The Labour Proclamation No.377/2003 A.

Objectives of Labour Proclamation No. 377/2003

The existing labour proclamation is designed in such a way that it can play a pivotal role
towards the all rounded development the country aspires. Unlike its antecedents this
proclamation tries to maintain compliance with the international conventions and other legal
122 Labour Proclamation No. 42/93, Negarit Gazeta, 52nd Year,No.27,Addis Ababa, 20th
January 1993. 123 Ibid Article 3(2) Page | 62 instruments to which Ethiopia is a party. The
following statements taken from the preamble assures this fact:- ensuring worker- employer
relations are governed in accordance to the basic principles of rights and obligations; making
possible the maintenance of industrial peace by joint effort of workers and employers and
enabling them to work in the sprit of harmony and protection; guarantying workers and
employers to establish their own associations and bargain collectively through their lawful
representatives; creating an enabling environment for peaceful settlement of labour disputes
arising between workers and employers; defining clearly the powers and duties of labour
inspectors that are duty bound to look for labour administration, particularly in labour
conditions, occupational safety and health, and work environment; strengthening the power of
inspectors so that they can be able to perform their duties in accordance to the law; and
making sure that the basic principles that govern labour relations should take in to account the
political, economic and social policies of the government and to make the labour law in
conformity with international conventions and other legal instruments to which Ethiopia is a
party. 124 As it was discussed earlier member States of ILO are duty bound to respect, promote
and realize the fundamental conventions of ILO because of their membership in the
organization. Ethiopia signed all the eight fundamental conventions of ILO and as a member
state she is duty 124 Labour Proclamation No 377/2003,Federal Negarit Gazeta of the Federal
Democratic Republic of Ethiopia, !0th year, No. 12,Addis Ababa Ethiopia, February 26, 2003,
Preamble Page | 63 bound to do so both in her legislation and in practical terms. Hence, we will
discuss whether some of the provisions of the labour proclamation in force are compatible with
the ILO conventions particularly with two most important conventions mentioned earlier. B.
Scope of Application of the Labour Proclamation No 377/2003 As it is mentioned by Assistant
Professor Mehari Reade, the proclamation does not govern all kinds of labour relations. Rather
there are some categories of employment relations that are excluded from the application of
the proclamation. To put it simly,"the scope of application of the Labour Proclamation is
employment minus the exclusion,” Mehari said. According to him, the exclusions are of two
types. The first category is an expressed exclusion and the other one is conditional
exclusion.125 The discussion on each of them will be briefly pointed out. I. Express exclusion
Under the category of express exclusion we found out public servants, management staff and
domestic employees. They are all excluded from the application of the labour proclamation.
Public servants that include parliamentarians, ministers, judges and their support staff are all
outside the application of the labour proclamation. Professor Mehari said, the rights and
obligations of civil servants are to be regulated by Civil Servants' Proclamation of the
country.126 In the opinion of the researcher, making a different law for civil servants that does
not include the right to organize and collective bargaining is 125 Mehari Redae, a simplified
guide to the Ethiopian Labour Proclamation, Addis Ababa ,Ethiopia, ILO (2008), 4 126 Ibid 5
Page | 64 meaningless and this kind of exclusion is not based on sound argument. This is
because the rights mentioned on the two most important conventions do not allow such kind of
discrimination between workers. Management staffs in an enterprise are the other category of
employees that are excluded from the application of the labour proclamation. According to
Professor Mehari, the labour proclamation prefers to follow the functional approach to identify
management members from others. This approach determines members of the management
staff based on the function they perform rather than focusing on the managerial position they
held in an enterprise.127 An employee is classified as a manager if he is engaged in one of the
following activities in his decision making process; "laying down and executing management
policies; hiring and firing of employees; promoting or demoting of employees; and disciplining
of employees". 128 From the very fact of holding the managerial position the mangers in an
organization can be excluded from the application of the labour proclamation. This is because
the owner hired them to protect his interest and if they become member of trade union there
will be a conflict of interest between their own interest and the interest of the owner who
delegates them. As it is known from the law of agency, the agent should work for the best
interest of his principal and there should not be conflict of interest between them. The same is
also true between the owner and the person holding the managerial position in a certain
organization. 127 Ibid 7 128 Ibid 7-8 Page | 65 The third groups of employees excluded from
the application of the labour proclamation are domestic employees. These are workers who are
dealing in the house hold activities of their employer in his dwelling that include, among other
things, cleaning, cooking, guarding and gardening of the entire compound. 129 The researcher
believes that those groups of people should have been covered by the labour proclamation.
