REPRESENTATION (article 24) - CONGO - C095 - 1996

Report of the Committee set up to examine the representation made by the International Organization of Energy and Mines (OIEM) under article 24 of the ILO Constitution alleging non-observance by Congo of the Protection of Wages Convention, 1949 (No. 95)

Decision

1. The Governing Body adopted the report of the tripartite committee. Procedure closed.

Complaint Procedure

1. A. Introduction
2. 1. In a communication dated 5 September 1994, the International Organization of Energy and Mines (OIEM) made a representation alleging non-observance by the Government of Congo of the Protection of Wages Convention, 1949 (No. 95). (Endnote 1) Congo ratified this Convention on 10 November 1960.
3. 2. The provisions of the Constitution of the International Labour Organization concerning the submission of representations are as follows:
4. Article 24
5. 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.
6. Article 25
7. 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.
8. 3. The procedure to be followed in the case of representations is governed by the revised Standing Orders adopted by the Governing Body at its 212th Session in March 1980.
9. 4. In accordance with article 2, paragraph 1, of the Standing Orders, the Director-General brought the representations before the Officers of the Governing Body.
10. 5. At its 261st Session, the Governing Body, on the basis of the report presented by its Officers, decided that the representation was receivable and set up a committee to examine it, composed of Ms. Lucille Caron (Government member, Canada, Chairperson), Mr. Jean-Jacques Oeschlin (Employer member, France) and Mr. Ibrahim Mayaki (Worker member, Niger). In accordance with article 4, paragraph 1(a) and (c), of the Standing Orders, the Committee invited the Government to make such statement on the subject of the representation as it might think fit, before 28 February 1995. The Government sent its statement in a letter dated 19 October 1995.
11. 6. At its 264th Session (November 1995), the Governing Body appointed Mr. Kadhem Baccar (Government member, Tunisia) to replace Ms. L. Caron. The Committee met in Geneva on 22 March 1996 in order to examine the representation and the statements received.
12. B. Examination of the representation
13. 1. Allegations made by the International Organization of Energy and Mines (OIEM)
14. 7. The International Organization of Energy and Mines (OIEM) alleges that the Government of Congo has failed to ensure the application of the Protection of Wages Convention, 1949 (No. 95), in the context of a dispute between the Mining Company of Ogooué (COMILOG) and its 955 employees dismissed when the company ceased all its operations on Congolese territory on 23 October 1992 without paying wages and the various bonuses due. In support of its representation it sent a file compiled by the Federation of Workers in Mines, Petroleum and Related Industries (FETRAMIP), a Congolese affiliate of the OIEM.
15. 8. According to the representation, the facts are as follows: COMILOG is a company under Gabonese law which transported ore with its own rolling stock and workforce, using part of the rail network belonging to the Chemin de Fer Congo-Océan (CFCO) on the territory of the Republic of Congo. Since 1990 the enterprise management and the trade union, an affiliate of FETRAMIP had been negotiating a cost-of-living adjustment, the payment of an extraordinary bonus and the payment of wages for strike days. This was the tense social climate in which the accident in MVoungouti (Congo) occurred. On 5 September 1991 a train loaded with ore and drawn by a COMILOG engine collided with a CFCO passenger train, causing several fatalities. On the instruction of the Ministry of Transport of Gabon, COMILOG suspended its ore transport activities on the Congolese railways on 24 September 1991 and ceased them definitively on 26 October 1992. (Endnote 2) On 23 September 1992 each COMILOG employee in Congo received a letter of dismissal stating that "since the financial situation of COMILOG does not allow it to pay forthwith the compensation due all its staff, payments will have to be spread over time". The payments were to be made over five years and an interest of 8 per cent a year was to be paid.
16. 9. According to the allegations presented, the termination payments, including severance pay under the collective agreement and the part of the wages due for the period during which workers were laid off, have not been paid. FETRAMIP also states that the back pay resulting from cost-of-living increases from October 1990 to October 1992, wages for 14 strike days in October 1990 owed to some of the workers, the 1992 extraordinary bonus already paid to Gabonese personnel on 15 February 1991 and the payment of damages for wrongful and vexatious dismissal and for failure to issue work certificates have not been paid. According to COMILOG, in 1993 the sums owed amounted to 2,500 million CFA francs.
