Report in which the committee requests to be kept informed of development - REPORT_NO330, March 2003

1. 1054. The complaint is contained in a communication dated 15 April 2002 from the Workers’ Trade Union Confederation of Togo (CSTT). The CSTT presented additional information in support of its complaint in a communication dated 14 May 2002.
2. 1055. The Government sent its observations in communications dated 6 June and 31 December 2002.
3. 1056. Togo has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 1057. The CSTT states that it was provided with the information, on which the complaint was based, by the National Trade Union of Food and Agriculture Industries (SYNIAT) via its General Secretary, Mr. Roger Boko Awity, himself a former employee of the company New Seed Processing Industry Oil of Togo (NIOTO); his letter asking the CSTT to file a complaint before the Committee is attached to the complaint.
2. 1058. The complaint sets out two allegations: on the one hand, the dismissal by the NIOTO of Mr. Awity, preceded by acts of intimidation within the context of his trade union activities; and, on the other hand, NIOTO’ s refusal to organize elections of staff representatives and to authorize the trade union members among its employees to take part in training organized for their benefit by the trade union.
3. 1059. As regards the first allegation, the CSTT states that during a period of technical unemployment, the NIOTO dismissed Mr. Awity with effect from 1 November 2001 (with payment of a compensatory allowance and the settlement of all dues) along with 11 other employees; a copy of Mr. Awity’s letter of dismissal was annexed to the complaint. The CSTT maintains that, contrary to article 21 of the interoccupational collective agreement of Togo, this dismissal did not take into account the qualification, length of service, or family commitments of the workers concerned. Furthermore, the dismissal followed the intimidations and threats to which Mr. Awity had been subjected in the context of his trade union activities. The CSTT reports “a certain aversion to trade unions” on the part of the NIOTO company, and indicates that the dismissal case is currently before the Lomé Industrial Court. Finally, the CSTT states that since a dismissal on 8 October 2002, the NIOTO company has recruited several workers in defiance of the right of dismissed employees to be hired, under paragraph 6 of article 21 of the interoccupational collective agreement of Togo.
4. 1060. As regards the second allegation, the CSTT maintains that the NIOTO company, many of whose employees are members of SYNIAT, refuses to organize the elections of staff representatives. The CSTT states in this respect that in a memorandum dated 7 February 2002, a copy of which was annexed to the complaint, the company informed its employees that it had not received any candidatures for the elections and that it was therefore bringing this fact to the attention of the Labour and Social Laws Inspectorate “to be placed on record so that it could authorize non-union staff to stand for election”. The CSTT emphasizes that in its reply dated 11 February 2002 (a copy of which was annexed to the complaint), the competent labour inspectorate considered that only the employees, and not the trade unions themselves, had been informed that elections were being organized. Consequently, it instructed the company to begin organizing new elections by sending letters to the interested trade unions inviting them to submit lists of candidates; to date, according to the CSTT, the NIOTO company has refused to organize new elections. In his letter to the CSTT asking it to bring a complaint before the Committee, Mr. Awity alleges that the company director had told the outgoing staff representatives that “it was not his duty to deal with the unions. He only had to deal with his employees.”
5. 1061. Finally, the CSTT claims that the NIOTO company refuses to allow employees carrying out trade union functions to participate in training organized by the trade union. The CSTT attaches to the complaint a copy of the letter refusing leave of absence to one of the company’s employees – Mr. Abotsi-Adjossou; the letter is addressed to the Deputy General Secretary the CSTT.
6. 1062. In support of these allegations, the CSTT asserts that the NIOTO company’s attitude goes against: (a) the protection against the dismissal of staff representatives and trade union officials provided under article 8 of the collective agreement of Togo industries; and (b) the right to reinstatement of employees dismissed on economic grounds or as a result of restructuring. This attitude therefore prejudices the rights of unionized workers in the company.
7. 1063. In its communication of the 14 May 2002, the CSTT attaches by way of additional information a new letter from the labour inspectorate dated 27 February 2002 addressed to the company’s managing director. In this letter, the managing director contests the procedure, set out by the labour inspectorate in its communication of 11 February, for informing the trade unions of the organization of elections. The managing director considered that a procedure of this kind was not expressly provided for in Order No. 321?54/ITLS of 2 April 1954. In reply, the labour inspectorate reiterates the terms of its previous letter and warns the managing director against holding elections without notifying the trade unions in advance. The CSTT also submits a copy of article 21 of the interoccupational collective agreement of Togo regarding collective redundancies (referred to in its complaint).