There are also other categories of employees that are excluded from the application of the
labour proclamation. These are: contracts for the purpose of upbringing, treatment, care or
rehabilitation; contracts for the purpose of educating or training other than apprentice;
contracts relating to a person who performs an act for consideration at his own business or
professional responsibility.130 The exclusion of those groups of workers seems sound enough
for the researcher. II. Conditional exclusion Professor Mehari reveals that, the conditional
exclusion of certain groups of employees from the application of the labour proclamation has
also two categories of employees. The first one is conditional exclusion of employees of
diplomatic missions and international organizations. In order to respect diplomatic culture, the
legislature opted to have two options through which the labour proclamation could be avoided.
The first option is empowering the council of ministers to issue a regulation that expressly
excludes the applicability of the labour proclamation on local staff of the diplomatic mission.
The second alternative is based on an international agreement to which Ethiopia is a signatory
and that may prohibit the application of the labour proclamation on their local staff. 129 Ibid 9
130 Labour Proclamation (ft.nt.124) Article 3 (a-f) Page | 66 But in this approach the case is
determined based on the international agreements signed by Ethiopia with specific country in
question.131 The second categories of employees that are conditionally excluded from the
application of the labour proclamation are employees of religious and charitable organizations.
For these categories of employees, the council of ministers has been empowered to issue a
regulation which will have the effect of avoiding the applicability of the labour proclamation,
Mehari said.132 In the opinion of the researcher there should not be a conditional clause
whatsoever that is intended to prohibit different group of workers. The researcher strongly
argues that under its scope of application the existing labour proclamation either expressly or
conditionally excludes many categories of employees not to be governed by it. This means
those categories of employees are denied the most fundamental rights ratified by Ethiopia that
prohibit any kind of discrimination between workers to exercise their right to freedom of
association and protection of the right to organize (C 87) and the right to organize and
collective bargaining (C 98). 2.7 Constitutional provisions related to Human Rights particularly
to Trade Union Rights This section deals with constitutional provisions of Federal Democratic
Republic of Ethiopia (FDRE) that are related to human rights. Particular emphasis is given to
provisions that focus on trade union rights. 131 (ft.nt.125) 13-14 132 Ibid 15 Page | 67 Art 10 of
FDRE constitution provides that human right and freedoms emanating from the nature of
mankind are inviolable and inalienable.133 The three elements of this article are: o emanating
that means the rights are naturally given to all mankind irrespective of any difference ; o
inviolable means unbreakable or unchallengeable; and o Inalienable means absolute or
indisputable. Art 13 (1) stipulates that the three branches of government are duty bound to
respect and enforce the provision of chapter three that mentions about fundamental rights and
freedoms.134 These are stated under Article 14-44 of FDRE Constitution. Where as human right
provisions are stipulated from article 14-28 democratic rights are granted under article 29-44.
Moreover, article 13 (2) of FDRE constitution states that the rights and freedoms specified
under chapter three shall be interpreted in compliance with the principles of the Universal
Declaration of Human Rights, International Covenants on Human Rights and international
instruments adopted by Ethiopia.135 The constitution declares the prohibition of forced or
compulsory labour under its article 18 (3). It also stated the exceptional situations that are not
considered as forced labour under the next sub article of the same article. According to the
provision of article 25 all persons are equal before the law and are entitled without
discrimination to the equal protection of the law. Moreover, it also describes that all persons
are guaranteed equal and effective protection without discrimination on grounds of color, sex,
133 FDRE Constitution (ft. nt. 19) 134 Ibid 135 Ibid Page | 68 religion, etc. The right to equality
of women with regard to employment, promotion, pay and the transfer of pension
entitlements is provided in a mandatory way under article 35 (8). 136 This in a nut shell means
the principle of identical treatment for all. The guarantee of every person to the right to
freedom of association for any cause or purpose is declared under article 31. The only
exception mentioned in this regard is that the association should not have the purpose of
violating the appropriate law or should not be formed for illegal activity to subvert the existing
constitutional order.137 Art 36 (1) (d) declares that every child has the right not to be subject to
exploitative practices. The protection of children from hazardous work that is harmful to their
education, health or well-being is also mentioned in the same article. 138 The Constitution
clearly indicates that many categories of workers have the right to form trade unions and other
associations to bargain collectively with employers or other organizations that have an effect on
their interests. This right also includes the right to express grievances including the right to
strike. According to this article government employees that should enjoy the rights provided
under sub articles (a) and (b) of this article shall be determined by law. Sub article (d) of the
above article states that women workers have the right to equal pay for equal work. 139 The
above mentioned provisions of the constitution illustrate some provisions of the fundamental
conventions of ILO. Particularly the provision on article 42 is very clearly as to the right to
freedom of 136 Ibid 137 Ibid 138 Ibid 139 Ibid(article 42) Page | 69 association and collective
bargaining. According to this article the rights declared for workers include the right to form
trade unions and to bargain collectively with employers that have an influence on their
interests. It is also provided that the right to express grievances including the right to strike.

Doctrinal analysis concerning compatibility and limitations of the labour Proclamation No.