17. 10. The Government of Congo has approached the Government of Gabon, COMILOG's main shareholder, with a view to reaching a solution which would guarantee workers' rights, inter alia, and preserve relations between the two countries. This has not yielded any result until now, as COMILOG is subordinating the settlement of workers' claims to a transaction involving its property in Congo, as is clear from a letter from the company to the Ministry of Foreign Affairs of Congo dated 24 May 1993. According to COMILOG, the CFCO, which is using COMILOG equipment, should be considered as subrogating the latter with regard to settlement of the compensation due to its former workers, up to the value of the equipment used. It follows from the documents communicated by the organization making the representation that this proposal by COMILOG is unacceptable, since it amounts to transferring the enterprise's debts to a third party. The dispute, which concerns non-payment of wages and compensation to COMILOG workers, should be settled under the terms of the labour legislation in force through the discharge of the obligations arising out of the contracts of employment between COMILOG and its former workers and the collective agreements in force between the parties.
18. 11. It follows from the documents attached to the OIEM's representation that FETRAMIP reproaches the labour administration with not having brought representatives of the COMILOG management before the competent judicial authorities for having infringed labour legislation, pursuant to section 154 of the Labour Code. In a letter dated 1 February 1992, FETRAMIP requested the mediator of the Supreme Council of the Republic, under article 77 of the Basic Law, (Endnote 3) to refer the case to the courts in order to settle the dispute between COMILOG and its employees. No information has been communicated concerning a response to this request.
19. 12. It also follows from the documents communicated by the OIEM that the Government of Congo has preferred to seek a solution to the dispute by means of bilateral discussions with the Government of Gabon rather than through the remedies and means of enforcement for which provision is made in such cases by the legislation of Congo. (Endnote 4)
20. 2. Observations made by the Government of Congo
21. 13. The Government of Congo presented its observations on the representation in a letter received by the Office on 27 October 1995. It states that as soon as COMILOG ceased its activities on Congolese territory it repeatedly approached the Government of Gabon, COMILOG's main shareholder, through political and diplomatic channels, with a view to agreeing on a solution which would guarantee workers' rights, in particular, and preserve good relations between the two countries. At the same time, the Ministry of Labour, in its capacity as arbitrator and conciliator, repeatedly invited the management of the enterprise to pay the amounts due in respect of the dismissal of COMILOG's employees in Congo and to meet with the trade union in order to achieve a concerted settlement of the dispute. The Government states that none of these attempts has yielded any results because of the intransigence of COMILOG, which is subordinating the payment of the amounts due in respect of the dismissals to a transaction involving its property in Congo.
22. 14. The Government states that pending the outcome of this case it has provided financial support to COMILOG's former employees and their families.
23. 15. The Government considers that COMILOG's decision to cease its activities in Congo and to refrain from paying the amounts due in respect of the dismissal of its workers is abusive for the following reasons:
24. -- the agreements between COMILOG and the States of Congo and Gabon prohibit any interference by the national authorities in the management of the enterprise. COMILOG has failed to observe these agreements, by using an order of the Gabonese Minister of Transport as justification of its decision to suspend, then cease, its activity in Congo;
25. -- relations between COMILOG and its employees are governed by Congolese legislation, the collective agreements in force and contracts of employment. COMILOG has failed to comply with its legal obligations by refusing to pay the sums to which the workers are entitled as a result of their dismissal upon termination of the contracts. It is the responsibility of COMILOG to discharge its obligations towards its former employees. As the enterprise is neither bankrupt nor in judicial liquidation, it cannot subordinate the payment of the amounts due to workers to another procedure;
26. -- the reason beyond its control invoked by COMILOG in order to avoid its obligations is only a pretext, as the enterprise had expressed its intention of ceasing its activities in Congo, in particular after the completion of the trans-Gabon railway, a national railway on Gabonese territory.
