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Labour Standards in Ethiopian Labour Proclamation: Assessment of

Compliance with ILO Conventions

Research · April 2010

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 Labour Standards in Ethiopian Labour Proclamation:
Assessment of Compliance with ILO Conventions

Mekdes Tadele

Abstract
Labour standards play crucial role in protecting the interest of workers both at the
national and international level. As workers are by far weaker parties in labour
relationship, setting a minimum threshold, beyond which acting is prohibited, has
been considered by governments as an important means to protect workers. The need
to ensure workers’ safety, freedom and dignity, and the quest for the promotion of
peace and economic efficiency calls for protective labour standards. The standards
are set at the international level and incorporated in different instruments including
the ILO Conventions. In the context of Ethiopia, they are found in the Federal
Democratic Republic of Ethiopia Constitution and the Labour Proclamation (No.
377/2003). For a number of reasons, such as to attract foreign direct investment,
countries may set standards that fail to extend sufficient protection for workers. The
article in this regard examines the extent of protection available under domestic
legislations and assesses their compatibility with standards in the ILO Conventions,
which aim to bring universal and maximum protection for workers. Major labour
standards are identified and discussed in light of the Labour Proclamation and the
ILO Conventions in a comparative approach.

1. Introduction
The legal relationship between workers and employers bases itself on contract.
Freedom of parties to define their relationships on mutually agreed terms and
conditions is one of the central principles of contract law. A corollary to freedom of
contract is the understanding that parties can freely calculate the benefits and costs of
the agreement they reach. The intervention of the law is only to the extent necessary,
mostly to recognize the sanctity of contract and to ensure enforcement of its
provisions. This kind of legal arrangement seems to assume equality of negotiating
power between parties to the contract. The underlining reality in most, or even
sometimes all, labour relations would reveal the fact that workers are by far the
weaker parties if compared to their employers. The worker has to get a job even in a
scenario where she or he thinks that the terms and conditions that the employer put for
agreement are totally unfair. This hypothesis would be more true in a situation where
the scale of unemployment is high, and where there are a number of competitors who
are looking for a job. In these kinds of factual situations, employers would be in a
much better position than their employees and can manipulate their bargaining power.
The logical conclusion to the above premises would be, though there is still freedom
of contract in a labour relationship, a number of economic and social factors take
away the real freedom of workers.
The state, in its role to create a level playing field for parties to the transaction, must
intervene in labour relationships. Protection of labour rights has multi-faceted purpose


LL.B. (Addis Ababa University), LL.M. (Utrecht University, The Netherlands), PhD Candidate
(University of Warwick, UK): Lecturer in Law, Bahir Dar University, School of Law

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ranging from ensuring the safety, freedom, and dignity of workers, to promoting
industrial peace and economic efficiency. The veracity of this statement can be shown
by looking at the emergence and development of most labour standards. Labour
standards, both at international and national level, develop as a response for different
social, economical, and political concerns. The development of domestic labour
standards can be traced back to the industrial revolution. During this period, the need
to protect workers and to ensure equality for all arose when the human cost of
industrialization became noticeable. The genesis of international labour standards, on
the other hand, is associated with the First World War. At the end of the War, the
need for international stability, industrial peace and social order were the main
focuses of attention. 1 The establishment of international labour standards was taken
as one of the various ways to ensure world peace; and this instigated the coming into
reality of International Labour Organization (ILO). Following this, universal sets of
international standards were established.

The globalization of the world and the consequent growth in the world economy
necessitates the development and promotion of labour standards with the view to
protect the right of workers and ensure industrial peace. In this connection, the role
the International Labour Organization (ILO) plays is significant in response to what
the prevailing reality demands. The ILO, as a predecessor 2 of most modern human
rights systems, laid down the foundation for specific area of human rights that are
incorporated latter in the Universal Declarations of Human Rights (UDHR).3
Subsequently, the ILO strengthens its function of developing and promoting standard-
setting in various areas concerning labour relations. In this context, ILO has set four
principles concerning the “fundamental rights” of workers under the 1998 Declaration
on Fundamental Principles and Rights at Work. These include freedom of association
and the right to collective bargaining; freedom from forced labour; abolition of child
labour; and non-discrimination in respect of employment and occupation.4 These
labour rights are considered to be “core labour standards”.5 All member states of the
ILO, regardless of the type of specific labour Convention they ratified, are bound by
the core labour standards. Pursuant to Article 2 of the ILO Declaration 1998, the
obligation arises from the very fact of membership in the organization. It is based on
the idea that members joined the ILO voluntary; and by doing this, they, expressly or
implicitly, endorsed the principles and rights set out in the ILO Constitution and in the
Declaration of Philadelphia, in case of abolition of child labour.6 Labour rights,
however, are not limited to the above mentioned four standards. Apart from the core

1
Breining-Kaufmann,Christine, Globalisation and Labour Rights: The Conflict between Core Labour
Rights and International Economic Law, Studies in International Trade Law: Volume 5, Hart
Publishing, Portland, 2007, P. 49 [ hereinafter Breining-Kaufmann, Globalisation and Labour Rights];
See also Blanpain, Roger & et al, The Global Workplace; international and comparative employment
law –cases and materials, Cambridge University Press, Cambridge, 2007, pp. 53-55 [hereinafter
Blanpain, The Global Workplace; international and comparative employment law ]
2
See Section 2.2 of this article.
3
Valticose, Nicolas, International Labour Standards and Human Rights: Approaching the year 2000,
International Labour Review (135), V.137, No.2, 1998, p. 136.
4
ILO Declaration on Fundamental Principles and Rights at Work, (hereinafter ILO Declaration 1998),
June 1998 art. 2.
5
Alston, Philip (ed.), Labour Rights as Human Rights, 2005, p. 3, [hereinafter Alston, Labour Rights
as Human Rights]
6
ILO Declaration 1998, art. 1.

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labour standards, the ILO, through numerous of its Conventions and
Recommendations, has developed a number of other standards.
At the domestic level, countries adopt the ILO standards or develop their own
standards that they found to suit the prevailing realities in their jurisdictions. The
details and scope of protections that domestic labour laws provide to workers differ
from one country to another. A number of factors contribute to such differences, such
as perception by state policy makers that strict labour standards can weaken the
country’s potential to attract foreign direct investment (FDI). The veracity of this
perception has been criticized by writers in the academia. This perception, however,
serves as a predominant factor in designing labour standards in most developing
countries in particular.7
The objective of this article is to examine the Ethiopian labour standards and to assess
their compliance with standards set in the ILO Conventions8. The ILO conventions
ratified by Ethiopia are part and parcel of the law of the land by virtue of article 9(4)
of the FDRE Constitution. Given this fact, one may wonder if there is a need to make
assessment of the compliance of the labour standards in domestic labour legislations
with ILO Conventions. One may argue that the ILO Conventions, once ratified, can
be invoked before court of law in the same way as any other domestic legislation in
order to assert one’s right.9 However, it should not be overlooked that countries are
required to take further measures at the national level to bring their domestic labour
legislations in line with international standards. One of the deriving forces which
called for the issuance of proclamation 377/2003, as explicitly reflected in its
preamble, is the need to achieve conformity with international conventions that the
country has ratified. It is stated in the relevant part of the preamble that “it has been
found necessary to revise the existing Labour law ... in conformity with the
international conventions and other legal commitments to which Ethiopia is a

7
Kucera, David, Core Labour Standards and Foreign Direct Investment, International Labour Review
(31), Vol. 141, No. 1-2, 2002, p. 34.
8
Forced Labour Convention, 1930 (No. 29); Freedom of Association and Protection of the Right to
Organize Convention, 1948 (No. 87); Right to Organize and Collective Bargaining Convention, 1949
(No. 98); Equal Remuneration Convention, 1951 (No. 100); Abolition of Forced Labour Convention,
1957 (No. 105); Discrimination (Employment and Occupation) Convention, 1958 (No. 111); Minimum
Age Convention, 1973 (No. 138); and Worst Forms of Child Labour Convention, 1999 (No. 182) are
categorized as fundamental ILO Convention. These Conventions are ratified by Ethiopia. See Section 2
of the article. These Conventions are among the main Conventions to be discussed throughout the
article.
9
There are three main types of usage by courts of law in different jurisdictions regarding international
instruments, including ILO Conventions. These are (i) “statute-like” application; (ii) use for the
purpose of interpretation of national law; or (iii) as a source for the development of judicial principles.
The approach which is being followed by our courts requires an in-depth research; and it is beyond the
scope of this article to make such research. See Thomas, Constance & et al, The use of international
labour law in domestic courts: Theory, recent jurisprudence, and practical implications, pp. 268-278,
at WWW < http://training.itcilo.org/ils/materials/thomas-oelz-beaudonnet-en.pdf > , (Consulted 20
March 2010). It is also noted that some provisions contained in international labour Conventions are
not sufficiently determined in order to be directly enforced by national authorities. Others require the
setting up of administrative mechanisms or other measures such as sanctions to be effective. In
addition, many ILO Conventions explicitly require the adoption of further laws and regulations. Ibid.
See also Robyn Layton, When and How can Domestic Judges and Lawyers use International Law in
Dualist Systems, at WWW
<http://training.itcilo.it/ils/CD_Use_Int_Law_web/Additional/Library/Doctrine/Dualist%20Systems_L
ayton.pdf> , (Consulted 20 March 2010).

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party....” The ILO Conventions ratified by Ethiopia are among the international
commitments to which the Proclamation aimed to bring conformity. One of the major
objectives of the writer of this article is to make assessment on the scale of
harmonization and compliance made through the labour proclamation. Reflection will
be made on current developments in labour standards at the international level. The
article also has the objective to recommend improvements that need to be made in the
Ethiopian labour law regime in a manner that may promote more protection of labour
rights without affecting the country’s competitive advantage and jeopardizing the
country’s potential to attract FDI. With this objective in mind, the core labour
standards are among the area of focus in this article based on the relative importance
they have. In addition, based on the significance that they have in the life of workers,
such labour standards as working hours, paid leave, fair payment, and protection
against unfair dismissal are discussed.

2. The ILO and International Labour Standards

The ILO emerged with the League of Nations from the Treaty of Versailles in 1919.
“It was founded to give expression to the growing concern for social reform after
World War I and the conviction that any reform had to be conducted at an
international level”.10 Following this global conflict, social justice was seen as a
prerequisite for the maintenance of peace. It was with this understanding that the
organization was vested with the mandate to promote social justice. This is reflected
in the Preamble of the ILO Constitution which begins with and states:

“whereas universal and lasting peace can be established only if it is

based upon social justice; And whereas conditions of labour exist
involving such injustice, hardship and privation to large numbers of
people as to produce unrest so great that the peace and harmony of the
world are imperiled; and an improvement of those conditions is urgently
required.”
In 1999, ILO’s mission in today’s world was expressed by the Director-General of the
ILO, Juan Somaviain, in the following terms:

The ILO mission is to improve the situation of human beings in the

world of work. Today, that mission finds resonance in the widespread
preoccupation of people at times of great change: to find sustainable
opportunities for decent work. The primary goal of the ILO today is to
promote opportunities for women and men to obtain decent and
productive work, in conditions of freedom, equity, security and human
dignity.11
In order to enable ILO achieve its objectives, it was given the mandate to adopt
international labour standards as its principal means of action. The international
labour standards were the first tools developed by the ILO to implement its mandates.
Today, these tools remain the most important means that the Organization has at its

10
International Labour Organization, at WWW < www.ilo.org> (consulted 10 August 2009)
11
ILO, Decent Work, Report of the Director-General, International Labour Conference (ILC), 87th
Session, Geneva, 1999, p. 3, [hereinafter ILO, Decent Work]

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disposal to achieve its objectives.12 The ILO’s mandate to promote social justice and
international labour standards, through all the means available to it, was affirmed by
the International Labour Conference at its 97th session in 2008.