377/2003 vis-à-vis Fundamental ILO Conventions As it was discussed previously the
international community has largely come to consensus in favour of having ILS due to their
significant importance. More over, it is also apparent that conventions are international treaties
that have power of binding member States which ratify them. This means, ratifying States shall
compel themselves to implement the convention both in the form of legislation as well as in
practice. It is stipulated earlier that Ethiopia is a member State of ILO since 1923 and ratify all
the eight fundamental conventions of the latter. As a member State she is expected to put into
effect the conventions she ratified in the form of legislation as well as to make them practical.
The title of the research mentioned that it is designed to test the compatibility and limitations
of the labour Proclamation No. 377/2003 vis-à-vis Fundamental Conventions of ILO. But, space
does not permit extended discussion of all the eight fundamental conventions of ILO, and
hence, special mention should be made on the extent of compatibility of the Labour
Proclamation No.377/2003 in light of freedom of association and the effective recognition of
the right to collective bargaining (Conventions Nos.87 and 98), which are taken as the most
fundamental conventions with regard to workers right. Page | 71 3.1 Reflection of Stake
Holders on the compatibility of the Labour Proclamation No.377/2003 One would normally
expect that the labour proclamation would be formulated in such a way that there would be
the maximum possible degree of compatibility with Fundamental Conventions of ILO. More
over, it is illustrated on the labour proclamation that, one of its objective is to make the labour
law in conformity with international conventions and other legal instruments to which Ethiopia
is a party. To test whether this is a reality or not, it is important to see the content of the
proclamation and stakeholders view towards it. In this regard, an in depth interview has been
made with representatives of Ministry of Labour and Social Affairs (MOLSA), Ethiopian
Employers Federation (EEF) and The Confederation of Ethiopian Trade Unions (CETU). They are
selected for an in depth interview for three reasons. Firstly, they are the stake holders on
labour matters and constituent elements of ILO. Secondly, they are the ones that are
knowledgeable on labour matter. Thirdly, the selected representatives are the key informants
that represent their respective organizations. 3.1.1 Reflection of MOLSA Ato Solomon Demissie
140contends that Article 3 of the labour proclamation is compatible with C 87 Freedom of
Association and Protection of the Right to Organize Convention, 1948 and other ILO
Fundamental Conventions as well. He said, one of the principles in applying conventions is
flexibility and the labour proclamation is made in 140 Director, Directorate of Harmonies
Industrial Relations, MOLSA (Interview with Ato Solomon was made in his office on December
20,2011) Page | 72 such a way that it can maintain this principle. In addition to this, Article 42
(1) (c) of the Constitution of the Federal Democratic Republic of Ethiopia (FDRE Constitution)
mentions that government employees who enjoy the right of freedom of association and
collective bargaining shall be determined by law.141 But this is not yet determined by law. Ato
Solomon further argued that the exclusion under article 3 (2) (a) is made due to the fact that
applying the labour proclamation on such type of relation is very difficult. The organization at
stake, may give every necessary support for those persons in order to upbringing them or
treatment or care or rehabilitation purpose and expect them to do some thing during their stay
in that organization. But the organizations are not doing this for the purpose of employing the
needy people rather to rehabilitate them so that they can become self confident. Hence,
abiding those organizations to be governed by the labour proclamation might have discouraged
them to continue those services. Therefore, the government chooses their exclusion from the
application of the labour proclamation. Ato Solomon also argues that the exclusion under
article 3 (2) (b) is meant that contracts that aimed at education or training purpose should also
be excluded from the application of the labour proclamation. This is because the relation
between an organization that gives education or training and those that needs these services
should not be taken as having an employment relation. Ato Solomon contends that civil
servants that are mentioned under article 3 (2) (e) are also excluded from the application of the
labour proclamation. He said, although some States use a single labour proclamation for both
civil servants and other employees, the 141 FDRE Constitution (ft. nt. 19). Page | 73
government of Ethiopia chooses to make a different law for civil servants that enables them to
exercise the right of association and collective bargaining enshrined under the provision of the
constitution. The reason for making this decision is a policy consideration of the government,
he added. Ato Solomon asserted that conditional exclusion provided under article 3 (3) (a) of
the same article mentioned above has good reasons. He said, in order to respect bilateral as
well multilateral treaties between countries and based on the principle of immunity it was left
for the discretion of the Council of Ministers to make a regulation that prohibit the application
of the labour proclamation on employment relation between Ethiopian citizens and foreign
diplomatic missions or international organizations. But since the Council did not promulgate the
said regulation the labour proclamation can be applied on them too. Regarding religious or
charitable organizations the conditional exclusion is made on different scenarios, Solomon said.
