REPRESENTATION (article 24) - SENEGAL - C105, C111 - 1997

Report of the Committee set up to examine the representation made by the Senegal Teachers' Single and Democratic Trade Union (SUDES) under article 24 of the ILO Constitution alleging non-observance by Senegal of the Abolition of Forced Labour Convention, 1957 (No. 105)

Decision

1. Convention No. 105: The Governing Body adopted the report of the tripartite committee. Procedure closed. Convention No. 111: Non-receivable representation.

Complaint Procedure

1. A. Introduction
2. 1. By letter of 28 August 1995, the Senegal Teachers' Single and Democratic Trade Union (SUDES), referring to article 24 of the Constitution of the International Labour Organization, made a representation alleging the non-observance by Senegal of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111) and the Abolition of Forced Labour Convention, 1957 (No. 105).
3. 2. The above-mentioned Conventions were ratified by Senegal on 13 November 1967 (in the case of Convention No. 111) and 28 July 1961 (in the case of Convention No. 105) and are both in force in that country.
4. 3. The provisions of the Constitution of the International Labour Organization concerning representations are as follows:
5. Article 24
6. In the event of any representation being made to the International Labour Office by an industrial association of employers or of workers that any of the Members has failed to secure in any respect the effective observance within its jurisdiction of any Convention to which it is a party, the Governing Body may communicate this representation to the government against which it is made, and may invite that government to make such statement on the subject as it may think fit.
7. Article 25
8. If no statement is received within a reasonable time from the government in question, or if the statement when received is not deemed to be satisfactory by the Governing Body, the latter shall have the right to publish the representation and the statement, if any, made in reply to it.
9. 4. The procedure to be followed with regard to representations is governed by the revised Standing Orders adopted by the Governing Body at its 212th Session in March 1980.
10. 5. In accordance with article 2, paragraph 1, of those Standing Orders, the Director-General brought the representation before the Officers of the Governing Body.
11. 6. At its 265th Session (March 1996), the Governing Body, on the basis of the report submitted by its Officers, declared that the representation was receivable only in respect of the Abolition of Forced Labour Convention, 1957 (No. 105), and set up a Committee to examine it, composed of Mr. Baccar (Government member, Tunisia), Mr. Aka-Anghui (Employer member) and Mr. Mayaki (Worker member). At its 267th Session (November 1996), the Governing Body appointed Mr. Baichoo (Government member, Mauritius) to replace Mr. Baccar.
12. 7. In accordance with article 4, paragraph 1, subparagraphs (a) and (c) of the Standing Orders, the Committee invited the Government to present such information on the representation as it might see fit. The Government presented its observations and comments in a communication dated 23 January 1997.
13. 8. The Committee met first in November 1996, and again on 11 November 1997 for the adoption of its report.
14. B. Examination of the representation
15. I. Allegations made by the SUDES
16. 9. The SUDES alleges failure by the Government of Senegal to observe the Abolition of Forced Labour Convention, 1957 (No. 105), by virtue of its recruitment through a press advertisement of "1,200 education volunteers".
17. 10. As regards the facts, the SUDES alleges that the Government's press advertisement aimed at recruiting "1,200 education volunteers" specifies that it is aimed at young people who have at least the equivalent of the BFEM diploma and have "no short-term employment prospects". The purpose of this recruitment is among other things to "reopen over 500 classes that have been closed because no teacher is available" and "to halt the decline" in the school enrolment rate, but also "to combat unemployment and underemployment among young people". The advertisement explains the Government's strategy in this area by stating that "given the constraints facing the State", the Government is seeking to "launch a movement of young education volunteers" and, for the next four years, "to recruit 1,200 education volunteers for elementary classes each year, especially for children in Senegal's most backward areas". These young people, according to the advertisement, will "find work which makes good use of their intellectual, moral and physical potential", will "learn the profession of teacher", and will "receive a monthly scholarship of 50,000 CFA francs and free housing on the spot in backward areas".
