Direct Request (CEACR) - adopted 2006, published 96th ILC session (2007)

Article 3 of the Convention. 1. In its previous comments, the Committee requested the Government to provide 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 requested the Government to indicate whether a ministerial order had been adopted respecting arrangements for the exercise of the right to strike and, if so, to provide a copy. The Committee notes the Government’s indication that Order No. 12/CVAB.MIN/TPS/113/2005 of 26 October 2005 establishes the rights and obligations of the parties during the suspension of the employment contract and in the event of a strike. The Committee notes that a copy of this text has not been received and requests the Government to provide the Office with a copy.

The Committee also requested the Government to amend section 326 of the Labour Code, which 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 the conditions established for the exercise of the right to strike. The Committee notes that, according to the Government, sanctions are envisaged for indicative and deterrent purposes and that excessive sanctions have never been imposed. The Committee is, however, bound to recall that: (1) penal sanctions should only be imposed as regards strikes where there are violations of strike prohibitions which are themselves in conformity with the principles of freedom of association; (2) all penalties in respect of illegitimate actions linked to strikes should be proportionate to the offence or fault committed; and (3) the authorities should not have recourse to measures of imprisonment for the mere fact of organizing or participating in a peaceful strike. The Committee requests the Government to amend section 326 of the Labour Code as indicated above.

2. In its previous comments, the Committee noted that: (1) 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; (2) under section 28(1) of Act No. 016/2002, 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; (3) section 28(3) of the same Act provides that such referral to the tribunal shall have the effect of suspending the strike or lockout; and (4) 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 it requested 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. It also recalled that, in cases in which arbitration is envisaged by the law 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 of 1994 on freedom of association and collective bargaining, paragraphs 256 and 257). The Committee notes that the Government provides information in its report on conciliation and mediation procedures, but does not supply new information on the effect of an arbitration ruling. Accordingly, if it is confirmed that such a ruling is binding, the Committee requests the Government to amend Act No. 016/2002 so that compulsory arbitration is not permitted where it is a result of the will of only one of the parties.

3. In its previous comments, the Committee noted that section 241 of the Labour Code sets forth the conditions to be fulfilled by a person to be entrusted with the administration and management of a trade union organization and noted that certain conditions were not in conformity with the Convention. The Committee accordingly 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; (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 of an offence or crime relating to their trade union activities from standing for office; and (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.

The Committee notes the Bill to amend certain provisions of the Labour Code, including section 241. However, it notes that the Bill does not take into account all of the comments made by the Committee. The Bill provides that persons responsible for the administration and management of a trade union must be in possession of Congolese nationality or be of foreign nationality on condition that they have been resident in the Democratic Republic of the Congo for at least 20 years. Recalling that the national legislation should allow foreign workers to hold trade union office, at least after a reasonable period of residence in the host country, the Committee considers that the requirement of a period of residence of 20 years as a condition for eligibility is excessive and requests the Government to take measures to reduce it significantly. The Committee asks the Government to keep it informed of the adoption of the Bill referred to above.

Article 4. The Committee also noted 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 notes the Government’s indication in its report that this provision merely reinforces section 240(9) of the Labour Code, establishing a threshold below which dissolution is not valid and that this threshold was determined in agreement with the social partners. The Committee notes this information. The Committee nevertheless 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 and it requests the Government to adopt measures to amend section 251 of the Labour Code.