The conditional exclusion for religious institutions may base it self on the principle of secularism
enshrined on the FDRE Constitution, he added. That is to say, the government intended the
possibility of excluding the application of the labour proclamation since the workers in religious
organizations are most of the time give ritual services even though they have employment
relations, he said. He alleged that with regard to charitable organizations the conditional
exclusion was made necessary based on charitable activities the organizations engaged in.
Forcing them to be abided by the labour proclamation may discourage them to do their charity,
and hence, it is better to give a room for the Council of Ministers to have a regulation that
might exclude them, Solomon said. Since the Council did not come up with a regulation,
workers in these two categories can make use of the labour proclamation as well. Page | 74 The
research contends that workers should be permitted to exercise the fundamental rights of ILO
particularly the right to freedom of association and the effective recognition of the right to
collective bargaining. In this respect, there should not be any sort of exclusion that forbids
workers from exercising these rights. But the position of representative of MOLSA shows that
making a difference between different categories of workers with regard to the two rights
mentioned seems some thing acceptable by the principle of ILO. But this is not a sound
argument. Hence, the researcher believes that the exclusion made on the scope of application
of the labour law is a discriminatory clause that makes a difference to many categories of
workers. 3.1.2 Reflection of EEF Ato Negalign Mulata,142 on his part argues that to some extent
the Labour Proclamation No. 377/03 is compatible with Fundamental Conventions of ILO. He
said, article 3 of the proclamation limits the freedom of association given to all workers with the
exception of Armed forces and the Police. He further argues that, the freedom of association is
the right given to all workers that have contract of employment with their employer. If we
agree that all employees are qualified as a worker, civil servants and others shall be governed
by the labour proclamation due to the work relation they had with their employer. That is to
say, if they are included in the definition of a worker, they have to have the right that is given to
all workers without discrimination. He is of the opinion that unionization of employees has the
capacity to strength the employer. If all workers are not given the right to freedom of
association, they cannot make a collective bargaining. Hence, it can be concluded that the
above 142 Director of EEF ( An interview with Ato Negalign Mulata was made on Decemebr
20,2011 ,in his office) Page | 75 mentioned article is against both convention 87 and convention
98, Negalign said. The representative bases his argument on the definition of what a worker is
all about. This leads to the conclusion that the manager that is not an owner would qualify the
definition of a worker due to the fact that he had had an employment contract with his
employer. This would create a problem because managers could not form a trade union with
workers. With regard to avoidance of any sort of discrimination between workers the
researcher agrees with representative of EEF. 3.1.3 Reflection of CETU Ato kassahun Follo143
started his answer for the interview by defining what a labour proclamation is all about. He
contends that labour proclamation does not simply contain matters related to employment
relations. It rather has an element of human rights, economics, social affairs and politics in it. In
other words, it encompasses many things and therefore needs critical enforcement
mechanisms and adjudication processes. When one talks about labour relations, he is
addressing all the elements mentioned above that are supposed to be contained in labour
proclamation, Kassahun added. He alleged that the Labour Proclamation No.377/2003 is not
compatible with the Fundamental Conventions of ILO. He substantiate his argument by
mentioning that, although the Fundamental Conventions of ILO are eight, two of them,
(Convention 87 and Convention 98) are the most fundamental and important ones that are
clearly stipulated on international instruments as well as national legislations. He mentioned as
an example the following instruments: 143 President of CETU, (An interview with Ato Kassahun
Follo was made in his office on January 19,2012) Page | 76 Article 23 (4) of the Universal
Declaration of Human Rights states these rights as human rights; The constitution of the
Federal Democratic Republic of Ethiopia under its article 42 clearly mentions freedom of
association and the right to collective bargaining as workers rights; Convention 87 (freedom of
association and protection of the right to organize) and convention 98 (the right to organize and
collective bargaining) are ratified by Ethiopia and article 9 (4) of the FDRE Constitution provided
that ratified agreements are integral part of the law of the land. The above mentioned
international instruments as well as national legislations support the conclusion that the labour
proclamation currently in force is not compatible with Fundamental Conventions of ILO,
Kassahun said. This is because article three of the labour proclamation narrowed the
application of the proclamation by excluding large categories of workers either expressly or
impliedly. And this exclusion is against the two most fundamental conventions illustrated
above, Kassahun concluded. Ato Kassahun concluded that the exclusionary clause stated on the
labour proclamation is equivalent to discrimination between certain groups of workers which is
clearly prohibited by convention on freedom of association and protection of the right to
organize. Even though he reached to this conclusion by referring only to one article of the
labour proclamation the researcher agrees with his conclusion. Page | 77 3.1.4 Analysis of the
researcher on compatibility of the labour proclamation no.377/2003 Although the Fundamental
Conventions of ILO are eight, the Convention on Freedom of Association and Protection of the
Right to Organize and The Convention on the Right to Organize and Collective Bargaining widely
acknowledged as the most fundamental ones. This is because these two rights are essentially
enabling rights for workers that facilitated the way to form and join workers' organizations of
their own choice in order to promote common organizational interests. In other words, the
remaining rights can be appropriately exercised if and only if the two rights do exist. That is to
say, with out having these two rights exercising the other rights would be problematic. In the
battle field of trade union, collective bargaining is the key weapon. Trade unions need their own
organizations which are free, strong, democratic and independent that makes them enable to
negotiate with their employer.144 This shows that the convention on freedom of association
can not be exercised with out the convention on the right to organize and collective bargaining.