18. 11. The SUDES adds that the Government, which at no time involved teachers' organizations in this undertaking, convened a seminar in Gorée on the policy of the Ministry Delegate for the Promotion of Literacy and Basic Education and that the teachers' unions unanimously boycotted the agenda item on the "recruitment of volunteers". The teachers rejected the Government's action as "accelerating the demise of the quality of education and training, undermining the teaching profession and encouraging the spread of precarious employment in the public sector".
19. 12. The SUDES states further that the Government, while acknowledging the fact that it has not involved the teachers and their unions in its plans for recruiting "volunteers", decided at the meeting of the Council of Ministers of 11 July 1995 to press ahead with the "volunteers" scheme; that the teachers' unions had responded by calling on their activists to refuse to help organize the recruitment drive, so as to oblige the Government to halt its unilateral action; and that the Government ignored this and selected its "volunteers" with a strong party-political bias widely decried by public opinion.
20. 13. As regards observation of the Abolition of Forced Labour Convention, 1957 (No. 105), the SUDES emphasizes that, under the terms of Article 1(b) of the Convention, any Member of the ILO which ratifies the Convention undertakes to suppress and not to make use of any form of forced or compulsory labour "as a method of mobilizing and using labour for purposes of economic development". According to the SUDES, this provision has not been observed by the Government of Senegal which specifies in its "advertisement" for "education volunteers" that it wishes to "mobilize" the potential for commitment of young people who have "no short-term employment prospects" in a "movement" which would contribute to the development of the country. According to the SUDES, the population groups targeted by the recruitment drive (unemployed graduates, young people without employment prospects) clearly show that economic constraints, the need to find work at all costs are the real "motivation" for these "volunteers". For them, there is no possibility of choice. Under such circumstances, using the term "volunteer" is inappropriate, since those recruited are forced by economic constraints to accept the offer.
21. 14. The SUDES states that, during the colonial history of Africa, the colonial administration, under the guise of "recruitment of volunteers", in fact obliged the "natives" to work on so-called development projects and that the Government of Senegal, through its "volunteer" policy which ignores the international Conventions and rides roughshod over labour legislation currently in force in Senegal, is perpetuating forced labour.
22. 15. The SUDES adds that article 23 of the Universal Declaration of Human Rights stipulates that "everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment", and stresses that this universal principle of "free choice" of employment is given scant consideration in the government's compulsory "volunteer" policy. According to the SUDES, the Government of Senegal is reverting, albeit in a different form, to its compulsory volunteer policy, which it applied in the past when it needed to make cuts in the public service. A number of workers who were then described as "volunteering" to leave the public service were thus obliged to accept this disguised form of dismissal.
23. II. Observations and comments by the Government
24. 16. As regards the facts, the Government states that the allegations set out in paragraph 10 above require no comment, since they are referring to extracts from texts published during the period in which the project was being launched by the Government and the project management.
25. 17. As regards the passages quoted in paragraph 11 above, the Government observes that the country is facing severe economic difficulties at a time when it is required to face up to the challenge of providing education for all by the year 2000, in accordance with the commitments accepted at Jomtien. Those commitments of 1990, taken as a whole, confront it and other governments of developing countries with very difficult choices and necessitate alternative solutions other than tried and tested conventional models. Already, at the session of the Estates General on Education and Training (EGEF) in 1981, consensus was reached on a number of points, namely: (1) the many tasks facing education today are immense and cannot be ignored if Senegal is to develop; (2) the State on its own does not have the resources needed to achieve universal education in Senegal; (3) to meet the challenges, national solidarity for schools must be built up by mobilizing parents, teachers, intellectuals and employers (State and private employers).
26. 18. The Government adds that during discussions between the teaching unions and the Government in 1994, there had been unanimous agreement on the need for an alternative solution to the problem of structural staff shortages. A solution to the problem could no longer be deferred, given the demand for education and the recent commitments (by the State, teachers' unions, parents, youth movements, women's associations, religious authorities and development partners) at the Forum on Schooling for Girls presided over by the President of the Republic on 21 and 22 April 1995. A number of questions need to be considered, namely:
27. -- How to translate into practical action the EGEF's call in 1981 for national solidarity for education?
28. -- Parents' associations and local collectives, which build and equip on average between 700 and 800 classes per year, are contributing increasingly to that solidarity in order to support the State's efforts. What should be done to ensure that this effort is not discouraged?
