Report in which the committee requests to be kept informed of development - REPORT_NO344, March 2007

387. The complaint is contained in communications dated 29 May and 12 June 2006 from the General Labour Federation of Burkina Faso (CGT–B), the National Confederation of Workers of Burkina (CMTB), the Trade Union Confederation of Burkina Faso (CSB), Force Ouvrière/National Union of Free Trade Unions (FO/UNSL), the National Organization of Free Trade Unions (ONSL) and the Trade Union of Workers of Burkina Faso (USTB).

1. 388. The Government sent its observations in a communication dated 3 October 2006.
2. 389. Burkina Faso 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 complainants’ allegations

1. 390. In their communications of 29 May and 12 June 2006, the complainants allege that, as a result of their participation in a general strike in support of a number of socio-economic claims, striking workers and their organizations were subjected to threats, intimidation and widespread requisitioning by the Government and employers, based on a restrictive definition of strikes in law.
2. 391. In particular, they claim that, even though the right to strike is protected by the Constitution, article 22 of which provides that “the right to strike is guaranteed in Burkina Faso. It shall be exercised in accordance with the laws in force”, Act No. 33/2004/AN issuing the Labour Code defines this right in a very restrictive manner. In section 351, the Act provides that: “A strike is a concerted and collective cessation of work with a view to supporting pre-determined occupational claims, which the employer refuses to meet. Any stoppage of work that does not correspond to an occupational claim is unlawful. The right to strike does not authorize workers to perform their work in conditions other than those set out in their employment contract or as practised in the occupation and does not include the right to use the premises of the enterprise in an arbitrary manner.”
3. 392. In the view of the complainants, this definition is restrictive both in terms of the purpose of “supporting […] occupational claims” and the condition placed on its exercise, namely “pre-determined occupational claims, which the employer refuses to meet”. Sections 351 et seq. (352–358) of the Labour Code therefore constitute serious hindrance to the exercise of the right to strike and call into question the very existence of unions of workers covering several employers, such as central organizations, federations and confederations of trade unions.
4. 393. The complainants allege that, based on these provisions, employers are encouraged by the labour administration and the Government to impose sanctions on workers who comply with calls to strike made by central organizations of trade unions.
5. 394. According to the information provided by the complainants, the negotiations between the Government and the trade unions that began on 4 May 2006 broke down the following day for reasons attributable to the Government. The latter decided to raise the price of hydrocarbons and other motor oils by between 5 and 39 per cent, even though this was a prominent issue in the minimum platform of trade union claims and the list of concerns submitted to the Government for the negotiations of 4 and 5 May 2006. Thereafter, the central organizations of trade unions and the autonomous trade unions left the negotiating table and issued a strike call for 23 and 24 May 2006.
6. 395. The strike notice, in which the central organizations of trade unions and the autonomous trade unions warned that they were also calling on workers in the private, parapublic and informal sectors to strike, was communicated to the President of Burkina Faso, the President of the Council of Ministers and the Director-General of Labour and Social Security. The objective of the strike was to demand that the Government “respect workers and their trade union organizations, reverse the decision of 4 May to increase the price of hydrocarbons and reconsider its response to the various issues covered by their platform”. This platform includes wage and pension increases, the various pending cases relating to the execution of court rulings and orders favourable to workers, the reduction of taxes on the main consumer goods, the establishment of unemployment benefit, an increase in the rate of family allowances, action to remedy the delays in promoting public officials, the implementation in the private sector of the wage increases decided upon by the Government in 2004 and respect for freedom of association and the right to strike and, consequently, the setting aside of penalties and the halting of threats against strikers.