Since its establishment, ILO has developed a system of international labour standards.
These standards are aimed at promoting opportunities for women and men to obtain
decent and productive work, in conditions of freedom, equity, security, and dignity.13
In the world of globalization, international labour standards, such as occupational
safety and health; freedom of association; fair payment, and protection against
discrimination are important components for ensuring that the growth of the global
economy provides benefits to all.14 “They are the legal component in the ILO’s
strategy for governing globalization, promoting sustainable development, eradicating
poverty, and ensuring that people can work in dignity and safety.”15 They ensure a
level playing field in the global economy; and help to avoid temptation on the part of
governments and employers to lower labour standards in the belief that this could give
them a greater comparative advantage in international trade and to attract foreign
direct investment.
The ILO has developed international labour standards in several Conventions and
Recommendations. Conventions are legally binding international treaties. In other
words, they create obligations on member states once ratified. Recommendations, on
the other hand, serve as non-binding guidelines. Conventions, in most cases,
incorporate the basic principles to be implemented by ratifying countries, while
Recommendations supplement Conventions `by providing more detailed
guidelines.’16 However, some Recommendations could also be ‘autonomous’ in the
sense that they may not relate to any Convention.17

Conventions and Recommendations are drawn up with the participation of

governments, representatives of workers and employers’ organizations18, and adopted
at the ILO annual International Labour Conference, which creates a tripartite

12
It was expressed by the Director General in 2001 that “...standards are a stern indicator of progress
towards the achievement of ILO objectives, not through lip-service but in law and practice.” See ILO,
Reducing the Decent Work Deficit – A Global Challenge, Report of the Director General, International
labour ILC, 89th Session, Geneva, p. 59 [hereinafter ILO, Reducing the Decent Work Deficit – A
Global Challenge]; The ILO has four principal strategic objectives: (1) to promote and realize
standards, and fundamental principles and rights at work; (2) To create greater opportunities for women
and men to secure decent employment; (3) To enhance the coverage and effectiveness of social
protection for all; (4) To strengthen tripartism and social dialogue. See International Labour
Organization, at WWW < www.ilo.org > (Consulted 10 August 2009)
13
Introduction to International Labour Standards, at WWW
<http://www.ilo.org/global/What_we_do/InternationalLabourStandards/Introduction/lang--
en/index.htm> (Consulted 3 June 2008)
14
Ibid.; See also International Labour Organization (ILO), Rules of the Game: A Brief Introduction to
International Labour Standards, 9th ed., ILO, Geneva, 2009, pp.10-13, [hereinafter ILO, Rules of the
Game]
15
Id., p. 9
16
See Conventions and Recommendations, at WWW < www.ilo.org >(Consulted 3 June 2008)
17
Ibid.
18
Employers’ organizations also refer to the business community. Thus the business community plays
a role in the development of the international labour standards. They are parties to the tripartite
relationship.

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relationship.19 The participation of all three parties in the development of international
labour standards has its own benefits. Since they develop the standards through
consultation and incorporation of opinions from diverse parties, the norms result in a
certain degree of ‘dynamism’ and ‘universality’.20 The role ILO plays in this regard is
encouraging tripartism among member states through promoting social dialogue in
order to help design and implement national policies.21 It assists governments,
employers’ and workers’ organizations to adopt labour laws that enable them to cope
up with changing economic and social needs, and improve labour administration.
Some of the ILO Conventions have application only to workers in specific sectors. A
number of exceptions also exist in the Conventions. As any international instrument,
the ILO Conventions provide different obligations on states which include the duty to
fulfill, respect and enforce the rights in international labour standards. They also
include provisions that create rights and obligations to employers, employees, and
their representatives.
The Conventions adopted at the International Labour Conferences must pass through
a ratification process and be enacted in to relevant national legislation by competent
organs of member states. Member states that have ratified the Conventions are
obliged to prepare reports on the compliance of obligations under each Convention
they ratified according to a periodic reporting schedule.22 The reports will be
examined by an independent body of experts (known as the Committee of Experts on
the Application of Conventions and Recommendation).23 This helps to ensure the
application of standards in national laws. There are also special supervisory tools that
examine complaints against member states on specific allegations in relation to
violations of a Convention they have ratified.24 When such compliant is made against
19
See International Labour Office (ILO), Fundamental rights at work and International Labour
Standards, ILO, Geneva, 2003, p.1, [hereinafter ILO, Fundamental rights at work and International
Labour Standards]. Representative employers' and workers' organizations play an essential role;
they participate in choosing subjects for new ILO standards and in drafting the texts; their votes can
determine whether or not the International Labour Conference adopts a newly drafted standard. After
the adoption of the convention, they can encourage a government to ratify it. See WWW
<http://www.ilo.org/global/What_we_do/InternationalLabourStandards/Introduction/use/lang--
en/index.htm > (consulted 14 July 2008)
20
Ibid. see also Humblet, M. & et al, International Labour Standards: a global approach, 1st ed., ILO,
Geneva, 2002, p. 3, [hereinafter Humblet, International Labour Standards: a global approach]:
“ILO standards themselves are characterized by two features. In the first place, they are universal, as
they are intended to be applied in all member States of the Organization. On the other hand, and as a
counterpart, they possess certain flexibility.”
21
It is defined by the ILO that social dialogue includes all types of negotiation, consultation and
exchange of information between, or among, representatives of governments, employers and workers
on issues of common interest, Tripartism, at WWWW
<http://www.ilo.org/global/About_the_ILO/Structure/tripartism/lang--en/index.htm > (Consulted 13
July 2008); see also Humblet, Supra 19, p. 2
22
ILO, Supra 19, p. 2; see also International Labour Organization (ILO), Guide to International
Labour Standards, ILO, Geneva, 2008, pp. 1&2 [hereinafter ILO, Guide to International Labour
Standards].
23
Ibid. See also International Labour Standards, at WWW
<http://www.ilo.org/global/What_we_do/InternationalLabourStandards/index.htm >(Consulted 3
July 2008).
24
Ibid. “Both workers’ and employers’ organizations can initiate representations for violations of ILO
conventions in accordance with procedures under article 24 of the ILO Constitution. Employer and
worker delegates to the International Labour Conference, [member state which ratified the same
Convention and Governing Body] can also file complaints against member states under article 26 of
the Constitution.”

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a member state a Commission of Inquiry, whose responsibility is to carryout full
investigation of the compliant, assert all the facts of the case, and make
recommendations to be complied by the state, will be established.25 If the state refuses
to fulfill the recommendations of the Commission, the Governing Body can take
action it deems appropriate pursuant to the power vested up on it by article 33 of the
ILO Constitution.26
Among the ILO Conventions to be dealt with in this article, Ethiopia ratified the
following; Weekly Rest (Industry) Convention, 1921 (No. 14); Forced Labour
Convention, 1930 (No. 29); Freedom of Association and Protection of the Right to
Organize Convention, 1948 (No. 87); Right to Organize and Collective Bargaining
Convention, 1949 (No. 98); Equal Remuneration Convention, 1951 (No. 100);
Abolition of Forced Labour Convention, 1957 (No. 105); Weekly Rest (Commerce
and Offices) Convention, 1957 (No. 106); Discrimination (Employment and
Occupation) Convention, 1958 (No. 111); Minimum Age Convention, 1973
(No. 138); Occupational Safety and Health Convention, 1981 (No. 155); Termination
of Employment Convention, 1982 (No. 158); and Worst Forms of Child Labour
Convention, 1999 (No. 182).27

2.1. What are labour Standards?

Some define a “labour standard” simply as “a minimum working condition to which
all employers in a given jurisdiction must adhere”.28 Richard N. Block defines them in
the following way;
A labour standard is any governmentally established procedure, term or
condition of employment, or employer requirement that has, as its
purpose, the protection of employees from treatment, at the workplace,
that society considers unfair or unjust. The common element across all
standards is that they are mandatory – they are governmentally imposed
and enforced. Employer failure to comply with the standards brings
legal sanctions upon the employer. This provides the universal or
potentially universal coverage that is needed. There may be statutory
exclusions, but these can be accounted for and estimated.29
Accordingly, in order to be considered labour standards, the standards must be: (1)
governmentally created and enforced; (2) designed to affect or regulate workplace
transactions for all or almost all employees in the political jurisdictions studied; (3)
generally comparable in purpose and administration across jurisdictions studied such
that a fair comparison can be made; and, (4) have been adopted or could reasonably

25
Complaints, at WWW
<http://www.ilo.org/global/What_we_do/InternationalLabourStandards/ApplyingandpromotingInter
nationalLabourStandards/Complaints/lang--en/index.htm > (Consulted 28 July 2008).
26
Ibid.
27
List of the ILO Conventions ratified by Ethiopia is available at WWW
<http://webfusion.ilo.org/public/db/standards/normes/appl/Appl-
byCtry.cfm?hdroff=1&CTYCHOICE=0780&Lang=EN > (Consulted 21 June 2008).
28
Kusera, David (ed.), Qualitative Indicator of Labour Standards: Comparative Methods and
Applications, Social Indicators Research Series, Volume 30, Springer, Dordrecht, 2007, p. 28,
[hereinafter Kusera, Qualitative Indicator of Labour Standards: Comparative Methods and
Applications]
29
Id., pp. 28&29

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be adopted in all jurisdictions.30 The measurement employed here does not rely on a
universal benchmark such as ILO Conventions.
Generally, the ILO Conventions are used as benchmarks to measure the levels of
labour standards across countries. Some writers use the number of “core” or
“fundamental” ILO Conventions ratified- their ratification or non-ratification as
indicator of “the worker-right gap” in a country.31 Others add as measurement the
adherence through the ILO’s internal complaint procedure.32
ILO conventions are internationally recognized documents. Ratification and
compliance with them is a voluntary action of a country; through this, countries
express their willingness to provide protection to workers. Though not all countries
have similar capacities to implement ratified Conventions, they assist in bringing
about universalism across jurisdictions. Ofcourse, a mere ratification of the ILO
Conventions in itself cannot be taken as conclusive measurement. The fact that a
country ratified less number of ILO Conventions than what other countries, does not
necessary imply that it has lower level of labour standards.33 Thus, it is important to
examine domestic laws that regulate the employment relationship. The writer found
this approach appropriate and employed it in this article. Accordingly, focus will be
made on selected areas of protection; and assessment will be made in light of the ILO
Conventions.