29. -- If teachers agree to work in "multigrade" or "double shift" classes, are they not also expressing their solidarity?
30. -- If the development partners undertake to build and equip at least 3,500 classes by 1998, are they not also contributing to the movement of solidarity which needs to spread?
31. -- Can the State, which has already allocated nearly 30 per cent of its budget to education, do more?
32. -- How can the thousands of young educated people who have completed their studies express that solidarity at a time when young people of the same age from the United States, France, Japan and other countries are braving the hardships of life in our countries to do voluntary work in order to promote development?
33. 19. The Government notes that it was in such a context that the education volunteers project was launched by the Government and that, from Thursday, 15 June 1995 onwards, before making any public announcement, the Government met with representatives of teachers' unions to present the project and provide them with as much information as possible. The discussions that took place on the project were supposed to continue at a seminar organized by the Ministry Delegate for Basic Education and National Languages as part of the preparations for the national consultation process on the Government's sectoral policy due to take place between 10 and 13 August 1995. In the Government's view, it was necessary to initiate discussion on the project and to make any necessary improvements, given that the unions were in agreement on the need for alternative solutions. From the day after the meeting of 15 June 1995 and even before the Gorée seminar of 16 and 17 June 1995 during which they were to study the project document in depth, the unions expressed their opposition to the project without proposing any alternative, thus boycotting the study when they should have been demanding it. It is therefore not the Government which has refused to involve the trade unions in the discussions. They have themselves chosen to "boycott" the discussions on the project which, despite protests from certain quarters, has been strongly supported by the public.
34. 20. The Government states that a pro and contra debate organized by Senegal Radio and Television brought together representatives of teachers' unions, retired teachers, parents, civil institutions and the state authorities. The effect of the debate was rather to mobilize public opinion behind the project and against the trade unions. While the number of candidates taking part in recruitment competitions for future primary school teachers varied between 15,000 and 16,000, here there were 32,595 candidates, all of them young Senegalese eager to participate with other young volunteers from countries such as France, Japan or the United States. All were bursting with impatience to help their country face up to the challenge of education for all by the year 2000. The great majority are baccalaureate holders or university graduates and as such hardly likely to undermine the quality of education and training, as the SUDES claims.
35. 21. As regards the allegations referred to in paragraph 12 above, the Government states that the appeal by the teachers' unions to their activists to refuse to help organize the recruitment drive was not heeded by all teachers, since written examinations took place as planned in 24 of the 31 districts affected by the recruitment drive. As regards the allegation that the Government selected its volunteers on the basis of party-political criteria widely criticised by public opinion, this version of the facts is in fact very far from the truth. In a departure from previous practice, the 1,200 volunteers were not selected by the Ministry. The operation was decentralized and full responsibility was given to the departmental inspectorates of national education. A quota of volunteers for recruitment was set within each inspectorate, depending on the shortage of registered teachers at that level. Starting on 11 July 1995, tests for selecting the 1,200 volunteers were held in the country's 31 school districts. In each school district where the selection was taking place, the school's inspector, acting on instructions from the Minister, set up a jury consisting of teachers, representatives of teachers' unions, representatives of parents' associations (as observers), representatives of the administrative authorities and two observers sent by the education authority inspector and the Ministry to ensure that the operation was free of irregularities. The juries, which were completely autonomous and given full authority, carried out all aspects of the operations and announced the final results. There was thus no party-political bias and the highest standards of rigour and transparency were maintained during the recruitment drive, despite the call for a boycott which failed to disrupt the selection tests. The tests, which started on 11 July 1995, finished on 22 July 1995 throughout the country. Of the 32,595 candidates, 1,200 were selected and from 24 July onwards began their teacher training.
