Direct Request (CEACR) - adopted 2005, published 95th ILC session (2006)

The Committee notes that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

The Committee notes Act No. 015/2002 of 16 October 2002 issuing the Labour Code and Act No. 016/2002 respecting the establishment, organization and operation of labour tribunals.

Article 2 of the Convention. The Committee notes that section 1 of the Labour Code excludes from its scope of application magistrates, career officials in the state public services governed by the general conditions of service, and career employees and officials of the state public services governed by specific conditions of service. The Committee recalls that employees of the public service, irrespective of their role, function and type of post, are covered by the Convention and should enjoy the right to form occupational organizations in the same way as other workers, with the exception of members of the armed forces and the police (see General Survey on freedom of association and collective bargaining, 1994, paragraphs 48, 49 and 55). The Committee therefore requests the Government to provide information in its next report on the laws and regulations governing magistrates and career employees and officials of the state public services governed by specific conditions of service so as to ascertain their rights relating to the establishment of organizations. The Committee also requests the Government to provide information on the right of career employees of the state public services governed by the general conditions of service to establish organizations.

Article 3. 1. The Committee notes that section 241 of the Labour Code sets forth the conditions to be fulfilled to be entrusted with the administration and management of a trade union organization. The first subsection lays down the obligation to be at least 21 years of age and to be a national of Congo; paragraph (a) of the second subsection excludes persons who, within the past three years, have been convicted to a sentence of penal servitude of three months, with the exception of press offences of a trade union nature; and paragraph (e) of the second subsection excludes persons who have been convicted for a common law violation to a sentence of penal servitude equal to or in excess of three years, and who have not been rehabilitated.

With regard to the first subsection of section 241, the Committee recalls that restrictions concerning nationality should not be unduly strict and that the legislation should allow foreign workers to take up trade union office, at least after a reasonable period of residence in the host country (see General Survey, op. cit., paragraph 118).

With regard to paragraph (a) of the second subsection of section 241, the Committee notes that the restriction on eligibility to trade union office does not apply to persons who have committed press offences of a trade union nature. However, the Committee observes that the wording of paragraph (a) could have the effect of preventing persons who have been convicted for other offences or crimes relating to their trade union activities, particularly respecting the right to strike from standing for office. The Committee also notes that the exclusion set out in paragraph (e) of the second subsection of section 241 does not establish any precise period following which persons convicted to a sentence of penal servitude equivalent to or in excess of three years for a common law crime could stand for office as members of the administration or management of a trade union. The Committee recalls that only convictions for acts the nature of which is such as to call into question the integrity of the person concerned and which constitute a verifiable risk for the exercise of trade union functions may provide grounds for disqualification from holding office in the management or representation of a trade union (see General Survey, op. cit., paragraph 120).

The Committee therefore requests the Government: (1) to amend section 241(1) of the Labour Code to make the conditions more flexible regarding the nationality of persons holding administrative or managerial office in trade unions, particularly by providing instead for the completion of a period of residence as an eligibility condition; and (2) to amend paragraph (a) of the second subsection of section 241 of the Labour Code so as not to prevent persons who have been convicted for an offence or crime relating to their trade union activities from standing for office; and finally (3) to amend paragraph (e) of the second subsection of section 241 of the Labour Code to allow persons convicted to a sentence of penal servitude equivalent to or in excess of three years for a common law offence to stand for office, after a certain period, as a member of the administration or management of a trade union.

2. In addition to article 42 of the transitional Constitution, which recognizes the right to strike, the Committee notes that section 315 of the Labour Code establishes a right to the collective stoppage of work in cases of collective labour disputes. The Committee also notes that section 315(4) provides that the procedures for the exercise of the right to strike and lockout are those established by order of the minister responsible for labour and social insurance. Finally, the Committee notes that section 326 of the Labour Code provides that a fine and/or a sentence of penal servitude of a maximum of six months may be imposed on an individual who is in breach of section 315.

The Committee recalls that organizations should be able to use strike action to support their position in relation to the Government’s major social and economic policies, particularly where they have a direct impact on their members (see General Survey, op. cit., paragraphs 165 and 166). The Committee also recalls that the application of disproportionate penal sanctions does not favour the development of harmonious and stable industrial relations and that, if measures of imprisonment are imposed, they should be justified by the seriousness of the offences committed and a right of appeal should exist in this respect (see General Survey, op. cit., paragraphs 176-178). The Committee therefore requests the Government to provide detailed information on the possibilities enjoyed in practice by organizations to exercise their right to strike when manifesting their position in relation to the major social and economic trends of government policies. It also requests the Government to indicate whether a ministerial order has been adopted respecting arrangements for the exercise of the right to strike and, if so, to provide a copy. The Committee further requests the Government to amend section 326 of the Labour Code so that excessive penalties may no longer be imposed.

3. The Committee notes that sections 304 of the Labour Code and 27 of Act No. 016/2002 provide that, when the conciliation and mediation procedures have been exhausted, recourse is possible to the labour tribunal. The Committee also notes that section 28(1) of Act No. 016/2002 provides that the tribunal may, once the strike notice period has expired, be seized by one of the parties to rule on the collective labour dispute between them. The Committee notes that section 28(3) of the same Act provides that such referral to the tribunal shall have the effect of suspending the strike or lockout. Finally, the Committee notes that Act No. 016/2002 does not contain a precise provision specifying the effect of the rulings of the labour tribunal.

In this respect, the Committee recalls that, in cases in which arbitration is envisaged by the law so as to resolve a labour dispute, the arbitration must be voluntary and not prevent recourse to strike action, with the exception of certain specific circumstances, such as the provision of essential services. The Committee also recalls that arbitration which can be imposed at the request of one of the parties and the effect of which is binding is equivalent to compulsory arbitration and is not in conformity with the principle of freedom of association (see General Survey, op. cit., paragraphs 256 and 257). The Committee therefore requests the Government to provide information on the procedure for referring a case to the labour tribunals in the context of a collective labour dispute and on the effect of the resulting ruling. If the effect of the ruling is binding, the Committee requests the Government to amend Act No. 016/2002 so as to take into account the above comments and refrain from allowing the imposition of compulsory arbitration.

Article 4. The Committee notes that section 251 of the Labour Code provides that trade union organizations may be dissolved by right where two-thirds of the members gathered in general assembly vote in favour of dissolution. The Committee considers that such rules should normally be a matter to be resolved by the statutes and rules of trade union organizations and not by the law. It therefore requests the Government to indicate the measures taken in this respect to amend section 251 of the Labour Code.