2.2. Labour standards and human rights

The existence of interrelation between labour standards and human rights is beyond
doubt. However, issues such as the extent to which labour standards, both at the
domestic and international level (in most cases these standards take a right-based
approach), are part and parcel of human rights per se are often raised.34 The answer
to the issue demands a comprehensive examination of the nature and content of major

30
Id., pp. 28-30.
31
Id., pp. 46 &47; Fundamental ILO Conventions cover subjects that are considered as fundamental
principles and rights at work: freedom of association and the effective recognition of the right to
collective bargaining; the elimination of all forms of forced or compulsory labour; the effective
abolition of child labour; and the elimination of discrimination in respect of employment and
occupation. Include: Freedom of Association and Protection of the Right to Organise Convention, 1948
(No. 87) ; Right to Organise and Collective Bargaining Convention, 1949 (No. 98) ; Forced Labour
Convention, 1930 (No. 29); Abolition of Forced Labour Convention, 1957 (No. 105) ; Minimum Age
Convention, 1973 (No. 138); Worst Forms of Child Labour Convention, 1999 (No. 182); Equal
Remuneration Convention, 1951 (No. 100); Discrimination (Employment and Occupation)
Convention, 1958 (No. 111). See, at WWW < www.ilo.org > (Consulted 15 June 2009)
32
Kusera, Supra 28, pp. 46 & 47
33
“Many less developed countries have ratified more ILO Conventions than the U.S. Yet, even with its
low level of labour standards relative to Canada, the EU and other developed countries, it is not
reasonable to believe that that the U.S. has lower standards than many less developed countries broad-
based measure was necessary.” See, Id., p. 47
34
Valticose, Supra 3, p.135; Petersmann, Ernst-Ulrich, The ‘Human Rights Approach’ Advocated by
the UN High Commissioner for Human Rights and the International Labour Organization: Is it
Relevant for WTO law and Policy?, Journal of International Economic Law (605) Vol. 7, No.3,
2004, pp. 617-618 [hereinafter Petersmann, The ‘Human Rights Approach’ Advocated by the UN
High Commissioner for Human Rights and the International Labour Organization: Is it Relevant for
WTO law and Policy?]

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labour standards, as incorporated in the ILO Conventions, and international human
rights norms, as included in the International Bill of Rights35.
The ILO Conventions provide various labour standards which can be asserted by
workers as of right in countries where these Conventions are ratified. The emergence
of industrialization and the consequent increase in the number of workers brought
about humanitarian, political and economic concerns.36 The then prevailing bad
working conditions and exploitations of workers witnessed the fact that it was
difficult to bring about world peace and stability without improving working
conditions for workers. Apart from this, countries that adopt social reforms may find
themselves in a disadvantageous position compared to those other countries that failed
to do so because of the cost associated with those reforms.37 These concerns gave rise
to the establishment of the ILO as part of the treaty of Versailles that ended World
War I. Therefore, the ILO, established in 1919, predates most international human
rights norms that are incorporated in major human rights documents. The Universal
Declaration of Human Rights (UDHR) includes some important labour rights which
are also incorporated in the ILO Conventions. Freedom to establish and/or join a trade
union, non-discrimination among workers based on sex, race, religion, nationality etc,
fair payment, and working hours are incorporated in the UDHR.38 The International
Covenant on Economic, Social and Cultural rights (ICESCR) incorporates important
labour rights such as minimum wage, occupational safety and health, the right to form
or join a trade union, non-discrimination etc.39 Moreover, the International Covenant
on Civil and Political Rights (ICCPR) provides, among other things, abolition of
forced labour;40 and the right to association including to form and join trade union.41
In general, the standard-setting work of the ILO has long been related to the UN
human rights system. Many of the rights enshrined in the early ILO Conventions
provide language for the ICESCR and ICCPR.42 The facts that those rights are
incorporated in the major human rights documents lend support to the argument that
labour rights (standards), to the extent that they are included in those documents,
constitute part and parcel of human rights per se.
Labour standards as incorporated in the ILO Conventions and major international
human rights documents share not only the essence of their inspiration and objectives,
but also have similarity in the context in which they were created. 43 The standards in
the ILO Conventions took their primary shape following the end of First World War
while the standards in the major human rights documents were crafted at the end of
35
International Bill of Rights refers to the Universal Declaration of Human Rights (1948); International
Covenant on Civil and Political Rights (1966); and International Covenant on Economic, Social and
Cultural Rights (1966).
36
International Labour Organization, The ILO: what it is. What it does?, at WWW
<http://www.ilo.org/wcmsp5/groups/public/---dgreports/---dcomm/---
webdev/documents/publication/wcms_082364.pdf > (Consulted 24 July2008); See also ILO,
Fundamental Human Rights at Work and International Labour Standards , pp. 1-3.
37
Id., see also ILO Constitution, Preamble.
38
See Universal Declaration of Human Rights, Dec. 10, 1948, art. 23 &24, [hereinafter UDHR].
39
See International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, art. 7 & 8,
[hereinafter ICESCR].
40
International Covenant on Civil and Political Rights, Dec. 16, 1966, art. 8.3, [hereinafter ICCPR]
41
Id., art. 22.
42
Mertus, Julius A., The United Nations and Human Rights: A guide for a new era, Routledge Tylor &
Francis Group London, New York, 2005, p. 142, [hereinafter Mertus, The United Nations and
Human Rights A guide for a new era]
43
Valticose, supra 3, p. 136.

-9-
the Second World War with a view to build a better world. 44 The fact that the ILO
(the principal organ for the setting of international labour norms) and the UDHR (the
first international instrument of its kind) came out to mark the end of the two world
conflicts speaks out their convergence.
The categorization of human rights in to individual and collective rights also show the
convergence of the body of rights contained in the International Bill of Rights and
those in the ILO Conventions. For example, prohibition of forced labour is contained
both in the International Bill of Rights and in the ILO Conventions.45 The very
important essence of this right lies on the fact that it is one of those individual rights
enjoyed by a person without necessarily joining any group. On the other hand, the
right to association or to form and join a trade union, provided both in the
International Bill of Rights and the ILO Conventions,46 is meaningfully exercised
only in group; therefore, it is a collective right. Apart from this, the International Bill
of Rights provides obligations mainly towards states in a similar way as the ILO
Conventions incorporate different obligations towards states. The later, however,
contain numerous obligations addressed to employers and also workers.
All the above premises lead to the inference that the body of rights contained in the
ILO Conventions, on one hand, and the Bill of Rights, on the other hand, are not
isolated and independent rights. Rather they are mutually supportive in the sense that
those labour rights constitute a special body of human rights. They are special merely
because they are to be exercised and enjoyed by that category of persons called
workers. Apart from this, workers’ rights protected in the ILO Conventions and those
in the Bill of Rights are meant to be exercised by human persons strengthen the
conclusion that those labour rights are human rights. The logical extension of the
above conclusion may be that states are obliged to work towards the realization of
fundamental labour rights, especially those covered by the major human rights
documents, not only because they are contained in the ILO Conventions, but also
because they are subsumed into the major human rights documents.

2.3. Labour Standards and Inflow of Foreign Direct Investment

Recently, it became part of everyday news headlines to hear that countries conclude
bilateral investment agreements to promote the FDI. Although there is no multilateral
investment treaty comparable to the international trade agreements under the auspices
of the world trade organization (WTO), there are a number of regional arrangements
on the field such as in the Northern America Free Trade Agreement (NAFTA)47 and
The Association of South East Asian Nations (ASEAN).48 Especially important in the
area of foreign direct investment is the exponential increase in bilateral investment
treaties (BITs) concluded between countries across the globe. For example, there have

44
Ibid.
45
Forced Labour Convention, 1930(No. 29); ICCPR, art.8 & UDHR, art.4.
46
Freedom of Association and Protection of the Right to organize Convention, 1948 (No. 87), and the
Right to organize and Collective Bargaining Convention, 1949(No. 98).
47
See North America Free Trade Agreement Chapter 11, at WWW < http://www.nafta-sec-
alena.org/DefaultSite/index_e.aspx?DetailID=160 > (Consulted 7 July 2008).
48
See The ASEAN Agreement for the Promotion and Protection of foreign Investment 1987 as
Amended by the 1996 Protocol, at WWW < http://www.aseansec.org/12813.htm> (Consulted 7 July
2008).

- 10 -
been concluded 2500 BITs until the year 2005, and the number is still increasing.49
Countries exert their endeavors and provide considerable incentives in order to attract
as a number of FDI as possible. Numerous advantages have been attributed to the
inflow of FDI. These advantages, among other things, include: technology transfer to
the host country through the import, by investors, of machineries, training of local
personnel; provision of employment opportunities to local residents; inflow of foreign
capital, etc.50 The cumulative effect of all these will bring about increase in the Gross
Domestic Product (GDP), which, in turn, leads to economic growth and
development.51

The substantial increase in the flow of FDI stimulates academicians and policy-
makers to see the flip side of the same coin. Issues with particular importance to the
host country and its people relate to the social and environmental cost of FDI.
Especially important to this part of our discussion is, whether flow of FDI and labour
standards are friends or foes. There are plenty of arguments that there is always a
negative relationship between adoption and enforcement of strict labour standards and
inflow of foreign capital.52 Stating the argument in very simple phrase, the stricter the
country’s labour standards, the lesser that country’s chance to attract FDI and vice
versa. Adherents of this line of argument express the link between stricter labour
standards and cost of production of goods and provision of services. For example, in
a country where the minimum salary of a worker is higher, the employer (the
investor) has to incur more labour cost which increases production cost. Especially,
when the goods produced in countries with strict labour standards are meant to be
exported to international market, the investor will be in a more disadvantageous
position than other country’s producers with less strict labour regulation.53 The latter
may offer their products with lesser price; and they can still get reasonable marginal
profit because the cost of their production is less. The natural conclusion of this
premise is that foreign investors always prefer countries with weaker labour
protection.
A number of states, especially developing countries, design their labour standards
with the assumption of the above conclusion.54 Since the important role that FDI plays

49
UNCTAD, FDI and Developing and Transition Economies: Implications for Development, World
Investment Report 2006, at WWW < http://www.unctad.org/en/docs/wir2006_en.pdf> (Consulted 5
July 2008).
50
Sornarajah, M., The International Law on Foreign Investment, Cambridge University press,
Cambridge, 2004, pp. 51-52. In this respect, the role of multinational companies (MNCs) in bringing
about the above mentioned positive aspect of FDI is worth mentioning. For example, MNCs, mainly
from developed countries, account for 84% of the total flow of global FDI in the year 2006. See
UNCTAD, Widespread Growth of Foreign Direct Investment Reported for 2006: Press release
(UNCTAD/PRESS/PR/2007/02916/10/07), at
WWW<http://www.unctad.org/Templates/Webflyer.asp?docID=9100&intItemID=2068&lang=1>
(Consulted 4 July 2008). According to the UNCTAD report, in 2002, MNCs employed more than
one-fifth of the global work force in the non-agricultural sector. See Whyman, P. & et al, Labour
Market Flexibility and Foreign Direct Investment, 2006, at WWW
<http://www.berr.gov.uk/files/file33254.pdf> (Consulted 7 June 2008).
51
GDP is the market value of all the final goods and services produced in a country during a year.
52
See Kucera, David, The Effect of Core Workers Rights on Labour Costs and Foreign Direct
Investment: Evaluating the “Conventional Wisdom”, pp. 2-6, at WWW
<http://www.ilo.org/public/english/bureau/inst/download/dp13001.pdf > (Consulted 4 July 2008).
53
Ibid.
54
See Sarna, Ritash, The Impact of Core Labour Standards on Foreign Direct Investment in East
Africa, 2005, p. 12, at WWW < http://www.jil.go.jp/profile/documents/Sarna.pdf > (Consulted 5 July

- 11 -
in the economic development of a country is not disputed, and in so far as weaker
labour protection is perceived to be catalyst for inflow of foreign capital, it is logical
to expect the scale of competition by states to attract more FDI by offering low labour
standards.55 Studies reveal the fact that many East Asian counties manage to attract
FDI, especially for those labour-intensive industries.56 Among these, China and
Vietnam are the most cited because of low labour standards with regard to minimum
wage.57 Therefore, cheap-labour, among other things, enables China and Vietnam to
attract more FDI.
The above line of argument encounters severe criticism from writers who insist that
there is no strong logical and factual support to the hypothesis that there is a negative
link between strict labour standards and flow of foreign investment. 58 According to
this line of argument, foreign investors pay more attention to other important factors
than the strictness or otherwise of the host country’s labour standards.59 Among
important determinants of flow of FDI, writers mention the country’s peace, political
and social stability, legislative environment, business prospect and existence of skilled
manpower (labour efficiency) as more valuable consideration than labour standards.60
It has been emphasized that protection of workers’ rights through fair labour standard
inevitably allows the important determinants of flow of FDI to exist, which in turn
assures sustainable flow of foreign capital.61 The fact that East Asian countries
manage to attract more FDI may not only be explicated by the fact that these countries
offer weak labour standard. Instead, important reasons for the region’s success in
attracting FDI were factors such as maintaining competitiveness through superior
technology, high levels of human capital, skilled labour force, agglomeration effects,
dynamic growth and the role played by the state in strategically allocating FDI in the
right sectors.62
Moreover, specific labour standards are singled out as having no relevance in the
decisions of investors to choose one country instead of another competing country.
For example, prohibition to non-discrimination between workers based on ethnic
background may not have any implication on the cost of production or other
competitive advantage. It is argued that only those standards which have something to
do with cost of production that may probably affect investors’ choice between
competing states.63 Even these factors should not be cited as the most important
determinant to the flow of FDI.