36. 22. The Committee also notes that, in the observations formulated by the Government with regard to the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), it explains that the volunteers are not civil servants but rather, as the SUDES stated on the first page of its report, "young people who wish to learn the profession of teaching". Until recently (1994), primary schoolteachers underwent a four-year training course in teacher training schools. The student teachers in these schools (of which there are four altogether) in theory had the equivalent of the BFEM diploma. They underwent four years of theoretical and practical training, with an academic bias during the first three years. They received a grant of 17,550 francs per month during the first three years and 28,000 francs per month during the fourth year. They thus passed through four years of teacher training. The education volunteers' programme maintained the original four years of training in the teacher training schools, but gave the volunteer student teachers four years of real teaching experience after an initial training period of four months. The Government adds that the 1,200 education volunteers, who are student teachers and not public servants, receive a grant of 50,000 francs per month and free housing in rural schools in order to train for four years as teachers.
37. 23. The Government indicates further that during the initial four months of training (three months of theoretical and practical training, one month working with full responsibility), the volunteer student teachers were given various brochures relating to that initial training. The initial training is reinforced during the four years of voluntary work at three different levels. The student teachers are not only given guidance by the teaching teams in their respective schools but also participate in teaching committees (in a number of schools) which meet every two weeks to discuss teaching issues; at least once a month, the volunteer is given guidance by an inspector who subsequently writes a report; and refresher courses lasting 15 days are organized every year to make good any deficiencies noted in the reports. Those courses can be divided up into two or three seminars during the school year. To complete their training, the volunteers are allowed to take the professional teaching examination, namely (a) the elementary teaching certificate (CEAP, for the intermediate diploma level) and (b) the teaching certificate (CAP, for baccalaureate level). Only after completing the four years of training is the student teacher entitled to seek work as a public servant, and it is indeed envisaged that the best of the 1,200 volunteers will be recruited as public servants. Before those four years have elapsed, the volunteers are neither teaching assistants nor public servants; they are learning the profession of teaching. There can therefore be no confusion between the current status of the volunteer, a student teacher who wishes to become a fully qualified teacher, and that of the public service teacher. There is thus no comparison between the grant paid to the volunteers and the salary paid to qualified teachers. The correct comparison would have been between the 17,500 francs per month paid as a grant to the student teachers in training schools and the 50,000 francs per month paid to the volunteers.
38. 24. As regards observance of the Abolition of Forced Labour Convention, 1957 (No. 105), the Government states that the provisions of the Convention have not been infringed. There is no question of forced labour, still less of compulsory labour. The education volunteers are able to await developments. If they find other employment, they are released at their own request. If, on the other hand, they decide to pursue a career in teaching, they can continue with their training for four years and complete their voluntary work before being recruited by the public sector or local collectives.
39. 25. The Government explains that this mobilization of young people was made possible partly as a result of a tradition in this area. Over about 30 years, a form of voluntary work had developed in the education sector. In all the large towns, young teachers, graduates or ordinary citizens set up education assistance centres for children from disadvantaged or deprived families or children excluded from the school system. Those centres have spread everywhere thanks to this type of solidarity which has helped thousands of children. During the long holidays, the community movement also endeavours to organize vacation courses. In villages where there is a shortage of teachers, parents take the initiative and entrust the education of their children to young graduates. In rural areas, young people from France, Japan, the United States and other countries go out into the bush to help local people to improve their living conditions. There is thus a strong movement of solidarity which needs to be given shape. Similar initiatives have been launched by NGOs which have recruited volunteers to support the State's efforts (Aide et action and the Fondation Paul Gerin La Joie).
40. 26. The Government adds that, when the SUDES writes the following "the population groups targeted by the recruitment drive (...) shows that economic constraints and a need to find work at all costs is the main motivation for these volunteers. For them, there is no possibility of choice; under such circumstances, the term 'volunteer' is inappropriate, since those recruited are forced by economic constraints to accept the work offered", it makes no mention of the country's deeply rooted problems. What young diploma holder in Senegal has become a teacher by vocation? Who has not become a teacher for want of other options? Or because of economic pressures? Young graduates are accustomed to entering any competitions that arise to improve their chances of success, since there are no longer any choices to be made but simply the imperative of finding a job. This has gone so far that university graduates have virtually squeezed out people with lower-level qualifications from the very competitions which were originally intended for them. If economic constraints have forced 32,595 young diploma holders to enter the volunteers selection tests, we should also ask the reasons that have prompted thousands of young people to take part in unpaid cleaning work in towns and villages and opened so many school assistance centres without any significant financial reward. The appeal was addressed to those young people with diplomas who, while looking for a job, agreed to go on doing the same work that they do in the education assistance centres but in rural areas and alongside volunteers of the same age from other countries. Contrary to the allegations made by the SUDES, they understood the meaning of the appeal and all the opportunities which the project affords them to do useful work while training for a career which they can choose to take up at any moment during their voluntary service.
