Report in which the committee requests to be kept informed of development - REPORT_NO327, March 2002

1. 781. The National Union of Independent Trade Unions of Togo (UNSIT) presented the complaint against the Government of Togo in a communication dated 30 September 2000, received by the ILO on 11 June 2001. The Government sent its observations in a communication dated 7 January 2002.
2. 782. Togo has ratified the 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).

A. The complainant's allegations

1. 783. In its communication dated 30 September 2000, the National Union of Independent Trade Unions of Togo (UNSIT) states that the violations of trade union rights to which the present complaint refers, which affect UNSIT and its teaching federation (FETREN/UNSIT), are taking place in a context of an endemic crisis in the schools sector that has continued for many years. The crisis has deepened since 1998, with regular teachers experiencing an erosion of their purchasing power and considerable delays in payment of their salaries; many have not received their salaries at all, while the situation is even worse for assistant teachers.
2. 784. The deepening of the crisis in 1998-99 and the delays and non-payment of salaries led to a strike of three and a half to four months. The school year was thus reduced to four and a half months of teaching. The Ministry of Education insisted on keeping to the appointed dates for the end-of-year examinations, despite a warning from FETREN/UNSIT, which wrote to the national education authorities on 4 June 1999 to protest against the working conditions experienced by teaching staff and their repercussions for students and demanding, inter alia, that the salary and social allowances arrears be paid. Since there was no reaction, the union issued a strike warning on 9 June and on 12 June announced a boycott of examination invigilation and marking. The examinations did, however, take place, in what the complainant organizations describe as utter chaos. In an attempt to draw lessons from the events of 1998-99 and ensure a proper start to the following school year, the complainant organization met with the Minister for Education on 5 September 1999 and presented a list of grievances. The only tangible result was that the start of the school year was postponed from 4 to 18 October. On 1 October, the union’s General Assembly voted to issue a strike warning and on 8 October announced a boycott of the beginning of the school year. Over the next ten days, the complainant and other teachers’ organizations met with the Prime Minister, ministers for education, the civil service ministers and technical education and heads of ministry.
3. 785. Since no tangible result was forthcoming from the meetings, the strike began on 18 October 2000, the first day of the school year. Since the authorities were insisting on maintaining the status quo, the complainant organizations organized demonstrations and press conferences to raise public opinion at home and abroad, much to the Government’s displeasure. An initial march planned for 8 November was banned one day in advance by the Minister for the Interior on the false pretext that it was part of an "international plot against the Togolese State". The demonstration, which involved some 4,000 participants, nevertheless took place and was peaceful. The complainant organizations also brought a legal case against the Minister for the Interior for the false accusations that he made publicly against the union; however, the proceedings ended in deadlock, largely because of the 10 million CFA francs in security demanded by the court on the orders of the authorities (the usual sum for such cases is 25,000 francs).
4. 786. A second march, planned for 8 December, was not only banned, but was forcibly prevented from beginning. Large numbers of police and militia attacked the participants as they gathered. Several teachers (Mr. Nouwossan, Mr. Zekpa, Mr. Toffa and Mr. Atisso) and students (Mr. Nyaledome and Mr. Anthony) were arrested, beaten and taken to the central police station, where they were subjected to drubbing and other degrading treatment. The previous day, a school superintendent, Mr. Bouame, had been attacked as he was distributing leaflets advertising the demonstration; he was held for 24 hours and once again severely beaten. The secretary-general of UNSIT, Mr. Gbikpi-Benissan, and the secretary-general of FETREN, Mr. Allagua-Kodegui, were arrested and held for eight hours at Lomé Central Prison. Together with a third teacher, Mr. Comlan, they were accused of spreading false information, though the accusation was subsequently withdrawn after a national and international public awareness campaign. Other demonstrations, previously planned for 16 December 1999 and 8 and 16 January 2000, were also banned.
5. 787. Since the first term of the 1999-2000 school year was over before lessons had really been able to begin, the National Assembly requested the Government to resume negotiations with teachers. The Government chose, instead, to issue an ultimatum to return work first on 4 and then on 8 January or resign. At a meeting with the complainant organizations on 18 January, the Minister for Education made any resumption of negotiations conditional on the return to work. On 7 February, the Minister for the Civil Service announced a "census" of teachers on 10 February, for which teachers would have to produce a certificate of attendance at work. The real purpose was to identify and dismiss strikers. The complainant organizations met with the Minister on 9 February to express their concerns in connection with the census, but there was no result. Despite their reservations about the true nature of the operation, they called on all members to go to work and participate in the procedure. However, a number were sent away since the census officials claimed that they were formally prohibited from registering strikers. During the operation, the Government ensured that each teacher registered received a month’s salary. Since the census officially ended, the counting has continued; hundreds of teachers who were not registered or paid are still waiting for their salaries, and there is total chaos.
6. 788. To justify the operation, the Civil Service Ministry issued several Decrees (No. 057/MFTPE on the absence without leave of 81 teachers; No. 093/MFTPE on the absence without leave of a further 22 teachers; No. 229/MFTPE on a further 16 teachers and No. 965/MFTPE on six more), which ordered that no salary be paid for the period of absence. As of the date of this complaint, 126 teachers remained arbitrarily deprived, since October 1999, of their scant and irregularly paid salaries; for some, this represents eight months of salary and for others over 15 months of salary.
7. 789. The complainant organizations emphasize that they have followed the procedure established for the settlement of labour disputes and continually called for a return to negotiations, for which they remain ready. As to the substance, the strike was a legal form of action in view of the grievances concerning rank and the payment of many months of salary arrears, family allowances and subsidies. Instead of proceeding to genuine negotiations, the Government has used intimidation and repressive measures that violate, in particular, the right to strike, which is guaranteed by the national Constitution, the Civil Service Charter and the Labour Code, as well as by ILO Conventions Nos. 87 and 98, which Togo has ratified. The Decrees issued by the authorities have no legal foundation and are additional violations of that right. The situation of assistant teachers is even worse than that of regular teachers and the complainant organizations propose to submit an additional complaint to the Committee on that issue.
8. 790. Finally, the complainant organizations call for condemnation of the Government’s violations of freedom of association, the rescinding of the decrees violating the rights of the 126 teachers and the restoration of the rights of all assistant teachers until a ruling is made on their case.