2008) [hereinafter Sarna, The Impact of Core Labour Standards on Foreign Direct Investment in
East Africa]
55
Id., p. 3.
56
Id., p. 28.
57
Oversees Development Institute, Foreign Direct Investment Flow to Low Income Countries: a
Review to the Evidence, Briefing Paper, 1997, at WWW
<http://www.odi.org.uk/Publications/briefing/3_97.html > (Consulted July 6, 2008).
58
See Sarna, supra 54, p. 12.
59
Ibid.
60
See Kucera, supra 52, pp. 9-10.
61
Ibid.
62
See Sarna, supra 54, p. 28.
63
Ibid.

- 12 -
The Ruggie Report of 2008 noted the incoherence between state policies to promote
investment and the protection of human rights.64 The thousands of BITs primarily
serve the purpose of protecting investors. Thus, owing to the binding complaint and
arbitration procedures, they considerably restrict the readiness of governments to raise
environmental, social and human rights standards. Agreements between host
governments and companies have mostly been concluded with commitment of
governments to freeze the existing legal framework to cover the entire period of the
agreement, which may be up to 50 years. If subsequent government’s standards
increase the production costs of companies, it can be interpreted as the expropriation
of future profits; and entail corresponding demands for compensation.65
In summary, it is safe to conclude that governments’ endeavor to attract more FDI
affect their decision on the scope and strength of labour standards in different
countries. In this connection, it has to be emphasized that nearly all countries try to
protect fundamental labour rights in parallel with their effort to attract more FDI.
However, it is equally important to note that the degree and extent of protection of
those rights vary from one country to another.

3. Labour Standards in the Ethiopian Legal System

Ethiopia had undergone through a socialist regime for almost two decades since 1974
until 1991 when another regime with market economy orientation took power. The
prevailing economic orientation of the socialist regime at that time may be explicated
by the fact that major enterprises were under state ownership; private investors were
discouraged to hold the means of production; and the flow of FDI was non-existent.
The then existing labour law was designed to reflect the prevailing labour relationship
between employees’ and state owned enterprises. The aftermath of the civil war, since
1991, saw a major paradigm shift in the political and economic orientation of the
country. The country’s economic system was designed on the model of market
economy; state owned enterprises have been privatized; private investors have been
encouraged to own means of productions; and the economic and political reforms
have been accompanied by flow of FDI and its subsequent increase. The reform
demanded the change in the labour law regime which had been used in the previous
political and economic context. Accordingly, Proclamation No. 43/ 1993 was issued
in the transitional period. This Proclamation, being found insufficient to regulate the
changing political and economic reality of the country, was replaced by Proclamation
No. 377/2003.66 An amendment has been made to very few provisions of this
Proclamation.67 It is in the context of this latter Proclamation, and the amendment
thereto, that this part of the article makes assessment on the labour standards of
Ethiopia.

64
Jens Martens, Problematic Pragmatism: The Ruggie Report 2008: Background, Analysis and
Perspective, 6 (June 2008), at WWW < http://www.cidse.org/docs/200806131044177469.pdf >
(Consulted 24 July 2008).
65
In this connection a research shows that the agreements between companies and governments of non-
OECD countries constrain the host State’s regulatory power more significantly than those signed with
OECD countries. Ibid.
66
Labour Proclamation, 2003, Proc. No. 377/2003, Fed. Neg. Gaz., Year 10, No. 12 (hereinafter
Proclamation No.377/2003).
67
Labour (Amendment) Proclamation , 2006, Proc. No. 494/2006, Fed. Neg. Gaz., No. 30 amended
Proclamation No. 377/2003 in areas of scope of application, Severance pay and Compensation,
procedure for collective bargaining. It also replaced Article 185 on common offences.

- 13 -
The writer of this article is of the belief that discussion on the sources of labour law in
Ethiopia would illuminate on the proper understanding of the country’s labour
protection. Labour rights, as part of human rights, are incorporated in the Constitution
of the Federal Democratic Republic of Ethiopia.68 The Constitution, being the
supreme law of the land, declares that no derogation can be made from its
provisions.69 Besides, the Constitution makes any international agreements ratified by
the parliament as part and parcel of the law of the land.70 The significance of this
provision, in the context of the discussion in this part, lies on the fact that the ILO
Conventions, which Ethiopia ratify,71 form part and parcel of the labour law of the
land as the latter falls under the phrase “international agreement”. In addition to this,
Proclamation No. 377/2003 to which reference has been made above serves as the
major source of labour law which defines the bulk of the rights and obligations of
workers and employers. The Proclamation makes a number of delegations to the
ministry of labour and social affairs to provide directives, on identified matters, to
supplement the provisions of the Proclamation. It can be said that Directives to be
issued by the ministry constitute source of labour law in Ethiopia. Besides, the labour
contract to be concluded between workers and employers individually or between
trade unions and employers through collective agreements serve as laws binding
between those parties subject to other laws. Therefore, this latter law has a supportive
role to other relevant labour laws.

As indicated from the outset, the main focus of this article is on the ‘core’ Ethiopian
labour standards including those standards that are fundamental to protect the rights of
workers.

3.1. Occupational Safety and Health

Proclamation No.377 provides several provisions related to occupational safety and
health standards. Some of these provisions lay down general and specific obligations
on employers while the rest provide rights of workers to be claimed from employers
or enforced unilaterally by employees. Obligations of employers concerning
occupational health include measures which help to prevent health risk and redress
mechanisms in situations where a health risk or an occupational injury occurs. As a
general rule employers shall take the necessary measure to safeguard adequately the
health and safety of workers.72 This obligation of employers is meant to prevent
probable health risk to workers. The first step to be taken by employers is to supply
their employees with the necessary instruction and information concerning the
hazards of their respective occupations and the precautions necessary to avoid
accident and injury to health (Article 92(2), Proclamation No. 377/2003). Similar kind
of obligation is also imposed on employers under the ILO Conventions.73 These are
believed to contribute to minimize risks on the safety and health of workers.

68
See the Constitution of the Federal Democratic Republic of Ethiopia, 1995, Proc. No. 1/1995, art. 42,
[hereinafter Ethiopian Constitution]
69
Id., art. 9 (1).
70
Id, art. 9 (4).
71
See Section 2 of this article for the list of ILO Conventions ratified by Ethiopia.
72
Proclamation No. 377/2003, arts. 92 & 12 (4).
73
Occupational Safety and Health Convention, 1981(No.155) [hereinafter Convention 155], art. 19(c)
(d) & (e); Chemical Convention, 1990 (No. 170) [hereinafterConvention 170], art. 15; & also
Convention on Safety and Health in Agriculture, 2001 (No. 184) [hereinafter Convention 184] art. 7(b).

- 14 -
Employers must provide their workers with protective equipment, closing and other
materials and instruct them of the use (Article 92(3), Proclamation No. 377/2003). As
clearly indicated under Article 21 of Convention 155, such costs and expenses rest on
the employer. In order to assure the health and safety of workers, it is necessary to
create work places and premises that do not cause health risk. Employers have
obligation to ensure that the work place and premises do not cause danger to the
health and safety of workers (Article 92(6), Proclamation No. 377/2003). Employers
must take appropriate precaution to ensure that all the process of work shall not be a
source or cause of physical, chemical, biological, and psychological hazards to the
health and safety of workers (Article 92(7), Proclamation No. 377/2003). ILO
Convention 155 and Convention 184 incorporate similar kind of obligations. The
Conventions state that chemical, physical and biological substances and agents used
under the control of the employer must be safe and risk-free to health of workers.74
Besides, employers must arrange, according to the nature of the work, at their own
expense for the medical examination of newly employed workers and for those
workers engaged in hazardous work, as may be necessary.75

With regards to chemicals, particularly, as stated under Article 10(1) and (2) of
Chemicals Convention, the employer must ensure that all chemicals used at work are
labeled or marked and that every necessary precaution must be taken when used. The
employer must carry out risk assessment activities and adopt the necessary preventive
and protective methods.76
An employee has numerous rights to exercise in relation to occupational health and
safety. An employee may refuse tasks given to him, if he is assigned to execute any
work which is hazardous to his life.77 An imminent risk to the health and safety of
employees may serve as good cause for them to cancel contract of employment even
with out prior notice. However, the danger must be imminent such as to threaten the
worker’s safety or health, and the employer failed, with the early warning given to
him by trade union or by the worker himself, to act with it after having been made
aware of such danger (Article 32(1) (b), Proclamation No. 377/2003). This reason of
termination of contract of employment by the employee is among the limited grounds,
under the Proclamation, of severance payment.78
The Proclamation provides special standards concerning occupational health and
safety for women. It is prohibited to employ women on type of work that are arduous
or harmful to their health.79 The issue is what are these arduous or harmful works?
The ministry of labour and social affairs is assigned by the Proclamation to provide

74
See Convention155, art. 16(1) (1); and Convention 184, art. 6(1).
75
Proclamation No. 377/2003, art. 92 (5).
76
Convention 184 art. 7(a); Convention 170, art. 12; and Convention 155 art. 16(3). The conventions
particularly state that the employer must provide, where necessary, adequate protective clothing and
equipment.
77
Proclamation No. 377/2003, art. 14 (1) (e); Similar kinds of rights are available under Convention
184 art. 8(3); Convention 170 art 18 (1). Workers are vested with the right to remove themselves
from a working environment where there is an imminent and serious danger to safety and health
due to failure on the part of the employer to carry out obligations related to occupational health and
safety.
78
See Proclamation No. 377/2003, art. 39 (1) (e).
79
Id., art. 87(2)

- 15 -
list of works which are considered to be arduous or harmful.80 The law gives special
attention to pregnant women. Pregnant women must be transferred to another place of
work if their job is dangerous owing to their special physical and health
circumstances.81

Owing to the failure of the employer to take preventive actions or regardless of any
effort by the employer to take such actions, occupational diseases or accidents may
occur. An employer is liable for occupational injuries and diseases sustained by his
workers.82 Occupational injuries include employment accident and occupational
diseases.83The liability of the employer, in relation to employment accidents and
occupational disease, is not limited to faults committed by him or his agent. He has
strict liability unless the injured person himself has caused the damage intentionally.84
The existence of intention on the part of an injured employee may be proved in terms
of non-obedience of express safety instructions; non-observance of the provisions of
accident prevention rule specifically issued by the employer; or reporting to work in a
state of intoxication that prevents him from properly regulating his body or
understanding. 85
The law provides detailed rules as to the calculation of the employer’s liability in case
of employment injury sustained by the employee. 86