41. III. The Committee's conclusions
42. 27. Definition of forced or compulsory labour. The SUDES alleges non-observance by the Government of Senegal of Article 1(b) of the Abolition of Forced Labour Convention, 1957 (No. 105), which has been ratified by Senegal. Pursuant to that provision, the Government has undertaken not to make use of any form of forced or compulsory labour as a method of mobilizing and using labour for purposes of economic development. The Convention does not define the concept of forced or compulsory labour. According to the established practice of the ILO's supervisory bodies (Endnote 1) the definition of the concept of forced labour contained in Article 2, paragraph 1, of the Forced Labour Convention, 1930 (No. 29) is generally valid and can thus also be used to determine what constitutes "forced or compulsory labour" within the meaning of the 1957 Convention, namely "all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily". It was noted during the examination of the draft 1930 Convention by the International Labour Conference that the penalty in question did not necessarily have to take the form of a penal sanction, but could also take the form of the loss of any rights or privileges. (Endnote 2) As regards the "work or service" referred to in the definition, the supervisory bodies have drawn a distinction between work and vocational training and have conceded that a compulsory vocational training programme, by analogy with compulsory general education, is regarded as an extension to the latter and does not constitute compulsory work or service within the meaning of the forced labour Conventions. Nevertheless, given that vocational training normally involves a certain amount of work experience, the distinction between training and employment is not always easy to make. (Endnote 3)
43. 28. Economic constraints. The concept of forced or compulsory labour implies that the worker has not offered himself voluntarily for the work or service in question. In the case which is the subject of the present representation, the workers concerned responded to a public appeal directed at volunteers with certain qualifications. Of 32,595 candidates who came forward, 1,200 were selected. Without contesting the voluntary nature of the offer of service by the candidates responding to the appeal, the SUDES claims that the candidates were not free: "The population groups targeted by the recruitment drive (unemployed graduates, young people without employment prospects) clearly show that economic constraints, the need to find work at all costs are the real 'motivation' for these 'volunteers'. For them there is no possibility of choice. Under such circumstances, using the term 'volunteer' is inappropriate, since those recruited are forced by economic constraints to accept the offer." (Endnote 4) The Committee notes that the concept of economic constraint was at the heart of the conclusions drawn by ILO bodies concerning previous representations alleging non-observance of the Forced Labour Convention, 1930 (No. 29). It thus appears appropriate to identify the criteria on which those conclusions were based.
44. 29. Precedents. The Committee set up by the Governing Body to examine the representation presented in 1983 by the National Trade Union Co-ordinating Council of Chile (CNS) under article 24 of the Constitution alleging non-observance by Chile of Conventions Nos. 1, 2, 29, 30 and 122, examined the bearing of official employment programmes, namely, the "Minimum Employment Programme" (PEM) and the "Employment Programme for Heads of Household" (POJH), on the observance of the Forced Labour Convention, 1930 (No. 29). The Committee concluded that persons enrolled in these programmes "cannot be considered to enjoy freely chosen employment". In particular, the Committee took the view that "work carried out by many persons, paid for with excessively low wages and not offering the protection of the labour and social security legislation, can give rise to doubts concerning its voluntary nature, particularly when it involves not a temporary or emergency solution but a situation that tends to last. Even taking into account the information given by the Government on persons enrolled in the PEM who could not be considered as a part of the labour force, it appears reasonable to think that persons who are employed and capable of working and who enrol in the Minimum Employment Programme or the Employment Programme for Heads of Household are driven to this by the lack of any better alternative, in order to obtain some income, however modest. Besides, they can improve their possibilities of obtaining stable employment because, in order to benefit from the subsidy provided in Act No. 18.206, 1983, employers are obliged to engage those who were receiving unemployment benefits or were enrolled in one of the programmes for the absorption of unemployment. Furthermore, to the extent that the persons undertake productive activities or normal activities of the public services, this situation of constraint leads to a disproportion between the wages paid and the value of the work carried out for the Government. (Endnote 5) The same conclusions were drawn by a committee appointed by the Governing Body to examine a second representation made by the CNS in 1985. (Endnote 6)
45. 30. Criteria regarding constraint by the Government. If the case submitted to the Committee for examination has certain similarities with those mentioned above (absence of better alternatives for the candidates, the hope of finding stable employment), there are a number of important differences that were taken into account by previous Committees, in particular the level of remuneration and benefits and the number of persons affected. In a case where an objective situation of economic constraint exists but has not been created by the Government, then only if the Government exploits that situation by offering an excessively low level of remuneration could it to some extent become answerable for a situation that it did not create. Moreover, it might be held responsible for organizing or exacerbating economic constraints if the number of people hired by the Government at excessively low rates of pay and the quantity of work done by such employees had a knock-on effect on the situation of other people, causing them to lose their normal jobs and face identical economic constraints.
