Report in which the committee requests to be kept informed of development - REPORT_NO349, March 2008

1. 514. The present complaint is contained in a communication from the Confederation of Trade Unions of Burundi (COSYBU) dated 26 January 2007.
2. 515. The Government sent its observations in a communication received on 11 June 2007.
3. 516. Burundi has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and the Workers’ Representatives Convention, 1971 (No. 135).

A. The complainant’s allegations

1. 517. In its communication of 27 January 2007, the COSYBU denounces the collective dispute between its affiliate, the University of Burundi Workers’ Union (STUB), and the university administration. The organization also complains about the negative attitude of the supervisory authorities, which is not helping to resolve the dispute.
2. 518. According to COSYBU, the dispute has been caused by differences in pay awards for teaching staff and non-teaching staff at the University of Burundi. COSYBU states that these two categories of workers have specific areas of responsibility but have always worked together in a harmonious and complementary manner, each being unable to function adequately without the other. Since 2000, both categories of staff have been governed by regulations that are distinct but harmonized, with the exception of a few category-specific provisions.
3. 519. In 2003, a salary increase of between 30 and 70 per cent, depending on status, was awarded to the university teaching staff. Non-teaching staff, who did not benefit from such a measure and considered this omission to be discriminatory treatment, launched a strike to demand a salary increase. This strike, lasting four months, led the Government to grant a 25 per cent increase in the salaries of non-teaching staff at the university. COSYBU alleges that this dispute is responsible for the unhealthy atmosphere within the university community.
4. 520. More recently, in October 2006, a salary increase of 80 per cent for university teaching staff was agreed. Once again, this salary increase did not apply to non-teaching staff, who therefore launched a strike in protest at this treatment which they considered discriminatory. COSYBU alleges a series of violations of the right to strike by the university administration and the supervisory authorities during the action.
5. 521. As regards the issue of coercion, COSYBU alleges that, on 14 December 2006, five members of the STUB executive committee, including the vice-chairperson, were questioned and imprisoned by the police at the request of the university administration. These union members were only released after five days of detention and no explanation was given. On 28 December 2006, three librarians, including the head librarian, were verbally intimidated and harassed by the university rector. These persons were instructed by means of an administrative mail, a copy of which is attached to the complaint, to keep the central library open despite the strike. On 9 January 2007, three members of the support staff were also allegedly intimidated by the university rector in an unsuccessful attempt to persuade them to resume work.
6. 522. In addition, the university administration reportedly recruited ten employees for the central library to replace the staff members on strike.
7. 523. The complainant organization states that the STUB has repeatedly called since the outset for the dispute to be resolved through negotiation. An exchange of views was organized on 29 December 2006 between the STUB and the university rector’s office at the request of the Inspector General for Labour and Social Security. At the end of the meeting, the two parties signed a memorandum of non-conciliation which was transmitted to the Ministry of Public Service, Labour and Social Security. The Inspector General for Labour and Social Security attached to the memorandum a recommendation, a copy of which is appended to the complaint, to set up an arbitration board, in accordance with the legislation in force regarding the settlement of collective labour disputes (Labour Code, section 198). However, according to COSYBU, the Ministry has not acted on this recommendation and would only advocate referral of the case to the courts for settlement of the dispute.
8. 524. Furthermore, the complainant organization deplores the rejection by the Ministry of National Education and Culture, which is responsible for the university, of a report submitted by the joint negotiating committee that it had set up in order to settle the dispute. The complainant claims that this rejection constitutes a violation of Article 4 of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). According to COSYBU, the report could have helped to settle the dispute.
9. 525. COSYBU expresses concern at the situation, since there have been repeated strikes at the university by students, teaching staff and non-teaching staff which prevent it from functioning properly. The complainant organization states that it is aware of the need to combine the socially desirable with the economically possible but notes that the authorities’ refusal to engage in dialogue is only exacerbating the situation.