3.2. Working Hours and Paid leave

3.2.1. Working Hours

As defined in the Conference of Labour Ministers held in London in 1926, “working

hours are the time during which persons employed are at the disposal of the employer
[and] do not include rest periods.”87 Proclamation No. 377/2003 provides detailed
provisions as to the maximum number of hours beyond which an employee may not
be required to work. As a general rule, normal hours of work shall not exceed eight
hours a day or forty-eight hours a week.88 The Proclamation authorizes the Ministry
of Labour and Social Affairs to issue Directive to reduce the normal hours of work for
economic sectors, industries or occupations where there are special conditions of
work. The reduction may not, however, entail reduction in the wages of the worker.89
It was also provided in the ILO Conventions that normal working hours should not

80
Ibid.
81
Id., art. 87(4)
82
Id. art. 95 (2).
83
Ibid.
84
See Id. art. 96.
85
Id., art. 96(2)
86
It generally includes obligation to cover expenses for hospitalization and medication, any necessary
prosthetic or orthopedic appliances, periodical payment or disablement pension or compensation.
See. Proclamation No. 377/2003, arts. 99-112.
87
International Labour Conference, Hours of Work: From Fixed to Flexible, Report III (Part 1B), 93rd
session, 1st ed., Geneva, 2005, p. 17, at WWW < www.ilo.org > (Consulted 7 June 2008).
88
Proclamation No. 377/2003, art. 61 (1). “Normal hour of work” means the time during which a
worker actually performs work or avails himself for work in accordance with law, collective
agreement or work rules. See also art. 61(2).
89
Id., art. 62

- 16 -
exceed eight hours within a day and 48 within a week.90 The weekly working hours
was gradually reduced to 40.91
Some circumstances may demand the undertaking to employ the service of its
employees beyond the normal hour of work. Employees of an undertaking may not
sometimes be willing to work overtime. The law provides detailed regulation of the
circumstances in which an employer can legally demand his employees to work
beyond the normal working hour. Article 67 provides an exhaustive list of
circumstances in which an employer may compel his workers to work overtime.
These circumstances are: where there is accident, actual or threatened; force majeure;
urgent work; and substitution of absent workers assigned on work that runs
continuously without interruption. However, it has to be noted that an overtime work
necessarily entitles the worker to overtime payment in addition to his normal wage
(Article 68, Proclamation No. 377/2003).

3.2.2. Paid Leave

Workers are entitled to several kinds of leave with payment.92 The first kind of leave
is a weekly rest period of twenty-four non-interrupted hours in the course of each
period of seven days. This right of workers is recognized under article 69(1) of the
labour proclamation. Several ILO Conventions entitle workers with the same kind of
right.93 This period of weekly rest has to be granted to the whole staff of each
enterprise simultaneously and coincide with the days already established by the
traditions or customs of the country or district.94 The days and hours of weekly rest
must be known to workers either through notice posted in the establishment or by
other special means.95

According to Article 71(1) of the labour Proclamation, a worker may not be

compelled to work on his weekly rest period unless there is a necessity situation to
avoid serious interference with the ordinary working of the undertaking due to
accident, force majeure and urgent work.

The second category of leave is public holiday under the relevant law. Workers are
also entitled for annual leave. As a general rule, the Proclamation provides that every
worker is entitled to uninterrupted annual leave with pay which in no case may be less
than fourteen days for the first year of service (Article 77(1) (a), Proclamation No.
377/2003). The fourteen days period is to increase by one day for every additional
years of service.96 Pursuant to Article 76, the right of workers to annual leave can not
be waived by a contrary agreement between the worker and the employer; nor may an
employer pay wage in lieu of annual leave. Besides, a worker may not be recalled
before the expiry of his annual leave unless unforeseen circumstance dictated
otherwise (Article 80, Proclamation No. 377/2003).
90
Hours of Work (Industry) Convention, 1919 (No. 1) art. 2 & Hours of Work (Commerce and Office)
Convention, 1930 (No. 30) art. 3.
91
Forty-hour week Convention, 1935 (No. 47) art. 1.
92
See Proclamation No. 377/2003, arts. 69-86.
93
Weekly Rest (Commerce and Offices) Convention, 1957 (No. 106) [hereinafter Convention 106], art.
6(1), & Weekly Rest (Industry) Convention, 1921 (No. 14) [here in after Convention 14], art. 2(1).
94
Convention 106 art 6(2) & (3) & Convention art. 142(2) & (3).
95
Convention 14, art. 7.
96
Proclamation No. 377/2003, art. 77 (1)(b).

- 17 -
The law also provides sick leave when the worker fall sick or sustains injury. The
length of sick leave may extend to six consecutive or interrupted months in any
twelve calendar years.97 However, the entire period of sick leave may not necessarily
be accompanied by payment of the worker’s salary. 98 Finally, the law provides special
leave for different reasons, such as conclusion of marriage; social performances etc
(Article 81, Proclamation No. 377/2003).

3.3. Protection against Discrimination

Equal opportunity between and non-discrimination among employees is a principle
incorporated in a number of modern labour legislations and acts. Workers may be
subjected to discrimination based on numerous grounds which may include
nationality, sex, religion, political outlook and race. The Ethiopian Labour
Proclamation provides several provisions dealing with non-discrimination. Article 14
of the Proclamation provides list of behaviours which constitute unlawful act on the
part of an employer. Some of these behaviours are discrimination between workers on
the basis of nationality, sex, religion, political outlook or any other conditions.
Similarly, Convention No. 111, under Article 2, establishes the principle of equal
opportunity and treatment in respect of employment and occupation, with a view to
eliminate discrimination.99 For the purpose of this Convention, discrimination is
defined to include, but not limited to “…any distinction, exclusion or preference made
on the basis of race, color, sex, religion, political opinion, national extraction or social
origin, which has the effect of nullifying or impairing equality of opportunity or
treatment in employment or occupation”.100
Special emphasis is given under the Ethiopian Labour Proclamation to non-
discrimination against female workers, in matters of remuneration, on the ground of
their sex. This principle is clearly established under Equal Remuneration Convention,
1951 (No. 100). The kind of remuneration includes “… ordinary, basic or minimum
wage or salary and any additional emoluments whatsoever payable directly or
indirectly, whether in cash or in kind, by the employer to the worker and arising out of
the worker’s employment”.101
The Proclamation outlaws discriminatory treatment in case of termination and
reduction of employees based on any grounds such as the above mentioned factors.102
Where an employer terminates the contract of employment in contravention of the
non-discrimination provisions of the Proclamation, he shall be obliged to reinstate the
worker, unless the latter choose to leave his employment against compensation.103
In conclusion, it is not, however, clear whether the scope of the non-discrimination
clauses under the above provisions of the Labour Proclamation include equal

97
Id., art. 85(1)(2).
98
For example, an employee shall be paid the whole of his salary for the first month of the period of
sick leave; his wage shall decrease by half for the next two months; and he shall not be entitled to
any amount for the next three months. Proclamation No. 377/2003, art. 86.
99
Discrimination (Employment and Occupation) convention, 1958 (No. 111)[hereinafter Convention
111].
100
Convention 111, art. 1(a).
101
Convention 100, art. 1(a).
102
See Proclamation No. 377/2003, art. 26 (2) (a).
103
Id., art. 43(1).

- 18 -
opportunity and non-discrimination at the recruitment stage. On the bases of the
Labour Proclamation, it may be argued that the behaviour of an employer which
discriminates between individuals does not entail any liability unless the person who
claims to be discriminated is already employed by the employer. Because, Article
14(f) simply states the act of the employer which discriminates between workers is
illegal.104 If that person is already employed, the discrimination results in legal
consequences against the employer such as severance payment and compensation as
provided under article 39 and 43 of the Proclamation. It may be safe, therefore, to
conclude that the non-discrimination principle, as incorporated in Article 14, does not
include the recruitment stage. The only ground that the Proclamation outlawed
regarding discrimination at employment stage is sex. Article 87 (1) states that
“women shall not be discriminated against as regards employment and payment, on
the basis of their sex”. The ILO Convention 111, which Ethiopia has ratified,
however, took a different stand in this connection; it precludes discrimination in
relation to access to employment and occupation on any ground. 105 It is also
important to mention at this juncture that article 25 of the FDRE Constitution entitle
every one to the equal protection of law in all maters. In this regard, the proclamation
lags behind what the Constitution and Convention no.111 provide.

3.4 Fair payment and Minimum Wage

The Ethiopian Labour Proclamation, under Article 12(2), generally, provides the
obligation of the employer to pay wages and other emoluments in accordance with the
law and collective agreement. The law provides definition as to what kind of
payments constitute wage, execution of payment, time and place of payment, etc.106
According to article 59 of the proclamation, “the employer shall not deduct from,
attach or setoff the wages of the worker except where it is provided otherwise by law
or collective agreement or work rules or in accordance with a court order or a written
agreement of the worker”. The amount that is to be deducted from the worker’s wage
at any one time shall in no case exceed one-third of his monthly wages.

Protection of Wages Convention, 1949(No. 95) is one of the ILO Conventions that
deal with payment.107 It has the objective to guarantee the payment of wage in full and
timely manner. According to Article 14 of the Convention, workers have to be
informed about the conditions in respect of wages under which they are employed and
the particulars of their wages insofar as they may be subject to change. Wages has to
be paid regularly and directly to the worker under normal circumstances.108
Employers may not limit in any manner the freedom of the workers to dispose of their
wages.109 Deductions from wages may be permitted only under conditions and to the
extent prescribed by national laws or regulations, or fixed by collective agreement or

104
Art.14(f) prohibites discrimination between workers on the basis of nationality, sex, religion,
political outlook or any other conditions.
105
As stated under Article 1(3) of Convention 111, the terms employment and occupation include
access to vocational training, access to employment and to particular occupations, and terms and
conditions of employment.
106
See Proclamation No. 377/2003 arts. 53-60; art. 53(1) defines wage as ‘the regular payment to
which the worker is entitled in return for the performance of the work that he performs under a
contract of employment’.
107
This Convention is not ratified by Ethiopia.
108
Protection of Wages Convention, 1949(No. 95) art 12 & 5.
109
Id. art. 6.

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arbitration award, and must not be made for the purpose of obtaining or retaining
employment.110 In connection to this, workers have the right to get informed about the
conditions and the extent to which such deductions may be made.
It is very important to examine the issue of fair payment and minimum wage in light
of the relevant ILO rules and the Ethiopian labour law. The term minimum wage
represents;
minimum sum payable to a worker for a work performed or services
rendered, within a given period, whether calculated on the basis of time
or output, which may not be reduced either by individual or collective
agreement, which is guaranteed by law and which may be fixed in such
a way as to cover the minimum needs of the worker and his/her family,
in the light of national economic and social conditions.111
Minimum Wage Fixing Convention, 1970(No.131), which is not ratified by
Ethiopia112, establishes the obligation on member states to fix minimum wages. As
clearly indicated under Article 3 of this Convention, elements that could be taken into
account in determining the level of minimum wages are;
 the needs of workers and their families which can be determined by taking
into account the general level of wages in the country, the cost of living,
social security benefits, and the relative living standards of other social
groups; and
 economic factors, including the requirements of economic development,
levels of productivity and the desirability of attaining and maintaining a
high level of employment.