7. 396. In response to the strike notice, the Director-General of Labour and Social Security sent a communication to the trade unions (a copy of which is attached to the complaint) in which he reminds them that section 351(2) of the Labour Code provides that “any stoppage of work that does not correspond to an occupational claim is unlawful” and indicates that this must be an occupational claim made by workers to their employers, which is not the case of the workers covered by this strike call. He adds that section 357 provides that “Any lockout or strike is prohibited before conciliation and arbitration procedures have been exhausted”, as they are in the context of collective disputes between workers and their respective employers, but not in the present case. Noting that employers in the private and informal sectors are not parties to the negotiations between the Government and the trade unions, he invites them to consider all the consequences of this strike movement so that the workers do not lose the rights guaranteed to them in law.
8. 397. According to the complainants, the Director-General’s communication constitutes a highly questionable interpretation of the Labour Code, which challenges the exercise of the right to strike. The above interpretation was also adopted by the President of the National Council of Employers of Burkina Faso, in a letter published in the press on Monday, 22 May, inviting its members to abide by the provisions of the relevant laws and regulations.
9. 398. In conclusion, the complainants call for sections 351 et seq. to be withdrawn from the Labour Code in accordance with the Constitution of Burkina Faso and ILO Convention No. 87.
10. B. The Government’s reply
11. 399. In its communication of 3 October 2006, the Government refers to all the provisions adopted in Burkina Faso since it achieved national sovereignty which respect and give effect to freedom of association and its closely associated rights, including the right to strike, both in the various Constitutions and in the law.
12. 400. In addition, Burkina Faso has ratified the relevant ILO Conventions on freedom of association and is demonstrating its goodwill through its efforts to give effect to the related international commitments.
13. 401. With regard to the allegations that the labour administration and the Government encourage employers to penalize striking workers, the Government states that once the strike notice was received, its role was confined to informing the trade union organizations of the failure to comply with the legal provisions in force relating to strikes, as the procedures established under sections 336–347 of the Labour Code had not been exhausted. The labour administration was therefore merely exercising one of its functions, namely to provide guidance in the form of advice and recommendations to the social partners who, in this case, consisted of the workers. The Government also emphasizes that the trade union organizations responded to the call to strike without any hindrance on its part.
14. 402. The Government maintains that its attitude is compatible with the principle of the Committee on Freedom of Association that “legislation which provides for voluntary conciliation and arbitration in industrial disputes before a strike may be called cannot be regarded as an infringement of freedom of association, provided recourse to arbitration […] does not, in practice, prevent the calling of the strike” [see Digest of decisions and principles of the Freedom of Association Committee, fourth edition, 1996, para. 378, and 238th Report, Case No. 1300, para. 292].
15. 403. On the question of the unconstitutionality of sections 351–358 of the Labour Code, the Government states that the provisions in question do not in any way prejudice the right to strike, which is guaranteed by the Constitution of Burkina Faso. The Government recalls that these provisions, after defining strike action, set out the conditions governing the exercise of this right, which is not contrary to article 22 of the Constitution, under the terms of which the right to strike “shall be exercised in accordance with the laws in force”. The laws in force in this case are the Labour Code and Act No. 45/60 of 25 July 1960, with which the labour administration rightly calls on the trade union leaders to comply. The Government refers in this respect to Article 8, paragraph 1, of Convention No. 87, under which, “In exercising the rights provided for in this Convention workers and employers and their respective organisations, like other persons or organised collectivities, shall respect the law of the land.” The Government further recalls that, during its formulation, the Labour Code was submitted for opinion to the Labour Advisory Committee, a tripartite body set up under the responsibility of the Ministry of Labour by section 375 of the Labour Code, and that it was examined and adopted by that body. The Government accordingly emphasizes the participation of workers, through their representatives, in the process of drawing up Act No. 33/2004/AN, which was the result of a minimum level of consensus between the State and the social partners.
16. 404. Lastly, the Government affirms that sections 351–358 are not such as to prejudice the application of ILO Convention No. 87, nor to obstruct the exercise of the right to strike, as evidenced by the numerous strikes that have been held without hindrance since the complaint was made.