This means the two conventions are intertwined together. International instruments also
magnify the fundamental importance of the convention on freedom of association and
collective bargaining. As it is discussed in chapter one International Bills of Rights, i.e., UDHR
and the twin covenants, mentions that the right of association is considered as both civil and
political right and an economic and social right. In addition to this, the violation of freedom of
association, which is the most fundamental workers' rights, is pointed out as the first sign of
deteriorating situation in a country. 144 ILO, Trade union pluralism and proliferation in French-
speaking Africa, Geneva, Switzerland, 2010 Page | 78 Moreover, it is also indicated that not
only workers in the private sector of the economy, but also the civil servants and public service
employees in general are guaranteed the right to unionize. The ILO standards promote for
collective bargaining and help to ensure that good labour relations benefit every one. As it is
pointed out under chapter two the preamble of the existing labour proclamation clearly
indicates that one of its objectives was to make it compatible with conventions ratified by
Ethiopia. But there are provisions on the labour proclamation that indicate express as well as
conditional exclusion under its scope of application. This is a signal that the government intends
to exclude many groups of workers not to exercise their right of freedom of association. This
indicates that the provision is against article 3 (2) of Convention 87, which prohibits any
interference which restrict the exercise of freedom of association. 145 This is because member
States should undertake to take all necessary and appropriate measures to ensure that workers
and employers may exercise freely the right to organize.146 More over, it is provided 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. 147 The researcher strongly argues that making the
scope of application narrower is a sign of distinction and this tantamount to incompatibility of
the provision when compared with freedom of association and protection of the right to
organize. In other words, making an express as well as conditional exclusion on the labour law is
impairing the rights mentioned on Convention 87. Since the right to freedom of association is a
foundation for other conventions a contravention on it is an infringement to other conventions
too. 145 Article 3(2) C87 (ft.nt.46) 146 Ibid article 11 147 Ibid article 8 Page | 79 Article 9 of
Convention 87 stated that the only exception left for the determination of national laws or
regulations is the extent to which the guarantees provided on the convention shall apply to
Armed forces and the Police.148 This shows that even the Armed forces and the Police can
enjoy the above mentioned rights but the extent of their enjoyment is left for the
determination of the national legislations of member States. Hence, intending to have another
law for civil servants will be contrary to the convention on freedom of association and
protection of the right to organize. This means the exceptional clause left for the national
legislation is pertaining to the armed force and the police and countries are not allowed by the
convention to make any sort of exclusion between workers that amount to making distinction
between workers. The provision on the proclamation made it unlawful if the employer impede
the worker in any manner in the exercise of his right or coerce any worker by force or in any
way to join or not to join or to cease membership in the union.149 But this only serves for
workers that are allowed to be governed by the labour proclamation not to all workers. This
shows if the scope of application of the labour proclamation was meant to include many
categories of worker this article of the labour proclamation would serve its purpose entirely.
