New Trade Union Law Issued

On 17 December 2017, Law No. 213 of 2017 on Trade Unions (the “Law”) was issued following a long process of drafting and debates that took several years.[1] The recently approved Law shall repeal and replace Law No. 35 of 1976,[2] although it will maintain unions already in existence under the 1976 Law, which will preserve their current structure until new formations are elected within ninety days of issuance of the Executive Regulations, expected before 17 March 2018. Moreover, the new Law preserves trade unions that were established through a law, such as those associated with the Egyptian Trade Union Federation, confirming that these shall retain their legal personality and assets, and shall continue to function according to the provisions of the new Law.

Highlights of the New Law

• The Hierarchy of Trade Unions and Their Administrative Organization

The new Law defines three categories of trade union formations, respectively ordered as such: the trade union for an establishment (for example, a company or factory); followed by a general union (consisting of several business level unions); and finally, a general federation of unions (consisting of several general unions). Amongst the most controversial points of the Law is its stipulation that there shall be a minimum number of 150 workers required to form a trade union within an establishment (i.e. a first level union) and a minimum of 15 unions with no less than 20,000 workers for the formation of a general union (i.e. second level union). The Law also sets a minimum requirement of ten general unions for the establishment of a federation of unions (i.e. third level union), which must include at least 200,000 workers. Critics of the Law have highlighted the difficulty for unions to reach the minimum requirements of workers in many establishments, particularly those in the private sector, where in most cases workforces do not surpass 150 workers. It must be noted that the Law provides that for establishments with fewer than the minimum required number, workers are entitled to form a “Professional Trade Union Committee” at the city or governorate level together with workers in similar professions. Furthermore, the Law stipulates the different objectives of each category of unions, including interjecting in disputes involving its members, concluding collective bargaining agreements (on the first, second, or third level of unions), and participation in production planning on all levels. In contrast to the repealed law of 1976, the new Law does not explicitly stipulate a hierarchal relationship between all three categories.

• Responsibilities of Employers

The Law lists a number of responsibilities that employers have to undertake to ensure that workers can exercise their right to associate and unionize. The most important of such responsibilities is stipulated in Article 47 of the Law, which states it is the responsibility of the employer or her/his representative to ensure there are no barriers preventing trade union members from carrying out the activities of their unions. This includes effective communication "providing that it does not influence the productivity of the establishment", and allowing trade unions to hold trade union elections at the workplace and make available the information necessary for collective bargaining and negotiation. Furthermore, the Law also obliges employers to consider accommodating for training courses of members of trade unions by allowing full study leave. They are also obliged to provide for special leave when union members are carrying out union activities, leaving the Executive Regulations (“ER”) of the Law to determine the conditions and obligations governing these circumstances. In one of its most controversial articles, the Law allows for a union's board of directors to appoint a full-time member of the trade union, who is entitled to full remuneration from the employer. However, it also stipulates that this is to take place under certain conditions to be set by the ER of the Law following discussions with trade unions and organizations representing employers, which, effectively, reduces the chances of a full-time member being appointed. It is also noteworthy that in addition to the explicitly stated responsibilities of the employer, there are other responsibilities that emanate from the general responsibility to allow trade unions to fulfil their roles. For example, the Law stipulates that trade unions at the first level (i.e. businesses) should participate in the process of developing internal regulations and discussing the production plans of the establishment. The Law also prohibits employers from taking any measures that would impair the ability of trade unions to carry out their activities, such as penalizing workers for their legitimate trade union activities or refusing to employ a worker because of her/his membership in a trade union. Moreover, the Law forbids the employer from dismissing or suspending a member of the union's board of directors for more than two weeks, or transferring her/him from the establishment unless required by a decision or judgement issued by the relevant court. This protection applies also to candidates running for a position on the board or those preparing for the establishment of a new union.

• Elaboration on the Definition of “Worker”

The expansive definition of the term “worker” in the new Law includes in its scope temporary, casual, seasonal workers, self-employed and other labour workers. It also affirms the relevance of a broad concept for the idea of workers, which includes workers in the public, private, cooperative, and investment sectors as well as agricultural and domestic workers. In addition, the definition now includes irregular and seasonal labour, which was not incorporated in the earlier definition of “worker” in the Trade Union Law of 1976. The Law also clearly states that unemployed workers shall retain their membership in the trade unions to which they belong, and that they shall be exempted from paying contributions. On the other hand, the Law explicitly prohibits membership in more than one level of trade union, in the same profession, simultaneously, even if the worker is employed in more than one place.