Once the minimum wage is fixed, having regard to the above elements, it will have
the force of law and employers who failed to apply will be held liable.113

At this juncture, it is important to raise the issue whether fixing minimum wage fulfils
the concept of fair payment directly? Fair payment is concerned with the idea that
workers should be entitled to appropriate and equivalent payment to the type of work
they carry out or for the service they have rendered. Minimum wage, as discussed
above, on the other hand, is about fixing a minimum amount of payment that should
be paid to a worker for a work performed or service rendered in light of social and
economical factors. It restricts the employer from paying the worker an amount of
wage which is less than what is fixed by the law. Thus, it is possible to say that
minimum wage has some element of fair payment. Fair payment, however, demands
more than just paying the minimum wage. The main ILO Conventions that deal with
wages do not have specific provision which provides workers’ entitlement to fair
payment.114

110
Id. art. 8 & 9.
111
International Labour Organization, Guide to International Labour standards, 2008, p. 90, at WWW
< http://www.ilo.org/wcmsp5/groups/public/---ed_norm/---
normes/documents/publication/wcms_086223.pdf > (Consulted 24 May 2008).
112
See Section 2 of the article.
113
Minimum Wages Fixing Convention, 1970(No. 131), art. 2, [hereinafter Convention 131]
114
UDHR, however, established the principle of fair payment. Article 23(2) reads: everyone, without
any discrimination, has the right to equal pay for equal work. See also Section 2.1 of this research.

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The Ethiopian labour law nowhere provides the right of workers for fair payment.
Though the labour union, through collective bargaining, may negotiate on the
minimum threshold salary as part of the collective agreement, the Proclamation does
not stipulate the minimum amount of wage; nor does it state the possibility of fixing
the minimum amount of wage in other subsidiary legislation that workers are entitled
to.

3.5. Elimination of Child labour and forced labour

3.5.1. Child Labour

The labour law provides the minimum age limit below which an employer may not
employ a person. The general age of majority under the relevant law is eighteen
years.115 A person who does not attain the age of majority may lack capacity to
undertake a legally binding obligation.116 An employee-employer relation bases itself
only on contract, express or tacit.117 However, the Labour Proclamation, as a special
realm of law, shortened the age of majority to fourteen years. An enterprise or any
other employer may not employ any person with less than fourteen years in any area
of work.118 Although economic and social considerations dictate the legislator to
provide lesser years of majority, the law considers the physical, psychological and
health risks that a young worker119 between the age of fourteen and eighteen may
undergo due to the nature of the work that he/she has to perform. In order to ensure
that young workers do not undertake works hazardous to their physical and
psychological well-being and health, the law provides a non exhaustive list of
activities for which a young worker may not be employed.120

Child labour abolition is among the four principles concerning the “fundamental
rights” of workers under the 1998 Declaration on Fundamental Principles and Rights
at Work. Minimum Age Convention, 1973 (No.138); and Worst Form of Child
Labour Convention, 1999 (No.182) are the main ILO Conventions that aim at
eliminating child labour. Both of them are ratified by Ethiopia. As a general rule, the
minimum age for admission to employment should not be less than the age of
completion of compulsory schooling, and, in any case, not less than 15 years. 121
Exceptionally, where the economy and educational facility of the country is
insufficiently developed; or where the nature of the work is light or hazardous, the
minimum age fixed in the Convention for admission of employment could vary. 122 In

115
Civil Code of the Empire of Ethiopia, 1960, Proclamation No. 165/1960, Neg. Gaz., Extraordinary
Issue, 19th Year No.2, art. 198.
116
Id., art. 1678.
117
Proclamation No. 377/2003, art. 4.
118
Id. art. 89 (2).
119
A young worker is a person between the age of fourteen and eighteen. See Id. art. 89 (1).
120
Id. art. 89 (4). These include; (a) work in the transport of passengers and goods by road, railway, air
and internal waterway, docksides and warehouses involving heavy weight lifting, pulling or pushing or
any other related type of labour; (b) work connected with electric power generation plants transformers
or transmission, lines; (c) underground work, such as mines, quarries and similar works; (d) work in
sewers and digging tunnels.
121
Minimum Age Convention, 1973(No. 138) art. 2(3).
122
Id., art. 2(3)(4) & 7. For example, in case of hazardous work meaning where the type of work by its
nature or the circumstance in which it is carried out is likely to jeopardize the health, safety or moral
of the young persons, the minimum age should not be less than 18 years. The type of the work will
be determined by national laws and regulations.

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the former case the minimum age will be 14 years. 123 In addition to this, Convention
182, under Article 1, imposes duty on member states to take immediate and effective
measures to secure the prohibition and elimination of the worst forms of child labour
as a matter of urgency. Such kind of works include, among other things, all forms of
slavery, child trafficking, compulsory recruitment of children for use in armed
conflict, offering of a child for prostitution and use of a child for illicit activities.124

3.5.2. Forced Labour

The term forced labour is defined under Article 2(1) of Convention 29 as “all work or
service which is exacted from any person under the menace of any penalty and for
which the said person has not offered himself voluntarily”.125 Accordingly, any work
done without the free will of the worker and in the form of punishment constitutes
forced labour. This Convention obliges member states to suppress and penalize the
illegal extraction of forced or compulsory labour.126 It is prohibited to give permission
for forced labour for the benefit of private individuals, companies, or associations.127
The Ethiopian Labour Proclamation is silent regarding forced labour. However, it can
be inferred from other laws of the country that there is legal prohibition to forced
labour. Article 18(3) of the FDRE Constitution extends protection against forced
labour stating that “no one shall be required to perform forced or compulsory labour”.
Apart form this, as mentioned above, labour relation emanate from contract. It is the
principle of the law of contract that parties must give their consent, either expressly or
impliedly. In other words, there should be employment contract sustainable in the
eyes of the law. It is possible to say that the fact that forced labour is contrary to the
law of contract may not help so much to eliminate such practice as owners of
undertakings may acquire the result of forced labour in contradiction of the law of
contract. However, the Criminal Law of Ethiopia makes acquisition of forced labour
punishable.128 Accordingly, whosoever, by intimidation, violence, fraud or by any
means, compels another to accept an employment or particular condition of
employment is punishable.129 Moreover, the constitutional right to liberty of persons
may be interpreted widely to include prohibition of forced labour, as a person will be
deprived of his physical liberty when he is forced to perform a certain work.130
Both the FRDE Constitution and Convention 29, however, provide lists of works
which can not be considered as forced labour even though they are extracted with out
the free consent of the worker. Such works include compulsory military services;
normal civil obligations of citizens of a fully self-governing country; 131 and any
service exacted in lieu of compulsory military service132. Work extracted in case of
emergency such as war, calamity, and in general, any situation that would endanger

123
Where the economy and educational facility of the country is less developed, the minimum age will
be 14 years. See Id., art. 7.
124
Worst Form of Child labour Convention, 1999(No. 182), art. 3.
125
Forced Labour Convention, 1930(No. 29). This Convention is ratified by Ethiopia.
126
Id., art. 1 & 25.
127
Id., art. 4 & 5.
128
The Criminal Code of the Federal Democratic Republic of Ethiopia, 2004, art. 603 (1).
129
Id., art. 603 (1)(a).
130
See Ethiopian Constitution, art. 17.
131
Convention 29, art. 2(a) & (b).
132
Ethiopian Constitution, art 18(4)(b).

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the existence or the well-being of the whole or part of population; 133 and any work or
service exacted from any person as a consequence of a conviction in a court of law134
are among the exceptions.

3.6. Freedom of Association and Collective Bargaining

3.6.1. Freedom of Association

The law provides the right of workers to establish and form trade union. The
requirements and procedure to establish a trade union is provided together with
several protections to trade union members and leaders. Pursuant to Article 114(1) of
Proclamation 377/2003, a trade union may be established in an undertaking where the
number of workers are ten; provided, however, that the numbers of members of the
union shall not be less than ten. As stated under sub-article 2 of the same provision, in
circumstances where the numbers of workers in an undertaking are less than ten, a
general trade union may be established together with workers in other undertakings
with less than ten numbers of workers. The number of members in a general trade
union established by workers of different undertakings may not be less than ten.135
Besides, trade unions may jointly establish federations and the latter may jointly form
confederation.136
The Proclamation arguably brings about the idea of plurality of trade unions with in
an organization. Article 115 (1) (a), in the relevant part reads: “…where there exist
more than one trade union at a given enterprise…”. It is a clear recognition of
plurality of trade union in a single undertaking. However, subsequent provisions make
the above statement meaningless. For example, in undertaking where there exists
more than one trade union, the one, that may bargain a collective agreement, is the
trade union, which gets fifty plus one or more support by all employees of an
enterprise.137 This, in effect, means that a trade union, which fails to secure the vote
of the majority of workers, may not participate in the most important function of any
trade union, collective bargaining. Besides, only a trade union which secures the
majority vote may be registered in the relevant government organ (Article115(1)(b),
Proclamation No. 377/2003).The legal consequence of inability to register is lack of
legal personality which in turn gives rise to inability to perform any of the functions
for which trade unions are meant to exist.138 Therefore, given that trade unions, except
those which secure the majority vote, lack any of the attribute of employees’
association, it is hardly plausible to conclude that there is a legal recognition of
plurality of trade unions in an undertaking in Ethiopian labour law.
It is also recognized under different ILO Conventions that both workers and
employers have the right to establish and join organizations of their own choice based

133
Id., art. 18(4) (c); Convention 29, art. 2(2) (e).
134
Ethiopian Constitution art 18(4)(a); Convection 29 art. 2(c). The Convention particularly states that
such kind of work will not be considered as forced labour if that work or service is carried out under
the supervision and control of a public authority and that the said person is not hired to or palced at the
disposal of private individuals, companies or associations.
135
Proclamation No. 377/2003, art. 114(2).
136
Id., art. 114 (3).
137
Id., art. 115(1) (a).
138
See Id., art. 118 (4) (5).

- 23 -
on the rules and regulation of the respective organizations.139 This right extends to the
extent that workers and employers may establish and join federations and
confederations at the national and international level.140 Pursuant to Article 3 and 6 of
Convention No. 87, the organizations, federations and confederations, established by
workers and employers, have the right to draw up their own constitutions and rules;
elect their representatives in full freedom, organize their administration and activities,
and formulate their programmes.
A legally recognized trade union has a number of functions in order to safeguard the
interests of its members. Some of the very important functions of a trade union
include the following:
(i) representation of its members in collective negotiations and labour disputes
before the competent body when so requested or delegated;
(ii) ensure that laws, regulations, directives and statements are known and be
observed;
(iii) initiate laws and regulations pertaining employers and workers;
(iv) participate actively during their preparation and amendment; and
(v) discharge other functions provided for in their constitutions of organization. 141

For the unions to function properly, workers’ representatives must act without fear,
intervention and discrimination. Article 14(d) of the Ethiopian Labour Proclamation
states that the act of the employer that coerces “any worker by force or in any other
manner to join or not to join or to cease to be a member of a trade union or to vote for
or against any given candidate in elections for trade union offices” is unlawful. These
kinds of protections enable workers to freely establish or join unions that stand for
their rights and benefits. Similar to this, Article 1 of Workers’ Representatives
Convention, 1971(No. 135), states that:
“workers' representatives in the undertaking shall enjoy effective
protection against any act prejudicial to them, including dismissal,
based on their status or activities as a workers' representative or on
union membership or participation in union activities, in so far as they
act in conformity with existing laws or collective agreements or other
jointly agreed arrangements.”
In addition, facilities must be granted to workers’ representatives in order to enable
them carry out their functions promptly and efficiently in such a way that should not
affect the operation of the undertaking concerned.142

139
Freedom of Association and Protection of the Right to organize Convention, 1948 (No. 87)
[hereinafter Convention 87], art. 2; Rural Workers’ Organizations Convention, 1975 (No. 141)
[hereinafter Convention 141], art. 3 & Right to organize and Collective Bargaining Convention,
1949(No. 98)[here in after Convention 98].
140
Convention 87, art. 5.
141
Proclamation No. 377/2003, art. 115.
142
Workers’ Representatives Convention, 1971 (No. 135), art. 2. The facilities afforded for workers’
representatives include the necessary time off from work, without loss of pay or social and fringe
benefits, for carrying out their representative functions; where necessary, access to all workplaces, to
the management of the enterprise and to management representatives empowered to take decisions;
authorization to collect trade union dues on the premises of the enterprise; the posting of trade union
notices; the distribution of documents among workers; material facilities and information as may be
necessary for the exercise of their functions. Workers’ Representatives Recommendation, 1971 (No.
143), art. 10-15.