B. The Government's reply

1. 791. In its communication dated 27 December 2001, the Government states that, in implementation of Conventions Nos. 87 and 98, ratified by Togo, the Constitution in articles 30 and 39 guarantees the exercise of freedom of association, assembly and peaceful demonstration. Article 39 recognizes workers’ right to strike in accordance with the relevant laws, including Decree No. 91-167 on the right to strike for public servants.
2. 792. Article 2 of that Decree defines a strike as a collective stoppage of work preceded by a warning issued by representative organizations of the relevant occupational group. While the legislator, in adopting the Decree, did not impose majority or quorum requirements for strikes, it was nevertheless intended that a strike be the act of a relatively significant number of workers. The documents submitted by the complainants themselves (the five lists noting the absence of teachers without leave) demonstrate that the number involved is relatively small in the context of the national school system and that they were encouraged by UNSIT to strike in order to demand the immediate payment of six months’ salary in some cases and a change of rank in other cases.
3. 793. While recognizing the substance of the strikers’ salary claims, the Government recalls that these are entirely the consequence of the "general, unlimited and non-negotiable" strike in 1992, led by the current secretary-general of UNSIT on behalf of a groups of unions and in concert with political parties, to force the Head of State to resign. The Government has the greatest difficulty in honouring its commitments to the workforce as a whole since public revenues barely cover the payroll. It is unrealistic for UNSIT to demand that all teachers receive all back pay before the return to work.
4. 794. In fact, UNSIT is conducting a tug-of-war with the authorities and has no compunction in involving students’ associations. This begs the question as to the real motive for this strike, which is not supported by the majority of teachers. The movement is thus acting unlawfully, in contravention of article 2 of Decree 91-167. The Government was forced to act by invoking article 5 of the same Decree, which provides that failure to comply with article 2 shall lead to the application of the appropriate penalties under the statutes governing the relevant workers. The regular teachers’ absence without leave was recorded on the basis of these provisions. As regards assistant teachers, their refusal to retain their current legal status represents a substantial modification of their public service contract.
5. 795. Despite the irregularities associated with the strike movement and the legality of the penalties that could have been imposed on the strikers, the Government did not take measures as severe as would have been appropriate to this type of case. It took a lenient line because of its ongoing commitment to social dialogue. Hence, all teachers who returned to work or applied to return have had the sanctions against them lifted: the Government attaches a list of 48 of the strikers who returned to work. The Government respects workers’ rights and freedoms but also has to protect the public interest. Thus, it was obliged to take action against the isolated acts of a handful of teachers, which were in contrast to the vast majority of their colleagues who realized the harmful and illegal nature of strikes based on political motivations or unrealistic objectives.
6. 796. The Government states that it finds surprising and illogical the allegation that the census was directed against strikers. Why would the State use its limited resources to do that when it only had to ask the regional inspectors to go out and obtain a list of strikers? The truth is quite different. It was not a single-profession census; it covered all State agents and public servants, be they permanent, temporary or contractual.
7. 797. As regards the strike bans, the Government states that, on the basis of the information in its possession, the Ministry of the Interior had to intervene to prevent a repetition of the destruction of public and private property that had occurred in the past.
8. 798. In connection with the detention of Mr. Gbikpi-Benissan and Mr. Allagua-Kodegui in the context of the events at the Agbalepedogan Lycée in Lomé, the Government makes reference to the explanations provided in response to the complaint previously submitted to the Committee by the World Confederation of Labour [Case No. 2071].