B. The Government’s reply

1. 526. In its communication dated 12 March 2007, received on 11 June 2007, the Government indicates its wish to clarify certain aspects of the dispute.
2. 527. Firstly, the Government states that the dispute is not due to discriminatory treatment of non-teaching staff, as defined by section 6 of the Labour Code and by the Discrimination (Employment and Occupation) Convention, 1958 (No. 111). The Government reviewed the salary scale for university teaching staff in order to reverse the outflow of teaching staff to other institutions that were offering higher pay. Non-teaching staff are governed by different regulations and cannot claim discrimination. Even taking account of the concept of work of equal value, the Government considers that there can be no question of equating the work of a university professor with that of a manager in the university administration.
3. 528. The Government points out that it has encouraged dialogue in order to settle the dispute, as demonstrated by the various meetings held between the complainant organization, STUB representatives and the Ministry of Public Service, Labour and Social Security. The parties also met the Inspector General for Labour, who confirmed to them that there was no issue of discrimination in this case. The Government therefore maintains that it cannot be accused of failing to encourage social dialogue in order to find a peaceful solution to the dispute.
4. 529. As regards the cases of questioning and detention, the Government firstly points out that it does not advocate the use of force or other means of coercion in order to settle a labour dispute, and it asks trade unionists to do likewise. In this respect, it indicates that the trade unionists were detained as a preventive measure, since a number of people involved in the strike were arrested and investigated on suspicion of causing damage to work tools and the university restaurants during the strike.
5. 530. As regards the staff working in the university libraries, kitchens and restaurants, the Government recalls that the law provides in general that, in the case of strike action, a minimum service must be organized by the employer in consultation with union representatives. According to the Government, no interruption could be permitted to the restaurant and library services which were necessary for students continuing with their studies. Since these minimum services were not being provided during the strike, the university administration was obliged to reassign some casual workers for the provision of students’ basic needs and to recruit temporary workers to maintain the central library service.
6. 531. The Government adds that some of the staff members who were not on strike were reportedly harassed and held against their will. Recalling that this type of conduct on the part of strikers is punishable by law, the Government indicates its willingness to train its representatives to respect the law so that nobody is subjected to coercion during a collective dispute.
7. 532. The Government states that it does not consider recourse to arbitration to be appropriate since it would be unable in any case to satisfy the salary demands made by staff due to the lack of the necessary financial resources. It adds that the Ministry of Public Service, Labour and Social Security has the right to refuse recourse to arbitration and that the recommendation made to the complainant organization to refer the case to the courts does not violate either national legislation or any international convention ratified by Burundi, given that the Labour Code establishes the two alternative measures of arbitration and legal proceedings for ending strikes.
8. 533. Finally, as regards the joint committee set up by the Ministry of National Education and Culture to make proposals regarding salary and benefit increases for non-teaching university staff, the Government takes the view that the aim of reports prepared by technical committees is to inform decision-makers and that they are not agreements, as claimed by the complainant organization. The Government’s refusal to follow the proposals made by this committee cannot therefore constitute a violation of Article 4 of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