C. The Committee’s conclusions

1. 405. The Committee observes that this case concerns allegations that striking workers and their organizations were subjected to threats, intimidation and widespread requisitioning by the Government and employers, as a result of their participation in a general strike in support of a number of socio-economic claims and that these measures are based on a restrictive definition of strikes in law.
2. Legal aspects
3. 406. The Committee notes the complainants’ allegations that, even though the right to strike is protected by the Constitution, Act No. 33/2004/AN issuing the Labour Code, in sections 351–358, recognizes this right in a very restrictive manner due to the narrow definition of its purpose which runs counter to the national Constitution and to Convention No. 87. In particular, the fact of requiring a strike to be motivated by occupational claims, in the context of the relations between workers and their respective employers, in the view of the complainants, prejudices the very existence of unions of workers covering several employers, such as central organizations, federations and confederations of trade unions, which would thereby be deprived of the possibility of exercising the right to strike. The Committee notes the Government’s statement that the sections in question do not in any way prejudice the right to strike, but establish the conditions for its exercise, in accordance with the provisions of article 22 of the Constitution, which provides that the right to strike “shall be exercised in accordance with the laws in force”, and in accordance with the principles of Convention No. 87. The Committee further notes that, according to the Government, the numerous strikes that have been called without hindrance since the complaint was made support its claims.
4. 407. The Committee notes that section 351 of the Labour Code provides that: “A strike is a concerted and collective cessation of work with a view to supporting pre-determined occupational claims, which the employer refuses to meet. Any stoppage of work that does not correspond to an occupational claim is unlawful ….” The Committee recalls in this regard that the right to strike is one of the essential means through which workers and their organizations may defend their economic and social interests, which not only concern better working conditions or collective claims of an occupational nature (as provided in section 351), but also the seeking of solutions to economic and social policy questions and problems facing the undertaking which are of direct concern to the workers [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, paras 522 and 526]. The Committee emphasizes that it has, on two occasions in the past, drawn the Government’s attention to these principles in relation to legislative provisions that have now been repealed, but which imposed similar constraints with regard to the objectives pursued by workers when exercising the right to strike [see 217th Report, Case No. 1089, para. 239, and 218th Report, Case No. 1131, para. 776].
5. 408. Noting the complainants’ allegation that this provision would preclude the exercise of the right to strike by trade union organizations covering several employers, such as central organizations, federations and confederations of trade unions, the Committee recalls that a ban on strike action not linked to a collective dispute to which the employee or union is a party is contrary to the principles of freedom of association [see Digest, op. cit., para. 538]. The Committee therefore requests the Government to review the legislation with the social partners and to bring it into conformity with the principles of freedom of association referred to above.
6. Factual aspects
7. 409. The Committee notes that, following the breakdown of the negotiations between the Government and the trade unions begun on 4 May 2006, the central organizations of trade unions and the autonomous trade unions issued a strike call for 23 and 24 May 2006. According to the strike notice, which concerned the public, private, parapublic and informal sectors, it was called to demand that the Government respect workers and their trade union organizations, cancel the decision of 4 May to increase the price of hydrocarbons and reconsider its responses to their various claims (including those for wage and pension increases, the various cases relating to the execution of rulings favourable to workers, the reduction of taxes on the main consumer goods, the establishment of unemployment benefit, an increase in family allowances, action to remedy the delays in promoting public officials, the implementation in the private sector of the wage increases decided upon by the Government in 2004 and respect for freedom of association and the right to strike and, accordingly, the setting aside of penalties and the halting of threats of penalties against strikers).
8. 410. The Committee notes the reply by the Director-General of Labour and Social Security to the strike notice (a copy of which was attached to the complaint), in which he reminded the trade unions that section 351(2) of the Labour Code provides that “any stoppage of work that does not correspond to an occupational claim is unlawful” and indicated that this must consist of an occupational claim made by workers to their employers, which was not the case of the workers covered by this strike call (particularly those in the private and informal sectors). He also recalled that section 357 provides that “any lockout or strike is prohibited before conciliation and arbitration procedures have been exhausted”, which also covers collective disputes between workers and their respective employers, and is not therefore applicable in the present case. He therefore called on the trade unions to consider all the legal consequences of the strike notice so that the workers did not lose the rights guaranteed to them in law. The Committee further notes that this interpretation was adopted by the President of the National Council of Employers of Burkina Faso in a letter published in the press on Monday, 22 May, the day before the strike.
9. 411. The Committee notes that, in the view of the complainants, the reply by the Director-General constitutes a highly questionable interpretation of the Labour Code, on the basis of which employers were encouraged by the labour administration and the Government to apply penalties to workers responding to strike calls. The Committee further observes that, other than threats, the complainants do not allege that penalties were in practice applied against workers. The Committee also notes that, according to the Government, the Director-General of Labour and Social Security confined himself to informing the trade unions of the failure to comply with the legal provisions in force respecting strikes, as the procedure established by sections 336–347 of the Labour Code had not been exhausted, especially in relation to conciliation and arbitration. The Committee recalls that although, as indicated by the Government, Article 8, paragraph 1, of Convention No. 87 provides that the law of the land shall be respected in exercising the rights provided for in the Convention; paragraph 2 provides that the law of the land “shall not be such as to impair, nor shall it be so applied as to impair, the guarantees provided for in this Convention”. According to the interpretation of the Director-General of Labour and Social Security, the exhaustion of conciliation and arbitration (section 257 of the Labour Code) relates to collective disputes between workers and their respective employers, which was not the situation in the present case. The Committee therefore concludes that the central organizations of trade unions and the autonomous trade unions were not in a position to exhaust these procedures as, in view of its purpose, the action of 23 and 24 May was not covered by the definition of a strike as set out in the Labour Code.
10. 412. Finally, the Committee notes the contradiction between the position of the complainants, who emphasize that the strike of 23 and 24 May 2006 gave rise to threats, intimidation and widespread requisitioning, and that of the Government, according to which the trade union organizations responded to the call to strike without any hindrance on its part. As the complainants have not provided any specific information concerning the use of requisitioning, the Committee requests the complainants to provide detailed information in this respect so that it may be in a position to examine this allegation.
11. 413. With regard to the allegations of threats and intimidation, the Committee considers that both the language used by the Director-General in his reply to the strike notice calling on “the trade unions to consider all the legal consequences of the strike action so that the workers did not lose the rights guaranteed to them in law” and the letter published by the National Council of Employers of Burkina Faso the day before the strike, indicating that there was no collective dispute with the workers as it was not party to the negotiations between the Government and the trade unions, and calling on its members to abide by the provisions of the law in this respect, could have had an intimidating impact on workers wishing to participate in the strike. The Committee recalls that organizations responsible for defending workers’ socio-economic and occupational interests should be able to use strike action to support their position in the search for solutions to problems posed by major social and economic policy trends which have a direct impact on their members and on workers in general, in particular as regards employment, social protection and standards of living [see Digest, op. cit., para. 527], and requests the Government, in accordance with the principles of freedom of association, to ensure that there is no further obstruction of the exercise of the right to strike.
12. 414. The Committee reminds the Government that it may avail itself of the technical assistance of the Office.