The proclamation provided that all workers and employers shall have the right to form their
own organization.150 Trade unions are also allowed to form federations and confederations
jointly and to be an affiliate of international organizations.151 Even though the two provisions
seem in compliance with article 5 of Convention 87 152 the researcher believes that the
conformity is unclear. Because article 8 (2) of the convention 148 Ibid 149 Article 14 (1) (a) and
(d) ,Labour Proclamation No 377/2003 (ft.nt.124) 150 Ibid article 113 (1) 151 Ibid article 114 (3)
and ( 6) 152 C87 (ft.nt.46) Page | 80 clearly indicates that the law of the land shall not to impair,
nor shall it be so applied to impair the guarantees provided under the convention on freedom
of association and the right to organize. Hence, the above mentioned two provisions as well are
aimed to serve workers that can only benefit from the labour proclamation. Article 120 of the
labour proclamation mentioned that the Ministry may apply to the competent court so that the
latter can order the cancellation of the certificate of registration whenever one of the
conditions stated on the same article are fulfilled.153 This is one and the same as to the
provision revealed on article 4 of the convention on freedom of association and the right to
organize which prohibit the dissolution or suspension of the formed organizations by
administrative authorities.154 But the researcher strongly argues that we can talk about
dissolution of an organization if it was allowed to all workers without any distinction
whatsoever. In contrary, article 121(3) allowed the Ministry to suspend the organizations to
abstain from the act which is prohibited by the proclamation or opposite to the objective
revealed on its constitution. 155 But the researcher considers that the suspension of an
organization should also be made by the order of the court. As it is stated above even though
the labour proclamation made it interference of an employer with trade union matters
unlawful, it is not well provided. This is because according to article 2 of the convention on the
right to organize and collective bargaining, workers' and employers' organizations shall enjoy
adequate protection against any act of interference by each other. More over, it is clearly
stipulated that making 153 Ibid 154 C87 (ft.nt.46) 155 Labour Proclamation No 377/2003
(ft.nt.124) Page | 81 workers organizations under the domination of employers or their
organizations or supporting the former aiming to make it under the control of the latter or its
organization shall constitute interference. 156 But under the contested labour proclamation
there is no such a clear provision that is designed to protect workers and their organization and
that makes the labour proclamation not to be confirmed with the right to organize and
collective bargaining convention. More over, article 3 of the above mentioned convention
stated that there shall be appropriate machinery in place that facilitates the ensuring of respect
of the prohibition of interference. 157 There is no such a provision in our labour proclamation
that was very useful for the protection of particularly workers organizations which are
vulnerable in most situations due to absence of this provision. Even though there are provisions
with regard to collective bargaining and collective agreement under articles 124 through135 of
the labour proclamation158there is no provision that indicates appropriate measures shall be
taken that encourage and promote the full expansion and exploitation of machinery that helps
voluntary negotiation between employers' organizations and workers' organizations.159 From
the above the researcher concludes that, some articles mentioned on the disputed labour
proclamation are incompatible with the two most fundamental conventions (the right to
freedom of association and protection of the right to organize and the right to organize and
collective bargaining). This is practically the same as being in compatibility with the rest of ILO
fundamental conventions. 156 C98 (ft.nt.54) 157 Ibid 158 Labour Proclamation No 377/2003
(ft.nt.124) 159 Article 4, C98 (ft.nt.54) Page | 82 Although other reasons can be mentioned for
drafting articles for the revision of the labour proclamation, the researcher believes that it is
aimed to make the labour proclamation compatible with the Fundamental Conventions of ILO.
This is because the provisions mentioned on forced labour convention, abolition of worst forms
of child labour convention and minimum age convention have been clearly indicated on the
draft labour proclamation prepared by MOLSA. This means MOLSA is trying to fill the gap of the
labour proclamation by taking provisions from different fundamental conventions that is an
indication of lack of compatibility in the existing labour proclamation. Therefore, the researcher
strongly argues that the initiation for the amendment of the labour proclamation is also an
indication of lack of compatibility of the labour proclamation when compared with the
fundamental conventions of ILO, particularly the right to freedom of association and protection
of the right to organize and the right to organize and collective bargaining. 3.2 The Limitations
of the Labour Proclamation No.377/2003. Ministry of Labour and Social Affairs (MOLSA)
initiated for an amendment of Labour Proclamation No.377/2003. One of the reasons for this
amendment is to make the proclamation compatible with international instruments particularly
the ILO Fundamental Conventions and the other reason can be to minimize the limitations it
had. The Ministry has formally invited the stake holders, i.e., Ethiopian Employers Federation
(EEF) and The Confederation of Ethiopian Trade Unions (CETU) to bring an amendment
provisions in the year 2009. Then it had made repeated discussion with them separately.
Currently, the Page | 83 draft amendment provision have been prepared and ready to be
presented to the advisory board (which comprises five members from each of the three stake
holders) for discussion before it will be sent to the Council of Ministers. During an in depth
interview made with the three stake holders on labour matters, all of them mentioned that
since the Labour Proclamation No.377/2003 is on the process of amendment it is better to look
at the amendment provisions prepared by them to sort out the limitations of the proclamation.
The first part tries to deal with the draft amendment document forwarded by MOLSA, which
initiated the amendment and is the responsible government body in the drafting and
enforcement of the Labour Proclamation. The second part of the discussion is based on the
document prepared by MOLSA (The stand of the Ministry on draft prepared by both EEF and
CETU on the revision of the labour proclamation No. 377/ 2003 and minutes of the committee).