C. The Committee’s conclusions

1. 534. The Committee observes that this case concerns a collective dispute at the University of Burundi between the non-teaching staff – represented by the STUB, a union affiliated to COSYBU – and the university rector’s office; violations of the right to strike by the university administration and the police during the strike action; violation by the Government of the principles of freedom of association and of the right to collective bargaining both through its refusal to act on the recommendations of a joint technical committee set up to settle the dispute and through its refusal to submit the dispute to arbitration as provided for in national law in the event of failure of the preceding conciliation procedure.
2. 535. The Committee notes that, according to the complainant organization, members of the STUB executive committee, including its vice-chairperson, were questioned by police on 14 December 2006 during the strike and imprisoned. They were only released after five days of detention and no explanation was given. The Committee notes that the Government merely states in its reply that a number of people involved in the strike were arrested and investigated on suspicion of causing damage to work tools and the university restaurant during the strike. The Government adds that trade unions should not use force or other means of coercion to settle a labour dispute. In this respect the Committee recalls that trade unions should respect legal provisions which are intended to ensure the maintenance of public order; the public authorities should, for their part, refrain from any interference which would restrict the right of trade unions to organize the holding and proceedings of their meetings in full freedom [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 147]. As regards the arrest and detention of union leaders, which the Government does not appear to deny, the Committee wishes to recall that the preventive detention of trade unionists on the ground that breaches of the law may take place in the course of a strike involves a serious danger of infringement of trade union rights. Furthermore, the arrest of trade unionists against whom no charge is brought involves restrictions on freedom of association, and governments should adopt measures for issuing appropriate instructions to prevent the danger involved for trade union activities by such arrests [see Digest, op. cit., paras 70 and 77]. Having considered the information provided, the Committee expresses concern at the circumstances surrounding these arrests, particularly since they seem to have been made purely on the basis of assumptions. The Committee requests the Government to launch an independent inquiry into the circumstances surrounding the arrest and detention of the trade unionists and, if their detention proves to have been unjustified, to punish those responsible in order to discourage all harassment and further wrongful detention of trade unionists for legitimate activities. The Committee requests the Government to keep it informed of the results of this inquiry.
3. 536. The Committee notes the allegations by COSYBU that a number of workers were intimidated and threatened by the university administration in an attempt to persuade them to return to work. It also notes the assertion that the university administration reportedly recruited ten employees to work in the central library to replace the staff members on strike. The Committee notes the Government’s reply that this recruitment was justified by the need to continue to provide normal restaurant and library services for students. The Government adds that, since minimum services were not being provided during the strike, the university administration was obliged to reassign some casual workers for the provision of students’ basic needs and to recruit temporary workers to maintain a minimum service at the central library.
4. 537. The Committee notes that the Government refers, in relation to this case, to legislative provisions for determining a minimum service in the event of strike action. These provisions stipulate that a minimum service must be provided to ensure the safety and maintenance of equipment and facilities so that work may be resumed as normal once the strike is over (Labour Code, section 217). The provisions also stipulate that the trade union should be consulted when appointing workers to provide this minimum service (Labour Code, section 218).
5. 538. The Committee recalls that it has always recognized the right to strike as one of the essential means through which workers and their organizations may promote and defend their economic and social interests. Consequently, the establishment of minimum services in the case of strike action should only be possible in: (1) services the interruption of which would endanger the life, personal safety or health of the whole or part of the population (essential services in the strict sense of the term); (2) services which are not essential in the strict sense of the term but where the extent and duration of a strike might be such as to result in an acute national crisis endangering the normal living conditions of the population; and (3) in public services of fundamental importance. Furthermore, the determination of minimum services and the minimum number of workers providing them should involve not only the public authorities, but also the relevant employers’ and workers’ organizations. This not only allows a careful exchange of viewpoints on what in a given situation can be considered to be the minimum services that are strictly necessary, but also contributes to guaranteeing that the scope of the minimum service does not result in the strike becoming ineffective in practice because of its limited impact, and to dissipating possible impressions in the trade union organizations that a strike has come to nothing because of over-generous and unilaterally fixed minimum services. Finally, in so far as the strike is legal, the hiring of workers to break a strike in a sector which cannot be regarded as an essential sector in the strict sense of the term, and hence one in which strikes might be forbidden, constitutes a serious violation of freedom of association [see Digest, op. cit., paras 606, 612 and 632]. In the absence of information on any agreement between the employer and the STUB on the determination of minimum services to be provided in the case of strike action, the Committee takes the view that the recruitment and reassignment of workers by the administration of the University of Burundi in order to continue to provide normal restaurant and library services seriously impede the free exercise of trade union rights by non-teaching staff members, particularly their right to strike. The Committee expects that the Government will in future ensure full respect for the principles relating to the exercise of the right to strike as recalled above.