C. The Committee's conclusions

1. 799. The Committee notes that in this case the allegations concern acts of violence and arrests of trade unionists during a strike organized by a teachers’ union to protest at salary payment delays and non-payment and the adoption of decrees stripping certain teachers of their rights. The Committee also notes that the Government recognizes the substance of these salary claims, but explains that it cannot honour them because of the state of public finances; it also states that the strike was the action of only a minority of workers and that the forces of order had to intervene to prevent the destruction of public and private property.
2. 800. As regards the central issue, namely the strike by teachers in support of their grievances, the Committee recalls that the right to strike is one of the essential means through which workers and their organizations may promote and defend their economic and social interests [Digest of decisions and principles of the Freedom of Association Committee, 1996, para. 175] and that the education sector does not constitute an essential service in respect of limitations of the right to strike [Digest, op. cit., para. 545]. The Committee notes that, in the case in point, the dispute appears to have been lengthy and that, after only four and a half months of lessons in the 1998-99 school year, lessons were not really resumed in the first term of the 1999-2000 school year. However, the Committee must view the events in context and recalls, in relation to the substance, the recommendations that it made in connection with the situation in Togo when it expressed (in June 2000) the firm hope that the problems of a social nature, including those caused by delayed payment of salaries, confronted by the workers of Togo might be settled within the framework of a dialogue between the Government and the trade union organizations [Case No. 2071, 321st Report, G.B., Series B, No. 2, Vol. LXXXIII, 2000, paras. 435-436]. While taking into account the financial difficulties referred to by the Government, the Committee emphasizes that social problems of this order and breadth can only move towards a solution through social dialogue and reiterates this appeal to the Government.
3. 801. As regards the legality of the nationwide strike, the Committee notes that the complainants claim to have complied with the conditions of form and substance, while the Government considers that FETREN/UNSIT acted unlawfully in that the strike was decided and conducted only by a minority of workers. While taking note of the Government’s arguments, the Committee observes that article 2 of Decree No. 91-167 only stipulates in this connection that a warning shall be issued ten days in advance by the representative organization -- two obligations met by the complainants -- and does not lay down any requirement for a quorum or majority. Since the strike was legal, the Government was not entitled to use decrees to take measures of retribution against workers who were merely exercising their right to strike within the law. The Committee therefore invites the Government rapidly to revoke the decrees in question and restore the rights of all teachers still affected by them and to keep it informed of developments in this regard.
4. 802. As regards the arrests of the secretary-general of UNSIT and the secretary-general of FETREN, the Committee recalls that it has already dealt with precisely this question and refers to its conclusions and recommendations on the matter [Case No. 2071, op. cit., paras. 428-436]. The Committee also recalls the comments made on that occasion with reference to the acts of violence and arrests that accompanied the events. While persons engaged in trade union activities or holding trade union office cannot claim immunity in respect of the ordinary criminal law, trade union activities should not in themselves be used by the public authorities as a pretext for the arbitrary arrest or detention of trade unionists [Digest, op. cit., para. 83]. Moreover, the Committee emphasizes that trade union rights include the right to organize public demonstrations [Digest, op. cit., para. 136] and that, while trade unions must conform to the general provisions applicable to all public meetings and must respect the reasonable limits which may be fixed by the authorities to avoid disturbances in public places, the use of the forces of order during trade union demonstrations should be limited to cases of genuine necessity [Digest, op. cit., paras. 141 and 146]. While the Committee will not pursue investigation of this aspect of the case, as the persons concerned have been freed, it requests the Government, in future, to refrain from intervening in the demonstrations held in such circumstances and from detaining trade unionists in such cases.
5. 803. As regards assistant teachers, UNSIT states in general terms that their situation is worse than that of regular teachers and that it proposes to make a detailed complaint on the matter, which will be examined by the Committee in the context of the evidence provided if the complainant organization follows up its intention.