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3.6.2. Collective Bargaining

Central to the right to association is collective bargaining and collective agreement.

As mentioned above a trade union with legal recognition has the right to make
collective bargaining in order to come up with collective agreement. 143 Collective
bargaining is the process of negotiation between workers’ representatives and the
concerned undertaking concerning conditions of work.144 The law imposes an
obligation on parties to collective bargaining to negotiate in good faith (Article
130(4), Proclamation No. 377/2003). In most instances, collective bargaining results
in collective agreement, which is a written agreement between trade union and the
employer. The term is defined under Section 2 of Collective Agreements
Recommendation, 1951 (No. 91), as “…all agreements concluded between an
employer, a group of employers or one or more employers’ organizations, on the
other hand, and one or more representative of workers’ organizations, or in the
absence of such organizations, the representatives of the workers duly elected and
authorized by them in accordance with national laws and regulations, on the other”.
The Labour Proclamation provides list of the contents of a collective agreement.145 It
may, inter alia, include, the conditions for protection of occupational safety and
health and the manner of improving social services; workers’ participation,
particularly, in matters regarding promotion, wages, transfer, reduction and discipline;
conditions of work, the procedures for making work rules and grievance procedures;
arrangement of working hours and interval break time etc. Besides, the collective
agreement is meant to regulate matters left by the Proclamation or other laws.
An important feature of the Proclamation is that it makes a collective agreement
invalid to the extent that the latter provides for condition of work and benefits which
are less favorable than those provided for under the Proclamation or any other laws
(Article 133(1), Proclamation No. 377/2003). It meant to ensure that the rights and
benefits of workers are protected more favorably than the protection provided by the
law.
Collective bargaining can be considered as advantageous for both workers and
employers. It enables workers to get more protection on working conditions and terms
of employment by providing them with a “collective voice” while it helps employers
to stabilize industrial relations by maintaining industrial peace. 146 Collective
Bargaining Convention, 1981(No. 154), under Article 7 and 8, states that measures
can be taken to promote collective bargaining, after consultation and, whenever
possible, agreement with employers’ and workers’ organizations. Such measures
should be taken, among other things, in a way that make the collective bargaining
possible for all employers and all groups of workers covered by the Convention;
encourage the establishment of rules of procedure between employers’ and workers’
organizations; and ensure that procedures for the settlement of labour disputes
contribute to the promotion of collective bargaining.

143
See Proclamation No. 377/2003, art.125.
144
Id., art. 124 (2).
145
Id., art. 129.
146
Collective Bargaining, at WWW < http://www-ilo
mirror.cornell.edu/public/english/dialogue/themes/cb.htm> (Consulted 10 June 2008).

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3.7. Protection against Unfair Dismissal
In a country where the rate of unemployment is high, owners of means of productions
have greater leverage to dismiss their workers for different reasons. Dismissal may be
used by employers as a tool to discourage the tendencies of workers to assert their
contractual and legal rights. Protection against dismissal plays a vital role to ensure
that all the other rights of workers shall be enforced. In a situation where there is no
sufficient protection against dismissal, workers may not be able to assert the
enforcement of their right. This is precisely because an employee who decides to
claim his right may risk himself for dismissal.
The Ethiopian labour law provides protection for workers against dismissal. The
Proclamation provides rules to be complied with when an employer decides to dismiss
his worker(s) and the legal and contractual consequences of such dismissal. Several
provisions deal with the preconditions and procedures that must be fulfilled where an
employer wants to dismiss one or more of his workers. The provisions govern
instances of dismissal of a worker or group of workers and reduction of a certain
proportion of or the whole of the work force of an enterprise.
The Proclamation, under Article 23(1), provides the general rule that contract of
employment may only be terminated in accordance with the law or agreements of the
parties or collective agreement. To put it in different terms, the circumstances which
justify dismissal and the procedures to be followed in case of termination are to be
found either in the agreements of the parties or the law. There are different factors
which justify the termination of the contract of employment in accordance with the
law. These factors may relate to the contractual nature of employment agreement, the
conduct of the worker or the objective circumstance that affects the operation of an
enterprise. Regarding the contractual nature of the employment agreement, the expiry
of the period or the completion of the work, where the contract of employment is for a
definite period or piece work, is a legal ground for the termination of the contract. 147
The Proclamation provides legal grounds emanating from the conduct of the
employee which serves as the legal grounds for the termination of the contract of
employment. Article 27 of the Proclamation provides list of conducts that the
employee should avoid in order to benefit from the legal protection against dismissal.
These conducts include repeated and unjustified tardiness despite warning; absence
from work with out good cause for 10 days with in one month; deceitful or fraudulent
acts in carrying out his duties; misappropriation of property; responsibility for causing
damage intentionally; etc.148 The Proclamation also provides under Article 26(2) lists
of employee’s conducts which may not be a ground for the dismissal of the worker.
These conducts include; involvement in a trade union or participation in lawful
activities; holding of office as workers’ representative; and submission of grievance
against the employer before judicial or other proceedings. The nationality, sex,
religion, political outlook, martial status, race, color, family responsibility, pregnancy
and lineage line can not constitute legitimate grounds to terminate employment
contract. These grounds are among the listed circumstances which could not
constitute valid reason for dismissal under Termination of Employment Convention,
1982 (No. 158). The Convention, however, added two more circumstances; absence

147
Proclamation No. 377/2003, art. 24(1)
148
Id., art. 27(1). In such condition the employer may terminate the contract of employment even with
out giving notice.

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from work during maternity leave; and temporary absence from work because of
illness or injury.

There are circumstances relating to the organization or operations of an enterprise

which may give raise the termination of employment contract in pursuance of the
law.149 The termination in this context may affect a single worker, group of workers
or the whole of the work force. For example, change in the organization structure of
an enterprise may give rise to the transfer of the business in another locality. It is a
sufficient ground for an employer to terminate the contract of employment if the
employee refuses to move to a new locality. 150 Some circumstances may also force
an enterprise to cancel the post of some workers and the latter may be found unfit to
the new post. In this situation, the employer can terminate the contract of
employment. 151
Some events may force an enterprise to cease its operation in part or in whole
resulting in the necessary reduction of the work force. The law recognizes any such
circumstance as sufficient ground for an employer to terminate the contract of
employment by way of reduction of workers.152 The law does not provide an
exhaustive list of circumstances that justify such reduction. However, two events are
expressly provided. These are: a decrease in the market share of the products and
services of the enterprise which results in the reduction of the volume of the work and
profit of the undertaking; and decision to alter work methods or introduction of new
technology with a view to raise productivity.153 Apart from the above two grounds,
the justifiability of the occurrence of an event for reduction of work force is subject to
interpretation. In addition to the justifiable causes mentioned above, the law provides
a necessary criterion for an employer to exercise the right of reduction of the work
force. Pursuant to Article 29 (1) of the Proclamation, the occurrence of an event
which is purported to justify the reduction of the work force must affect at least ten
percent of workers employed; or five workers within a continuous period of not less
than ten days in the case of an organization with the number of workers are between
twenty and fifty.154 This, in other words, means that the occurrence of any of the
events discussed above may not be sufficient ground for reduction of the work force
unless the event is of the magnitude that it affects a number of workers representing
the required percent.
Once the employer is sure that the circumstance which justifies the reduction of work
force exists, he must comply with a procedure as to which category of worker (s)
should be reduced first. As a general rule, the employer, in consultation with trade
union or representatives shall give workers, having skills and higher rate of
productivity, priority of being retained in their post.155 However, since the law does
not provide the criteria to determine skill and productivity, such determination may be
149
Termination of employment contract relating to the structure and operations of the enterprise may
be made only after due notice is given to the employee(s) to be affected by the termination. See id.
art. 28.
150
See Id., art. 28(c).
151
Id., art. 28(d)
152
Id., art. 28 (2) (a).
153
Id., art. 28 (2) (b) (c).
154
Id., art. 29 (1). The phrase “number of workers” for the purpose of the proclamation means the
average number of workers employed by an employer concerned with in the twelve months
preceding the date when the employer took measure of reduction of workers. See Id., art. 29 (2).
155
Id., art. 29 (3).

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subject to bias and prejudice by the employer. It may be assumed that the involvement
of trade union or representatives of workers may reduce the subjectivity. The law
provides the order of workers to be affected by reduction in case of equal skill and
productivity of workers. Accordingly, the workers to be affected first by reduction
shall be those with the shortest length of service in the undertaking.
The law also provides consequences of termination of employment contract. They can
be classified in two categories. First, the employee is entitled to severance payment in
cases provided by law. Secondly, the employer may be obliged to pay compensation
or to reinstate the worker whose contract of employment is terminated.156 These
obligations are also imposed on the employer under articles 10, 11 & 12 of
Termination of Employment Convention, 1982 (No. 158). Regarding severance
payment, the law provides list of grounds which entitles the employee to this right.
The grounds can be broadly classified in to three. The first ground relates to events
affecting the operation of the undertaking. These include, cessation of operation of the
undertaking due to bankruptcy or any other reason; and events causing the
undertaking to reduce the work force. The second ground relates to the acts or
omissions of the employer. These include the act of employer which hurts the human
honor and moral of the employee or any act constituting criminal offence; termination
of contact of employment by the employer against the provisions of law; and failure
of the employee to take measure to avert any danger that threatens the security and
health of the worker. The third ground relates to the worker. These include, the partial
or total disability of the worker; attainment of retirement age of the worker provided
he is not entitled to provident fund or pension under the contract of employment;
sickness or death of the worker provided that he served the employer for five years;
termination up on initiation of the worker provided that he served for five years and
he has no contractual obligation relating to training to serve more years; or
termination up on the initiation of the worker because of HIV/AIDS.
The other consequence, separately from or together with severance payment, is the
obligation of the employer to pay compensation or reinstate the worker in case of
unlawful dismissal. The law defines unlawful dismissal as failure of the employer to
comply with the requirement of the Labour Proclamation or other relevant law
regarding termination.157 An employee may claim compensation, in addition to
severance payment, if he is unlawfully dismissed. In some instances, the labour
dispute settlement tribunal may order the reinstatement of the worker instead of
compensation if it believes that the continuation of the worker employer relationship,
by its nature, is not likely give rise to serious difficulty.158

3.8. Workers Participation

There are different arrangements in different legal systems for the participation of
workers in the company’s activities. The participation can be limited to the extent of
getting information about decisions that will be made at board level by the
management. The employer may be obliged to consult on certain matters that could
possibly affect the interest of the worker. Under the latter circumstance, the consent of
workers’ representatives may be required for the employer to progress with the

156
See Id., arts. 39-43; see also Proclamation No. 494/2006(Amendment proclamation) ,art. 2(2).
157
Proclamation No. 377/2003, art. 42.
158
Id., art. 43(3).