27. 16. In its communication dated 19 October 1995, the Government states that it cannot be held responsible for this situation and cannot be subrogated to the dismissed workers' rights. The Ministry of Labour's role of arbitration and conciliation was made impossible by the failure of its approaches through diplomatic channels and COMILOG's refusal to comply with any of the Ministry's summons or requests. Moreover, attempts to approach the Government of Gabon have not met with success. The Government states that "faced with the intransigence of the management of COMILOG, and in particular with its obstinate insistence on linking the payment of workers' entitlements to the dispute between the enterprise and the State of Congo and the Agence Transcongolaise de Communication", it had "finally invited the representatives of the workers to bring the case before the courts in order to obtain compensation" and to assist them in doing so, a senior state official having been entrusted with following up on the case. The Government adds that only by bringing the case before the competent jurisdiction can the former employees recover their rights and obtain compensation for the damage they have suffered.
28. 17. The Government concludes by stating that it considers that it has not infringed the spirit and the letter of Convention No. 95.
29. C. The Committee's conclusions
30. 18. The Committee recalls that its competence is limited to the application in law and in practice of Convention No. 95 by the Government of Congo. Consequently, the only matters within its competence, considering the terms of Convention No. 95, are those concerning the payment of sums due to COMILOG's former employees upon the termination of their contract of employment on 24 October 1992. The complainant organization and the Government agree on the fact that the wages and compensation due have not been paid, as COMILOG had not made any of the staggered payments it had proposed in its letter of 23 October 1992 to the dismissed workers.
31. 19. It follows from the information before the Committee that the amounts due to the dismissed workers consist, on the one hand, of wage supplements that should have been paid during the period running from 24 September 1991 to 24 October 1992 and, on the other, of compensation and bonuses that should have been paid upon the dismissal of the workers. COMILOG had initially requested a meeting of the disputes boards of Kouilou and Niari in letters dated 26 September 1991 for an authorization of lay-offs initially requested for a three-month period. According to the Government, these lay-offs were authorized by the competent disputes boards at meetings held on 10, 11, 12 and 14 October 1991. (Endnote 5) COMILOG then sent a declaration to the effect that it was closing down its operations, in accordance with section 181 of the Labour Code, to the regional labour directorates of Kouilou and Niari in letters dated 26 October 1992. The Committee could note (i) that the amounts due to the dismissed workers have not been paid; (ii) that the situation referred to in the representation concerns the application of the provisions of Articles 8, paragraph 1, and 12, paragraph 1, of Convention No. 95. These provisions, which concern regular payment of wages without unauthorized deductions, are as follows:
32. Article 8, paragraph 1
33. 1. Deductions from wages shall be permitted only under conditions and to the extent prescribed by national laws or regulations or fixed by collective agreement or arbitration award.
34. Article 12, paragraph 1
35. 1. Wages shall be paid regularly. Except where other appropriate arrangements exist which ensure the payment of wages at regular intervals, the intervals for the payment of wages shall be prescribed by national laws or regulations or fixed by collective agreement or arbitration award.
36. 20. The Committee notes that sections 88, 6th paragraph, 96 and 102, 2nd paragraph, of the Labour Code, (Endnote 6) which have not been the subject of observations by the supervisory bodies of the ILO, give effect to the provisions of the Convention in law. The Committee could recall that pursuant to article 19, paragraph 5(d), of the Constitution of the ILO, a Member that has ratified a Convention "will take such action as may be necessary to make effective the provisions of such Convention". The fact that the legislation is in conformity with the requirements of the Convention does not suffice in itself to ensure that the Convention is satisfactorily applied, unless the legislation is effectively and strictly enforced.
37. 21. In the view of the Committee, there are two aspects to the effective application of the Convention through the provisions of national legislation giving effect to it: measures to prevent and punish infringements and measures to compensate any damage suffered by the workers.
38. 22. The Committee points out that the measures to prevent and punish infringements have not been carried out. It is clear from the report of the interministerial commission set up to examine the COMILOG case after it ceased its activities in Congo, which met under the aegis of the national Ministry of Transport, that "the State of Congo had the legal means to compel COMILOG to comply with the legislation in force and to ensure that the workers' legitimate expectations were met. But by preferring to handle this case through political and diplomatic channels, the State involuntarily encouraged the cavalier attitude of the enterprise and from the outset limited the likelihood of achieving a solution which would be favourable to the workers". The Committee recalls that it is for the competent authorities to take the necessary measures when legislation is not applied and public order may be jeopardized as a result. The Committee also points out the late date at which the workers' representatives were invited to bring the case before the courts.
