23, points 1-4

[2] International Covenant on Economic, Social and Cultural Rights, Part Three, Article Six, Point One.

[3] All agreements and recommendations can be found through the following link: http://bit.ly/2qK7Pyt

[4] The International Labor Organization - Convention No. 30 - The convention specifies some exceptions for some work to allow for an increase in working hours. In the event that work is interrupted due to the holidays, those hours may be compensated in the following days, taking into account that the worker does not work more than one hour per day, and does not exceed 10 Hours a day, and compensation is not made more than 30 days a year.

[5] International Labor Conference, Convention No. 95, Agreement on the Protection of Wages http://bit.ly/2qALKUt

[6] International Labor Conference, Convention No. 98, Convention on the Application of Principles of Right to Organize and Collective Bargaining.

[7] The Egyptian Constitution 2014: Chapter: The Basic Constituents of Society, Article 12 Work is a right, a duty, and an honor guaranteed by the state. No citizen may be compelled to work forcibly, except by virtue of a law, and to perform public service for a specified period, with fair remuneration, and without prejudice to the basic rights of those charged with work.

[8] Egyptian Labor Law No. 12 of 2003, Article 104

[9] State Personnel Law No. 47 of 1978, as amended by Law No. 504 of 2000, Chapter Vacations, Articles 62-75

[10] http://bit.ly/2rL555r