And the view point of the two stake holders, which represent the employers and the trade
union respectively, will be mentioned based on this document. At the end comes the
observation of the researcher. 3.2.1 MOLSA's view on the Limitations of the Labour
Proclamation No.377/2003 MOLSA contends that the following provisions of the Labour
Proclamation No 377/2003 need an amendment and additional provisions are also included
that are understandably intended at least to minimize the limitations that the proclamation
has. Article 2 (4) is deleted and the following has been provided. o The definition of Minister is
separately made, and Page | 84 o Ministry is redefined to include MOLSA and other bodies in
the region that are responsible for the enforcement of the labour proclamation. New sub
articles 8,9,10 and 11 are added under article 2 of the labour proclamation (sub article 8 defines
“sexual harassment”; sub article 9 "sexual character"; sub article 10 "social dialogue”; and sub
article 11"managerial employee"). Article 3 (2) (c) is deleted and under the new sub article only
a phrase "managerial employee" is mentioned. Under the new sub article (d) of Article 3 (3) the
Council of Ministers is responsible to make a regulation of work condition of managerial
employee. Sub article 5 is added on Article 6 that mandates the ministry to prepare a model
employment contract. Registration of workers about their status of HIV/AIDS is clearly excluded
under article 12(6). An additional phrase is made on Article 14 (1) (d) that stated the prohibition
of interference that forces a worker to be a member of one association after terminating his
membership from another association. Discrimination of a worker due to his status of HIV
positive is prohibited under sub Article 14 (1) (f). Provisions mentioned under C 29 Forced
Labour Convention, 1930 Article 2 (2) was acknowledged on the new sub article 14 (1) (g). The
following new sub articles are designed to be part and parcel of Article 14: o Sub article 3 made
it unlawful the interference of a worker, an employer and their representative organizations to
the affairs of one another ; delaying collective bargaining without any good cause and in bad
faith is also made unlawful; Page | 85 o Sub article 4 made sexual harassment unlawful when
committed during recruitment and employment relation; and o Sub article 5 mentions that it is
unlawful to compel a worker or an employer. There is a new statement made on Article 22.
"The employer shall reinstate an employee maintaining his job grade and status". A phrase is
inserted under Article 28 (1) (g) that indicates there should be uninterrupted performance
evaluation of a worker. Under Article 29 (3) a new phrase "giving information" is added. The
two sub articles of Article 61 was exchanged their position. It is mentioned on Article 72 (1) that
there is a possibility of applying the labour proclamation on commercial travelers or
representatives through employment contract or collective agreement. There is a new sub
article 6 under Article 79 that states the obligation of an employer to pay money for the annual
leave transferred for more than two years due to the reason attributed to him. Paternal leave
of 5 days is allowed under Article 81(2). The prohibition of discrimination on women due to
their sex is enlarged to include: discrimination during recruitment, promotion, re-deployment
and remuneration. This is mentioned under Article 87(1). Article 87 also mentions women
should be given priority during recruitment, promotion and re-deployment if they have equal
grade when competing with men. There was a drastic change made on Article 89 starting from
the title. The title is reframed as: "Protection of children from worst forms of child labour and
working conditions of young workers". Under its sub article "A", Article 89 defines what a child
is and the prohibition of employing a child. Then its sub article 3 provides Page | 86 issues
mentioned under Article 3 of C 182 Worst Forms of Child Labour Convention, 1999. Under its
sub article "B", Article 89 defines the minimum age required to be considered as young worker.
Then, the issues provided under Article 5 of C 138 minimum Age Convention, 1973 is stipulated.
Sub article 2 of Article 92 includes the phrase "the capacity and education of the safety officer"
shall be determined by the directives given by the Ministry. Sub article 5 of Article 92 clearly
mentions that medical examination of a worker does not included examination of HIV/AIDS.
Article 92 is also designed to have sub article 9 that provides the employer should register his
work place on the document prepared by the Ministry. In order to make the wordings of the
labour proclamation to be consistent with the newly proclaimed pension Proclamation No
715/2011, both sub articles of Article 109 are rephrased. The Amharic word of Article 126 that
stands for the English word representation is replaced by appropriate word. New sub article is
provided under article 128 and its content is the inclusion of social dialogue in collective
agreement. Article 129 has new sub article 7 that allows social dialogue forum at the enterprise
level. The dead line for the registration of collective agreement is stated to be 3 days. The
consequence of delaying of registration of a collective agreement is also mentioned under
article 131 (2). Article 141 is amended in such a way that the power of the conciliator should
include individual labour disputes in addition to collective labour disputes. Moreover, the
conciliator can be Page | 87 assigned at federal level and at all levels of regional
administrations. Article 142 also mentions that individual labour disputes enshrined under
Article 138 is included to be under the power of a conciliator. Sub article "h" of Article 170 (1) is
modified as a mandatory provision. The provision obliges the employer to have an insurance
coverage for the payment of employment injury. New sub article 3 that allows the
establishment of advisory board at the regional level is mentioned under Article 170. Three new
sub articles are added under article 177 and their contents are the following: o The ministry is
empowered to give license and renew it for special kinds of works that require special skill; o
The ministry is also mandated to give directives regarding controlling mechanism of private
employment relationship; and o The amount of payment for controlling private employment
services will be provided by the regulation of Council of Ministers. Sub articles 1 (c) and 2 (d) of
Article 184 are revised. The fines are made progressively from birr 3,000 up to birr 15,000 and
from birr 5,000 until one year imprisonment respectively. Article 2 (1) (h) of Proclamation No.
