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Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Burundi (RATIFICATION: 1997)

Other comments on C098

Observation

Direct Request

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The Committee notes the observations of the Trade Union Confederation of Burundi (COSYBU), received on 29 August 2023, which relate to matters examined in the present comment. The Committee also notes the indication by COSYBU that the situation of workers who are members of the Trade Union of Workers of the University of Burundi (STUB) has been regularized, unlike that of its President, who has still not been reinstated in his job, despite a court ruling in his favour. Recalling that the reinstatement of a worker dismissed by reason of trade union membership or legitimate trade union activities with retroactive compensation constitutes the most effective remedy for acts of anti-union discrimination (General Survey of 2012 on the fundamental Conventions, paragraph 182), the Committee requests the Government to provide updated information on the situation of the President of the STUB.

Revised Labour Code. The Committee notes the adoption of Act No. 1/11 of 24 November 2020 revising the Labour Code (revision of Legislative Decree No. 1/037 of 7 July 1993).

Articles 1, 2 and 3 of the Convention. Adequate protection against acts of anti-union discrimination and interference. In its previous comments, the Committee emphasized that the sanctions established by the Labour Code for acts of anti-union discrimination and interference were not dissuasive and expressed the hope that the respective provisions would be amended in the context of the revision. With reference to the allegations made by the COSYBU of cases of anti-union discrimination in various economic sectors, the Committee notes with regret that they have not been referred to in the Government’s comments. The Committee notes that, according to the Government, the principles protected by the Convention are applied by sections 588 and 589 of the revised Labour Code (which relate, respectively, to protection against acts of discrimination liable to prejudice freedom of association in relation to employment and protection against acts of interference), and section 20(1) of Act No. 1/03 of 8 February 2023 amending Act No. 1/28 of 23 August 2006 issuing the General Regulations of public employees (which include trade union activities among the prohibited grounds of discrimination). The Committee also notes that the COSYBU, in its observations, calls for the adoption of additional measures, including effective and dissuasive sanctions and particularly for measures to be taken to amend section 158 of the revised Labour Code, which provides that, where the reinstatement of a worker who has been unjustifiably dismissed is not possible, in the absence of agreement between the parties (section 157 of the new Labour Code): “damages and interest shall be calculated taking into account the seniority of the worker in the enterprise, the workers’ s age and salary (subsection 1). The amount to be paid by the employer to the unjustifiably dismissed worker shall correspond to one-third of the sum of the age and years of seniority multiplied by the last monthly remuneration (subsection 2). However, the amount of the damages and interest may not be higher than 36 months of the last remuneration (subsection 3)”. The COSYBU observes that the average compensation would be around 15 months’ salary, which in its view is very inadequate in relation to the damage suffered. The Committee recalls that the effectiveness of legal provisions prohibiting acts of anti-union discrimination depends not only on the effectiveness of the remedies envisaged, but also the sanctions provided for which should, in the view of the Committee, be effective and sufficiently dissuasive (General Survey of 2012 on the fundamental Conventions, paragraph 193). While reaffirming that the reinstatement of a worker dismissed by reason of trade union membership or legitimate trade union activities constitutes the most effective remedy for acts of anti-union discrimination, the Committee recalls that, when a country opts for a system of compensation, it considers that the compensation envisaged for anti-union discrimination should fulfil certain conditions, namely: (i) be higher than that prescribed for other kinds of dismissal, with a view to the effective dissuasion of this type of dismissal; (ii) be adapted in accordance with the size of the enterprises concerned; and (iii) the amount be reviewed periodically (General Survey of 2012 on the fundamental Conventions, paragraphs 182 and 185). In light of the above and in order to be able to assess whether the revised Labour Code ensures adequate protection against anti-union dismissal within the meaning of Article 1 of the Convention, the Committee requests the Government to: (i) specify the method of calculating damages and interest established by section 158 of the revised Labour Code; and (ii) provide information on the application in practice of section 158 of the revised Labour Code.

Article 4. Promotion of collective bargaining. The Committee previously requested the Government to provide its comments on an allegation by the International Trade Union Confederation (ITUC) that section 224 of the Labour Code that was then in force authorized collective agreements with non-unionized workers and that section 227 of the Labour Code allowed interference by the authorities in collective bargaining. The Committee notes the Government’s indication that the revised Labour Code gives effect to the provisions of the Convention through sections 515 to 521. The Committee observes in this regard that: (i) section 515, which replaces section 224, provides that it is only in the absence of the most representative unions or federations that staff representatives on the enterprise council or workers can engage in collective bargaining; and (ii) section 520 of the Labour Code, which replaces section 227, provides that representatives of the labour administration shall participate in collective bargaining in an advisory capacity. While taking due note of the changes in the legislation, the Committee requests the Government to provide information on the application in practice of section 515 of the revised Labour Code, by specifying: (i) the manner in which the representative or most representative nature of a union organization is determined for the purposes of collective bargaining; and (ii) the number of collective agreements concluded by unions, and the number of collective agreements concluded by other actors under the terms of this section. The Committee also requests the Government to provide information on the application in practice of section 520 of the revised Labour Code concerning the role played by the representatives of the labour administration in collective bargaining.

The Committee further notes that the COSYBU: (i) reiterates that collective agreements have not been concluded in all sectors since 2012; (ii) once again denounces the suspension of the bonuses and allowances linked to the economic situation established in the national inter-occupational collective agreement of 3 April 1980 governing long-service bonuses; and (iii) reaffirms that an agreement signed with the Government on 23 February 2017 to re-establish regulations on the exercise of freedom of association and collective bargaining has still not been applied. The Committee also notes that, in its reply, the Government reiterates that the ways and means of implementing the agreement signed on 23 February 2017 are under examination. Recalling that mutual respect for commitments made in collective agreements is an important element of the right to collective bargaining (see General Survey of 2012 on the fundamental Conventions, paragraph 208), the Committee once again requests the Government to provide information on any developments concerning the implementation of the agreement of 23 February 2017 and to respond to the allegations of the COSYBU concerning the suspension of the bonuses and allowances linked to the economic situation established in the national inter-occupational collective agreement of 3 April 1980. Noting the persistence of the divergent appraisals by the Government and the COSYBU regarding the implementation in practice of the right to engage in collective bargaining, the Committee also requests the Government to provide information on the measures adopted to encourage and promote collective bargaining and their impact. The Committee further requests the Government to provide detailed information on the collective agreements concluded, the sectors concerned and the number of workers covered.

Articles 4 and 6. Right of collective bargaining of public servants not engaged in the administration of the State. In its previous comments, the Committee requested the Government to provide detailed information on the measures adopted to promote collective bargaining by this category of workers, including in the context of the national wage policy. Noting with regret the absence of a response from the Government on this subject, the Committee requests it to ensure that information is provided on the measures adopted or envisaged to ensure that the organizations of public servants not engaged in the administration of the State have at their disposal machinery through which they can negotiate all of their terms and conditions of work and employment, including remuneration.