B. The Government’s reply

1. 1064. In its initial communication of 6 June 2002, the Government addresses the first allegation set out in the complaint by stating that, in turning to the industrial tribunal, Mr. Awity chose a means of recourse that was appropriate for the settlement of his particular case.
2. 1065. Regarding the second allegation, in the communication dated 31 December 2002, the Government puts forward the following arguments. It stresses that the inquiry carried out into this aspect of the complaint shows that the legislation does not oblige the employer to inform the trade unions specifically for the purpose of asking them to nominate candidates for the posts of staff representatives. The Government bases its opinion in this respect on the text of section 4 of Order No. 321-54/ITLS of 2 April 1954 which it cites in its reply as follows: “The representatives are elected from the lists drawn up by the most representative organizations, where such organizations exist within each establishment for each category of staff.” The Government adds that, in the absence of any specific provisions, a practice has developed by which the head of the establishment provides information to the workers and their representatives by way of notices in places set aside for this purpose.
3. 1066. The Government thus concludes that it can only invite the parties to refer to the competent judicial authority, as provided in section 176 of the Labour Code, namely the industrial tribunal.

C. The Committee’s conclusions

1. 1067. The Committee notes that the complaint raises, on the one hand, the question whether Mr. Awity’s dismissal by the NIOTO company was motivated entirely or in part by his trade union activities, particularly as it had been allegedly preceded by other acts of anti-union discrimination in the course of his employment. On the other hand, the complaint raises the question whether, as regards the election of staff representatives and the refusal to grant leave of absence in order to participate in training organized by the trade union, there had been a failure on the part of the NIOTO company to respect the principles of freedom of association.
2. 1068. As regards the first question, the Committee notes that the CSTT alleges that Mr. Awity’s dismissal was decided in an arbitrary fashion and followed numerous acts of intimidation and threats to which he had been subjected in the context of his trade union activities. The Committee further notes that legal proceedings are under way and that the CSTT maintains that the NIOTO company has recently hired several workers in defiance of the priority which should be accorded to workers dismissed in the context of collective redundancies, under the terms of the interoccupational collective agreement of Togo. The Committee notes that the Government confines itself to referring to the legal proceedings initiated by Mr. Awity, which it considers to be the appropriate means of recourse to resolve an individual case of this kind.
3. 1069. As regards the second question, the Committee notes that according to the CSTT, the NIOTO company is refusing to organize elections of staff representatives. The Committee notes in this respect that the two letters from the labour inspectorate submitted by the CSTT reveal a divergence of opinions between the inspectorate and the NIOTO company as to the procedure to be followed for informing the workers’ organizations about these elections in order for them to be able to put forward candidates. In this respect the Committee notes that, according to the Government, the employer is under no obligation to inform the trade unions specifically to ask them to nominate candidates for the purposes of consequently electing staff representatives, and the Government calls on the parties to refer the matter to the judicial authorities.
4. 1070. Finally, the Committee takes note of the letter from the director of the NIOTO company to the Deputy General Secretary of the CSTT refusing leave of absence for Mr. Abotsi-Adjossou, an employee of the NIOTO company, “owing to service requirements”. The Committee notes that the Government’s reply does not address this question.
5. 1071. As regards the first question, the Committee wishes to recall the following principles. In general, no person should be dismissed or prejudiced in his or her employment by reason of trade union membership or legitimate trade union activities, and it is important to forbid and penalize in practice all acts of anti-union discrimination in respect of employment [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 696]. The Committee emphasizes in this respect that all workers should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment and that this protection is particularly desirable in the case of trade union officials. Moreover, the Government is responsible for preventing all acts of anti-union discrimination and it must ensure that complaints of anti-union discrimination are examined in the framework of procedures which should be prompt, impartial and considered as such by all the parties concerned [see Digest, op. cit., para. 738]. Finally, the Committee recalls that in cases of the dismissal of trade unionists on the grounds of their trade union membership or activities, the Committee has requested the Government to take the necessary measures to enable trade union leaders and members who had been dismissed due to their legitimate trade union activities to secure reinstatement in their jobs and to ensure the application against the enterprises concerned of the corresponding legal sanctions [see Digest, op. cit., para. 756].