39. 23. As regards measures to compensate the damage suffered by the former employees of COMILOG, the Committee notes that it is clear from the evidence communicated to it that no concrete measure has been adopted to this end, as COMILOG maintains that, in view of the fact that its equipment is being used by the CFCO, the latter has subrogated it with regard to the payment of compensation up to the amount equivalent to the value indicated. The Committee notes that none of the evidence it has examined leads to the conclusion that the CFCO has substituted itself for COMILOG with respect to the payment of the wages and compensation due.
40. 24. In the light of the foregoing considerations, the Committee, while noting the measures adopted by the Government and, in particular, the financial assistance provided to the former workers and their families pending the outcome of the case, concludes that the Government has not ensured the effective application of the relevant provisions of the Convention. It notes with interest the Government's willingness to assist the workers in bringing the case before the courts, by appointing a senior official to follow up the case, so that they may recover their rights and obtain compensation for the damage they have suffered.
41. 25. In the light of the foregoing conclusions, the Committee recommends that the Governing Body:
42. 1. approve the present report and in particular:
43. (a) that the Government take appropriate measures to ensure the effective application of the provisions of national legislation which give effect to Articles 8, paragraph 1, and 12, paragraph 1, of the Convention and, in particular:
44. (i) that measures be adopted to enable former employees of COMILOG to recover promptly all sums due to them either by way of wage supplements for the period running from 24 September 1991 to 24 October 1992, including the compensation and bonuses due under the terms of legislation and collective agreements in force at the time of their dismissal, or by way of dismissal compensation and severance pay;
45. (ii) that adequate penalties be prescribed in accordance with Article 15(c) of the Convention;
46. (b) that the Government provide, in the reports it is to submit under article 22 of the Constitution of ILO, detailed information on the measures adopted to solve the problem of the payment of amounts due to the former employees of COMILOG and on the results obtained through the application of these measures. The reports should include, in particular, information regarding the number of workers affected, the amounts remaining to be paid and the administrative or judicial decisions concerning the application of the provisions giving effect to Articles 8, paragraph 1, and 12, paragraph 1, of the Convention;
47. (c) that the Committee of Experts on the Application of Conventions and Recommendations continue the examination of this case on the basis of the information so provided;
48. 2. declare closed the procedure initiated before the Governing Body as a result of the representation made by the International Organization of Energy and Mines concerning the application by Congo of the Protection of Wages Convention, 1949 (No. 95).
49. 26. It appeared to the Committee, in the light of its examination of this case, that the payment of the wages and compensation due to the former employees of COMILOG could in practice be facilitated by a change of attitude in the various parties to this dispute, the origin and many aspects of which are the product of decisions taken outside the jurisdiction of the Government of Congo. The Committee suggests that, in respect of the situation described in paragraphs 7-17 of this report, the Governing Body request the Director-General to propose his good offices in whatever capacity to the countries concerned, in order to consider how an equitable settlement might be arrived at.
50. Endnote 1
51. In the same letter, the OIEM made a representation alleging non-observance by the Government of Gabon of Convention No. 95. The Governing Body decided that this representation was not receivable on the grounds that the facts referred to concern activities that have not occurred within the jurisdiction of Gabon (GB.261/14/10).
52. Endnote 2
53. This solution was made possible by the fact that the trans-Gabon railway was definitively brought into service.
54. Endnote 3
55. "During the transition period, any legal entity or individual believing that in a matter concerning him, her or it, a public body has not acted in accordance with the public service mission entrusted to it may, by individual application, bring the case before the Supreme Council of the Republic."
56. Endnote 4
57. Report of the Interministerial Commission set up to examine the COMILOG case after it ceased its activities in Congo, p. 36.
58. Endnote 5
59. The minutes of these meetings have not been published and are not available.
60. Endnote 6
61. These provisions are as follows:
62. Section 88, paragraph 6. In the event of the termination of the contract, wages and benefits shall be paid from the termination of service.
63. Section 96. A worker housed by the employer before liquidation or bankruptcy shall continue to be housed until the date of payment of the final debt owed to him.
64. Section 102, paragraph 2. Any sums withheld from the worker in violation of the above provisions shall bear interest payable to him at the statutory rate from the date on which they should have been paid.