494/2006 was rephrased to give it a clear meaning. Article 4 (1) and (2) of the above
proclamation is also revised. In sub article 1 the fine goes from 5,000 birr up to 6 month Page |
88 imprisonment, where as, in sub article 2 the fine started from 5,000 birr and ends by 1 year
imprisonment. 160 The above mentioned provisions are designed by MOLSA as an amendment
provisions that show the limitations the labour proclamation has. 3.2.2 EEF's view on the
Limitations of the Labour Proclamation No.377/2003 EEF believes that the following articles of
the labour proclamation should be revised due to the reasons mentioned adjacently. And it also
argues that some new articles should be added that can possibly fill the limitations the
proclamation has. Since article 10(2) needs repeated vacancy announcement and making of
employment contracts it should be revised as: the contract of employment shall not exceed 90
consecutive days and until the completion of the work started. The reason is to avoid the
interruption of the work. Particular emphasis should be given to construction works and article
10 of the proclamation should clearly indicate that the construction works should be covered.
There should be clear provision under sub article 2 of Article 14 which makes an act of a worker
unlawful whenever that worker is unwilling to perform an order given to him by his boss. The
lapse day of terminating contract of employment that is mentioned on article 27(3) should be
extended until 90 working days. Because the process of sorting out the reasons for the
termination of the employee may take longer time. 160 A draft document on Labour
Proclamation No.377/2003, prepared by MOLSA 2011 Page | 89 Articles 24, 27 and 28 limit the
right of the employer to hire and fire his employees at any time he desired to do. Therefore,
EEF suggested that the employer should be allowed to fire his employee upon giving proper
compensation. Because, if this right of an employer is not satisfied it will discourage growth of
an investment. There should be an alternative provision under sub article (1) (c) of Article 28
that shows "whenever either an undertaking or division of an undertaking moves and the
worker is unwilling to move to a locality". EEF believes that the provision on article 38 that
allows three months wage for the delay of payment is not fair. He asserted that the delay may
be caused due to work load or due to negligence of the worker that was responsible to do the
payment. Hence, it should be rather put "if the worker asked the employer both in writing and
orally and if the latter refused to pay, then the former has the chance of payment for the
delay". Article 39 (1) (f) should be revised. Because if the disability was caused due to the fault
of the worker himself, he should not be paid severance payment upon termination of his
contract of employment. The word "multiplied by", which is mentioned under sub article 3 of
Article 40, should be deleted because it becomes controversial in the court of law. Instead it
should be stated as monthly salary. The provision made on article 41 leads the employer to a
double payment; hence, it should be revised to avoid this. It should be qualified and put "those
employees who served for 20 years and attain an age of 55 should not get this kind of
payment". The provision mentioned on article 43 limits the right of the employer. Hence, it
should be amended so that the employer can have the right to terminate the employee by
giving prior notice. Page | 90 Whenever a worker is reinstated in accordance to article 43 (1),
the employer should have the right to re-deploy him in whatever position he wishes. Because
the former position may be occupied by another employee for the sake of continuity of the
work. Rather than making the order of dismissal of the worker upon payment of compensation
mentioned under Article 43 (3), it has to be left for the discretion of the employer himself.
Because the employer that believes the reinstatement of the worker will endanger the business
of the organization should have to decide whether to reinstate him or to terminate upon paying
compensation. Article 54(2) does not take into account the situation of enterprises. It should be
better if the article is replaced as, "if it is beyond the control of the employer, the employee
should not be paid but should get annual leave without payment. Due to force majeure like that
of interruption of electricity, fuel, and lack of foreign exchange the work of the enterprise may
be stopped.” The time limit made on article 63 that allows an extension of two hours on the
daily limits of eight working hours should be stretched out up to four hours a day. Because
some enterprises like The Ethiopian Air Lines and hotels may be endangered if the time is not
extended for more than two hours. The wording of article 73 is vague, hence, it should be
rather made public holidays mentioned on the government agenda than holidays observed
under the relevant law. Article 75(2) is not clear regarding the payment of two public holidays
coincided in one day. The annual leave mentioned on Article 77 (1) (b) should not be more than
35 working days. Page | 91 The phrase on Article 81(1) (b) that states, "Another relative by
affinity or consanguinity up to the second degree" is not clear and needs revision. Article 153
prohibited an appeal on issues of fact but there has to be an appeal right on factual issue as
well. The appeal right mentioned under Article 154 should also include questions of fact as well.
There should not be severance payment to workers who reach the age of retirement in
accordance to Article 39 (1) and proclamation No 494/2006. Because there is a new pension
proclamation, i.e., Proclamation No 715/2011 that is designed for privately owned enterprises
and others. Moreover, the service year that qualifies a worker for severance payment should be
made 10 years instead of 5 years. 1