6. 1072. As regards the case in question, the Committee notes that, according to the information provided by the CSTT, Mr. Awity was dismissed with effect from 1 November 2001, when the NIOTO company was experiencing a period of technical unemployment, and that 11 other employees were dismissed at the same time; the Committee notes in this respect that the CSTT does not specify whether these other employees were union members or engaged in union activities. Furthermore, the wording of the complaint does not make it clear whether the arbitrary nature of the dismissal applied only to Mr. Awity or whether it also concerned the 11 other employees. Finally, the Committee notes that the CSTT refers to another dismissal by the NIOTO company on 8 October 2002; the Committee notes that it is not specified whether that dismissal also affected trade union members or officials. While noting the allegation that Mr. Awity’s dismissal followed a series of acts of intimidations and pressure in the context of his trade union activities – no further details of which are given – the Committee can only observe that, at this stage, it has not been clearly established that Mr. Awity’s dismissal was due, even in part, to anti-union discrimination. Under these circumstances, the Committee requests the Government to keep it informed as to the outcome of the legal proceedings relating to Mr. Awity’s dismissal. If it emerges that the dismissal was indeed motivated by anti-union discrimination, the Committee requests the Government to take immediate measures so that Mr. Awity is reinstated and to keep it informed in this respect.
7. 1073. As regards the second question, the Committee wishes to emphasize the fact that for freedom of association to be genuine, workers’ organizations must be able to defend and promote the interests of their members and must enjoy all the facilities necessary to carry out their functions appropriately. Otherwise, the right of workers freely to join organizations of their own choosing and the right of workers’ organizations freely to carry out their activities would be undermined.
8. 1074. Regarding the election of staff representatives at issue in this case, the Committee notes that it concerns the election of staff representatives within the enterprise, not internal elections within the workers’ organizations. Furthermore, according to the Government, it is the representative organizations that must establish lists of candidates on the basis of which staff representatives are elected. Finally, the Committee notes that there is a disagreement between the labour inspectorate and the NIOTO company as regards the employer’s obligation to inform the unions themselves that elections are to be held. The Committee also notes that, while recognizing that the procedure which it recommends is not based on any specific legislative or regulatory provision, the labour inspector is convinced that the trade unions had not been duly informed that elections were being held and that the procedure used by the NIOTO company (in the past and for the election at issue) is fraught with weaknesses. The Committee has also taken note of the warning issued by the labour inspectorate to the NIOTO company and notes that the CSTT’ s allegation that the NIOTO company has not, to date, organized elections is not refuted by the Government. While noting the Government’s position regarding the absence of any obligation on the part of the employer to inform the trade unions specifically with a view to the nomination of their candidates, the Committee notes that the nomination of candidates for staff elections is one of the normal functions of a representative workers’ organization. Furthermore, and without expressing any opinion on the interpretation or the application of Order No. 321?54/ITLS of 2 April 1954, the Committee requests the Government to examine the question, and to ensure that elections are organized and the interested workers’ organizations are in a position to carry out their proper functions and in particular to nominate their candidates for staff elections. The Committee requests the Government to keep it informed in this respect.
9. 1075. Finally, as regards the leave of absence for Mr. Abotsi-Adjossou, the Committee recalls that, although trade union officials can be expected to obtain permission from their employer before taking leave to carry out their trade union activities, this permission should not be denied unreasonably. Under these circumstances, the Committee requests the Government to examine this aspect of the complaint and to keep it informed of the reasons linked to the “service requirements” invoked by the NIOTO company to justify its refusal.