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intended plans. The type of workers’ participation that gives wider power for the
representatives of workers is participation in decision making and involving in setting
company strategy at management level. In other words, workers’ representatives may
be assigned to one or more seat at board level of management.159
ILO Convention 158 demands the employer to notify the competent authorities and
consult with the concerned workers’ representatives in case of termination of
contracts for economic or technological reasons.160 The workers’ representatives shall
be informed, in good time, with relevant information including the reasons for the
dismissals; the number and categories of workers likely to be affected and the period
over which the terminations are intended to be carried out. The information and
consultations are aimed at averting or minimizing the terminations. It is aimed at
mitigating the adverse effects of any terminations on the worker. Consultation can,
therefore, be considered as one way of workers’ participation. Apart from these, there
is no clear indication under the ILO Conventions that establish the right of workers’
representatives to participate at management level. There is no also clear obligation in
the ILO Conventions that the employer has to inform or consult workers’
representatives on the over all activities and other related matters of the management
of the company.
The Ethiopian labour law ensures only limited participation of workers in the
undertaking in which they are employed. The limited right of participation is to be
exercised mainly through collective bargaining and collective agreement. The scope
and nature of collective agreement under Ethiopian law largely determines the level of
participation of workers in their respective undertakings. A close examination of the
provisions of Article 128 and 129 of the Proclamation demonstrates that only
employment relationships and work rules that may directly affect employees’ rights
are subject to collective agreement. An issue at this juncture may be whether policy
and economic decisions that may adversely affect the fate of the undertaking may be
subject to collective agreement. For example, transfer, merger or conversion may
affect the success and goodwill of an undertaking which in turn affect the future of the
undertaking to allow its employees to stay in their work. These and other related
issues seem not to be subject of collective agreement. Matters of collective agreement
seem to confine to promotion, wage increase, work rule, occupational safety, and
other related matters which have much to do with the direct relationship between
workers and their employers.161
Apart from collective agreement, employee’s right to participate in the affairs of the
undertaking is not provided in the Proclamation. For example, an employer is under
no obligation to inform or consult his employees on plans of merger, acquisition or
transfer of the undertaking. Under the Labour laws of different European states such
kind of duties are imposed on the employer. For example, under Dutch labour law the
employer has to consult the work council on any decisions he proposes to make in
relation to transfer or control of the enterprise or any part thereof; establishment, take-

159
For detailed information see Hammer, T.H. & et al, Worker Representation on Boards of Directors:
A Study of Competing Roles, Industrial & Labour Relation Review, Vol. 44, 1990-1991, p. 661;
Gold, M., Employee Participation and the EU: From Concept to Practice, at WWW
<http://www.socsci.auc.dk/leo/iera/program/Michael%20Gold%20Plenary%20Speeches.pdf >
(Consulted 10 June 2008).
160
Convention 158, art. 13 & 14.
161
See Proclamation No. 377/2003, art. 128.

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over or relinquishment of control of another enterprise, or entering into, making a
major modification to or severing a continuing collaboration with anther enterprise;
termination of operations of the enterprise or a significant part thereof; any significant
reduction, expansion or other changes in the enterprise’s activities; major changes to
the organization or to the distribution of power within the enterprise; any change in
the location of the enterprise’s operations; recruitment or borrowing of labour on a
group basis; making major investment on behalf of the enterprise; taking out major
loans; and granting a significant credit; and introduction of technological innovation;
and environmental investments.162
The Ethiopian labour law simply provides that merger, division or transfer of an
undertaking may not modify the contract of empowerment. 163 It has to be noted,
however, that the change in the organization’s structure, transfer or amalgamation
may severely affect the interests of employees as it may entail in the reduction of the
work force. In connection to this the law provides that employees’ representatives
must be consulted as to who should be terminated first in case of reduction of work
force.164 Apart from this, however, workers’ representatives have no other role in case
of reduction.

4. Conclusion
In the preceding parts of this article discussion was made on different labour
standards, which include occupational safety and health, working hours and paid
leave, protection against discrimination, fair payment and minimum wage, child
labour and forced labour, freedom of association and collective bargaining, protection
against unfair dismissal and Workers participation, in light of the Ethiopian domestic
laws and ILO Conventions. It has been discussed that the Ethiopian Labour law
contains provisions that extend more or less similar kind of protection with the ILO
Convention on most of the standards. It is emphasized that, both under Proclamation
No. 377/2003 and the relevant ILO Conventions, employers have obligation to ensure
that the occupational environment is safe and free from risk for workers. This
obligation of employers include the duty to provide information to workers regarding
all circumstances which may potentially cause occupational health or other risks;
training as to how to reduce or avert potential risks; and protective equipments and
cloths etc. Protection against discrimination is another important area where the
labour proclamation set nearly identical standard with the ILO Conventions, except
for the difference that exists between the two on non-discrimination at recruitment
stage. The benchmark regarding this standard can be explained in terms of the
requirement that different grounds such as sex, color, ethnic origin, religious
background etc may not be taken as ground to discriminate between persons in
relation to recruitment, employment, payment and promotion.
The labour Proclamation sets that the minimum working hour should not exceed 8
hours a day and 48 hours a week. Workers are entitled for weekly rest period of 48
non-interrupted hours, annual leave with pay, public holiday leave, sick leave and

162
The Netherlands’ Works Council Act, art. 25(1). In the Netherlands, Employees are entitled not
only to establish trade unions, but they can also form workers’ councils. The Work Council Act
provides that an enterprise with 50 employees or more is obliged to establish a works council.
163
See Proclamation No. 377/2003, art. 16.
164
See Id., arts. 28 & 29.

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leave on special occasions. These workers rights are recognized in similar way under
the ILO Conventions except for Convention 47 which sets the minimum weekly
working hours 40.
Apart from this, though the Ethiopian labour law is silent with regard to forced labour,
both the FDRE Constitution and the Federal Criminal Code outlawed forced labour.
The proclamation extends protection against child labour by setting the minimum age
bellow which a person can not be employed. The proclamation protects the rights of
workers to form associations and to engage in collective bargaining through their
representatives with the employer. It provide general obligations on employers to
engage in collective bargaining, based on good faith, with trade unions on matters
affecting the collective interests of workers, on one hand, and the interest of the
employer on the other. Workers are also protected against unfair dismissal under
Ethiopian law. These Ethiopian labour standards more or less match with the
standards set in the ILO Conventions.
Some of the labour standards that were discussed through out this article are also
constitutional rights. Article 42 of the FDRE Constitution provides protection for
workers’ right to form associations, to reasonable limitation of working hours, to rest,
to periodic leaves with pay, to remuneration for public holidays as well as the right to
healthy and safe work environment.
However, important differences are also found on some areas that have profound
effects on the life of workers. It is understandable that countries may differ in their
labour standards, as the underlining socio-economic situations differ. It is equally
important, however, for countries’ policy makers to take an informed decision, based
on thorough study on the prevailing circumstance, while formulating labour standards.
The general perception that more favorable standards to workers would compromise a
country’s potential to exploit its competitive advantage contributes a lot for
developing nation’s policy makers to opt for weak labour standards. In this
connection researches demonstrate that this kind of hypothesis is not necessarily true
as it is not founded by empirical evidences. For example, attraction of flow of FDI, as
an element of competitive advantage, may not only be motivated by lower labour
standards. Instead, investors are more concerned about political and social stability,
skilled labour, economic efficiency, physical and technological infrastructure etc.
A closer look at the labour law regime in Ethiopia would reveal the fact that there are
weak standards with regard to some important areas of labour rights. More
specifically, a lot has to be done in the area of worker’s participation so as to ensure
them to reasonable involvement on important decisions which can potentially affect
workers directly and indirectly. Currently, the scale of workers’ participation provided
by the existing labour law show that employees are not considered as stakeholders in
the enterprise they work. In the opinion of the writer, increased participation of
workers’ in the various affairs of the enterprise has positive and multi-faceted
outcomes. Since it allows employees to express their view on the decisions intended
to be taken by the firm, it assists the management to arrive at sound decision. It also
brings about job satisfaction on the part of the employee, as it creates the impression
that workers are considered as important stakeholders of the enterprise, which in one
way or another contributes for the organizational performance of the firm. The net
result of all of these may be explained in terms of economic efficiency and
development.

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Also in the area of individual and collective dismissal, workers’ job security is not
well protected. In this connection, the law does not meet the ILO’s standard which
requires employers to give information and make consultation with workers to reduce
the negative effect of dismissal. Pursuant to Article 141 of Convention 158, the
employer has an obligation to notify the competent authorities about the reasons of
dismissal and make consultation with employees’ representatives in case of
termination for “economic or technological reason”. Although the Ethiopian law
provides grounds which justify individual or collective dismissal of workers, the
employer has a unilateral role to decide whether the grounds exist. This, among other
things, reinforces the employer’s prejudice and erroneous appreciation of facts which
in turn give rise to unfair dismissal. The Ethiopian law does not establish any
administrative authority to deal with issues of collective dismissal, nor does it
provides any requirement on the employer to give notice and make consultation with
any organ to mitigate the case of collective dismissal. The law only provides grounds
which may justify the employer’s decision to make collective dismissal. The only
obligation on the employer is to make consultation with trade union as to the order of
dismissal of employees. This latter obligation may not change employer’s decision
about dismissal as he would notify the union only after making the final decision.
This arrangement can only help to make the decision about order of dismissal non-
arbitrary. The role of trade unions is therefore insignificant in the context of collective
dismissal. The fact that aggrieved workers may take their case before court may not
make the system better as trial may take long time. In addition, the employer is not
under any obligation to pay the employee his wage or any payment pending the
decision of the court or tribunal both under Convention 158 and the Labour
Proclamation. The cumulative effect of these pose serious problem to the worker in
Ethiopia where saving is literally non-existent, as low wage is the reality in the
country, and social security benefits are unavailable. This will give rise to inability of
the dismissed worker to support himself and his dependants pending decision by the
court. It is the belief of the writer that a mechanism must be devised to mitigate the
unilateral role of the employer and the consequent repercussion on the life of workers
and their dependants.
The Labour Proclamation lacks a clear provision with regards to protection of
individual against discrimination at recruitment stage unlike ILO Convention 111.
Article 14(f) of the Proclamation simply made illegal the act of the employer that
discrimination between workers on the basis of nationality, sex, religion, political
outlook or any other conditions. The scope of the non-discrimination clauses under
this provision does not seem to include equal opportunity and non-discrimination at
the recruitment stage. It is only if that person is already employed that the
discrimination results in legal consequences against the employer such as severance
payment and compensation, except for discrimination on the ground of ‘sex’ at
recruitment stage. It is good if the provisions of the Proclamation are amended in a
way to include protection against discrimination in relation to access to employment
and occupation so that it can conform to article 25 of the Ethiopian constitution and
Convention 111.
In addition, lack of any requirement in relation to minimum wage and fair payment
would promote the employer to abuse his bargaining power. Without these rights
being explicitly provided in legal instruments, employers may not be willing to give
fair payment to their workers. This will be more true in those countries, such as
Ethiopia, where the rate of unemployment is high. In these countries, workers may not

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 have negotiating power as the employer can find others who can work with less
payment. Thus, the government should take measures to guarantee the protection of
the rights, which may include ratifying Convention 87 and amending the Labour
proclamation.

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