46. 31. This has not happened in the present case. Rather than "a large number of persons paid at excessively low rates", 1,200 people were selected from more than 30,000 candidates for the period beginning 1995, and their remuneration, according to the Government, (Endnote 7) is above that of student teachers in teacher training schools having broadly similar functions. The accusation of party political bias made by the SUDES with regard to the selection of candidates and refuted by the Government (Endnote 8) also tends to contradict the allegation concerning forced or compulsory labour. In short, the Committee considers that economic constraints may in practice be such as to be conducive to forced labour. However, in the present case the Government could not be held responsible for having created or exacerbated economic constraints, nor for having exploited them by offering people who had no other options, employment on terms that would not normally be acceptable.
47. 32. Conclusion. In the light of the above, the Committee concludes that the representation alleging non-observance by Senegal of the Abolition of Forced Labour Convention, 1957 (No. 105) is unfounded.
48. C. Recommendations of the Committee
49. 33. The Committee recommends that the Governing Body:
50. (a) approve the present report and, in particular, the conclusion given in paragraph 32;
51. (b) declare closed the present procedure before the Governing Body resulting from the representation made by the Senegal Teachers' Single and Democratic Trade Union (SUDES) under article 24 of the Constitution of the ILO alleging non-observance by Senegal of the Abolition of Forced Labour Convention, 1957 (No. 105).
52. Endnote 1
53. See in particular the reports of the Committee of Experts on the Application of Conventions and Recommendations; General Surveys on the reports concerning the Forced Labour Convention, 1930 (No. 29) and the Abolition of Forced Labour Convention, 1957 (No. 105); International Labour Conference, 65th Session, 1979, Report III (Part 4B), para. 39 and following; and 52nd Session, 1968, Report III (Part 4), p. 192, para. 42 and following.
54. Endnote 2
55. International Labour Conference, 14th Session, Geneva, 1930: Record of Proceedings, third part (Geneva, ILO, 1930), p. 691.
56. Endnote 3
57. See in particular para. 20 in the General Survey of 1979, already cited in footnote No. 1.
58. Endnote 4
59. cf. para. 13 above.
60. Endnote 5
61. See in particular paras. 60 and 62 in the Committee's report (Official Bulletin, special supplement 2/1985, Vol. LXVIII, 1985, Series B), report of the Committee set up to examine the representation presented by the National Trade Union Co-ordinating Council (CNS) of Chile under article 24 of the Constitution alleging non-observance of international labour Conventions Nos. 1, 2, 29, 30 and 122 by Chile.
62. Endnote 6
63. Para. 86 of the report of the Committee set up to examine the representation presented by the National Trade Union Co-ordinating Council (CNS) of Chile under article 24 of the Constitution alleging non-observance of international labour Conventions Nos. 1, 2, 24, 29, 30, 35, 37, 38 and 111 (document GB.234/23/28, Nov. 1986).
64. Endnote 7
65. Paras. 22 et 23 above.
66. Endnote 8
67. Paras. 12 and 21 above.