• Guarantees for Trade Union Practices

The Law encompasses numerous articles dedicated to providing protection for workers' practices within trade unions. Article 3 of the Law stipulates that the laws relating to public meetings (such as the 2013 Protest Law) shall not be applicable to trade union activities such as public meetings.

• Termination of Membership and Dismissal

The Law mentions circumstances under which membership in a trade union shall be terminated, such as withdrawal, the loss of one of the requirements of membership, or failing to pay union dues. Expulsion of membership from a trade union shall be based on a decision by a two-thirds majority of the board of directors in the case of a member violating the law or the internal regulations of the union. It should also be noted that the new Law (in continuation of the provisions of previous Law No. 35 of 1976) allows retirees and pensioners to continue their memberships in the unions, and even to assume a position on their board of directors.

• Dispute Resolution

The Law highlights the jurisdiction of the Labour Court in dealing with disputes that arise from the implementation of the Law, stressing that other courts should refer relevant cases they receive to the Labour Court starting from the date of the Law's entry into force. An exception is given to proceedings that have been reserved for judgement and already considered prior to the new Law’s entry into force. To facilitate litigation, the Law allows trade unions to intervene in court proceedings involving their members, exempting them from paying judicial fees. The Labour Courts are considered the judicial power which may adjudicate cases relating to the application of the new Law, including the dissolution of a union's board of directors at the request of the minister, or the suspension of a member of the union's board of directors, etc.

• Regulation of Trade Unions

The new Law contains several articles that assign various roles to official bodies regarding the monitoring of trade unions' work and elections. The Law stipulates that trade unions should not aim to make profits, and that their funds shall be regarded as public funds as far as the Penal Code is concerned. It also stipulates that union accounts will be audited – for no fee – by the Accountability State Authority. While the Law gave trade unions the authority to make relevant administrative rules and regulations, it gave the relevant minister the authority to develop guiding models for financial and administrative rules. Moreover, the Law provides an administrative role for the directorates of the Ministry of Labour in the establishment of trade unions. Unions are required to submit the required documents (such as a list of founders, names of directors, statute, etc.) to the relevant authority, which reserves the right to request completion or modification of the documents. However, the Law did not give the administrative authority the right to fully reject the establishment of a union, although it gives it (as well as other stakeholders such as the employer) the right to object to the establishment of a union before the Labour Court.

• Penalties

The Law outlines various penalties for workers and employers. The Law stipulates a prison sentence and a fine of between 5K and 20K EGP for anyone who participated in the establishment or management of an entity and illegitimately referred to it as a trade union, or wrongly conducted any trade union activities that are only permitted to members of the board of the union.   Furthermore, the Law includes penalties such as imprisonment for a period of no less than six months and a fine of 100-200K EGP for anyone who violates articles prohibiting the receipt of donations, support, or funding from foreign individuals and entities. On the other hand, the Law provides for lower penalties for employers who violate their responsibilities, imposing a fine between 5-10K EGP on illegal acts such as penalizing workers in a material or non-material way, as a result of their trade union activities.

Conclusion

Despite its release a mere few days ago, the new Trade Union Law No. 213 of 2017 has already raised a significant amount of controversy about the need to achieve a balance between the power of employees and that of their employers. The Law has also been accused of being inconsistent with Egypt's constitutional guarantees, and the principles enshrined in Egypt’s international obligations and the core conventions of the International Labour Organization (“ILO”). Much of the current criticism and debate is rooted in the extent to which the philosophy of the new Law differs from that of the 1976 law. For example, while the new Law did not explicitly stipulate that there should be a total of one union within each establishment, some of its articles (particularly those setting a minimum amount of the number of workers required to form unions on all three levels) may actually make it difficult to create additional trade unions. This is particularly challenging due to the fact that the new Law maintained trade unions that have already been established by a separate law, such as the trade unions associated with the Egyptian Trade Union Federation, creating a smaller space for new unions to emerge.   [1] Law No. 213/2017 on Trade Unions and the Protection of the Right to Organize, Official Gazette, Issue No. 50 (bis) (b), 17 December 2017. [2] Law No. 35/1976 on Trade Unions, Official Gazette, Issue No. 22 (cont.), 27 May 1976.