6. 539. The Committee further takes the view that section 218 of the Labour Code, which stipulates that the task of appointing workers to provide the relevant services and activities falls to the employer after consultation with the trade union body or, in its absence, with the works council, contravenes the principles which it has had occasion to recall in the past, namely that, in the determination of minimum services, legislation should provide for the matter to be resolved by an independent body if there is disagreement between the employer and the representative workers’ organization [see 292nd Report, Case No. 1679, para. 93]. Consequently, the Committee requests the Government to amend section 218 of the Labour Code in order to ensure full respect for this principle. The Government is requested to keep the Committee informed of all measures taken in this respect.
7. 540. The Committee notes the Government’s assertion that the university administration reported acts of violence against non-striking workers, some of whom were held against their will. If these reports are confirmed by the independent investigation, the Committee wishes to recall that the exercise of the right to strike should respect the freedom to work of non-strikers, as established by the legislation, as well as the right of the management to enter the premises of the enterprise. Similarly, the principles of freedom of association do not protect abuses consisting of criminal acts while exercising the right to strike [see Digest, op. cit., paras 652 and 667].
8. 541. The Committee notes the allegation that the Ministry of Public Service, Labour and Social Security refuses to set up an arbitration board, recommending legal action instead. From correspondence between the authorities, COSYBU and the STUB, a copy of which is attached to the complaint, it emerges that the STUB requested the Ministry of Public Service, Labour and Social Security to set up an arbitration board in a letter dated 25 October 2006. In a reply dated 2 November 2006, the Ministry refused to grant the request on the ground that there was no dispute between the non-teaching staff at the University of Burundi and their employer. On 4 December 2006, the STUB, after suspending the strike action between 13 November and 3 December to enable negotiations to proceed, resubmitted its request for an arbitration board to be set up. On 19 December 2006, the Inspector General of Labour and Social Security requested the parties to the dispute to participate in an exchange of views. This exchange of views finally took place on 29 December 2006, and ended with the two parties signing a memorandum of non-conciliation. The legislation in force, in particular section 198 of the Labour Code provides that, in the case of total or partial failure, or error in the procedures laid down by section 191, the labour inspector prepares a report on the dispute, specifying in particular the points which are still the subject of disagreement. This report, along with any useful documents and information, is immediately transmitted to the minister responsible for labour, who then establishes an arbitration board. The Inspector General for Labour and Social Security transmitted the memorandum in question, along with a recommendation of recourse to arbitration, to the Ministry of Public Service, Labour and Social Security. Despite another request by the STUB dated 19 January 2007, the Ministry of Public Service, Labour and Social Security has not acted on the recommendations of recourse to arbitration. The Minister, on the basis of section 36 of the Labour Code, which provides that, no party to an agreement can unilaterally impose amendments to the agreement in force and that amendments must be made with the consent of all parties, requested that the matter should be dealt with through collective bargaining in accordance with section 228 of the Labour Code. In this respect, he proposed that an internal technical committee should be set up comprising representatives of the STUB and the employer in order to make specific, realistic and consensual proposals to the Government. However, he made suspension of the strike and resumption of work the prerequisites for negotiation. In a reply dated 23 January 2007, the STUB stated that the salary demands had already been the subject of negotiations within the joint committee that was set up on 18 August 2006 by the Ministry of National Education and Culture, and that the Ministry later rejected the recommendations in the committee’s report, giving rise to the dispute. The STUB states that the Ministry’s proposal to set up an internal technical committee amounted to a delaying tactic in order not to set up the arbitration board, despite this being required by law. In a communication of 25 January 2007, the Ministry repeated its refusal to set up an arbitration council and recommended that the STUB should refer the dispute to the relevant legal bodies for resolution.
9. 542. The Committee observes that, in its reply, the Government refers to section 221 of the Labour Code in specifying the possible legal remedies for ending strike action, namely an arbitration award or a court decision. The Committee notes, however, that section 202 of the Labour Code states that a case may be referred to the labour court by one of the parties to the dispute only after conciliation has failed at the level of the minister responsible for labour, and only after a memorandum of non-conciliation in relation to the ruling issued by the arbitration board has been signed (Labour Code, sections 198 to 201). The Committee therefore expresses deep concern at the Government’s recommendation to the STUB that it should refer the matter to the courts even though the arbitration procedure established in the Labour Code has not yet been exhausted, given that the recommendations made by the Inspector General for Labour have not been acted on. Consequently, the Committee requests the Government to set up an arbitration board without delay as required by section 198 of the Labour Code and to keep it informed of measures taken in this respect.
10. 543. The Committee notes that, according to the information provided by the complainant organization and confirmed by the Government in its reply, salary negotiations within the joint committee (comprising workers’ and employers’ representatives) began in August 2006 on the Government’s initiative. This committee produced a report including recommendations resulting from the negotiations between the parties. The Committee can only regret that the Government has not acted on the recommendations of this committee, which it set up and whose creation and work may have given rise to expectations among workers and their representatives. The Committee notes that this attitude – which seems to be the cause of the dispute – is not conducive to maintaining a relationship of confidence between the parties or to promoting or developing harmonious industrial relations.
11. 544. The Committee recommends the Government to take all measures necessary to encourage the resumption of the negotiation process between non-teaching staff of the University of Burundi or their representatives and the university administration on salaries and other related matters, and to keep it informed in this respect.