Observation (CEACR) - adopted 2019, published 109th ILC session (2021)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Democratic Republic of the Congo (Ratification: 2001)

Other comments on C087

Observation

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Articles 2 and 5 of the Convention. Right to organize in the public service. In its previous comments, the Committee noted that: (i) under the terms of section 94 of Act No. 16/013 of 15 July 2016 on the conditions of service of permanent public service employees, freedom of association is guaranteed for public service employees; and (ii) under section 93 of the Act, the exercise of the right to strike by public service employees can only be restricted under the conditions established by the law, in particular, so as to ensure the normal provision of “public services of vital interest, which cannot suffer any type of interruption.” A Decree of the Prime Minister establishes the list of services of vital interest, as well as the details of the minimum service in these services. The Committee notes the Government’s indications that a copy of the Decree will be communicated following its publication in the Official Journal. In this regard, the Committee recalls that the right to strike may be restricted or prohibited: (i) in the public service only for public servants exercising authority in the name of the State; or (ii) in essential services in the strict sense of the term; or (iii) in the case of an acute national or local crisis. The Committee trusts that the Decree in question will be adopted shortly, taking into account the Committee’s observations, and requests the Government to provide a copy of the Decree with its next report.

With regard to the trade union rights of judges, the Committee previously noted that, according to the Government, the freedom of association of judges is recognized under the provisional Order of 1996 and that judges’ trade unions exist. The Committee had noted that Organic Act No. 06/020 of 10 October 2006 on the conditions of service of judges, to which the Government refers in its report, did not contain any provisions that address the concerns of the Committee and therefore requested the Government to indicate whether provisions were envisaged to explicitly ensure that judges enjoy the rights laid down in the Convention. The Committee notes the Government’s indications that the provisional Order of 1996 remains in force pending the amendment of the Act of 2006, which was being discussed in Parliament. The Committee trusts that the revision process of the Act of 2006 will be concluded as soon as possible and will ensure freedom of association of judges. It requests the Government to provide, with its next report, a copy of the revised Act.

Article 3. Right of foreign workers to hold trade union office. In its previous comments the Committee noted with regret that Act No. 16/010 of 15 July 2016 amending and supplementing Act No. 015-2002 on the Labour Code did not remove the provision requiring 20 years of residence in order to be eligible for appointment to administrative or executive positions in trade unions (new section 241). The Committee recalled that a period of three years is reasonable in this respect but that a 20-year period for access to trade union office is excessive (see the 2012 General Survey on the fundamental Conventions, paragraph 103). The Committee notes the Government’s indication that it has undertaken to bring this matter before the National Labour Council. Recalling once again that national legislation should allow foreign workers to take up trade union office, at least after a reasonable period of residence in the host country, the Committee expects the Government to take measures, in the near future, to amend section 241 of the Labour Code, as revised by the Act of July 2016, accordingly.

Articles 3 and 4. Other legislative and regulatory issues. In its previous comments, the Committee requested the Government, on numerous occasions, to take steps to amend: (i) section 11 of Order No. 12/CVAB.MIN/TPS/113/2005 of 26 October 2005, which prohibits striking workers from entering and remaining on work premises affected by the strike; (ii) section 326 of the Labour Code and in that regard suggested including an additional provision stipulating that penalties against strikers must be proportionate to the offence committed and that no prison sentence shall be imposed unless criminal or violent acts have been committed; (iii) section 28 of Act No. 016/2002 concerning the establishment, organization and functioning of labour tribunals so as to allow recourse to the labour tribunal, should conciliation and mediation procedures have been exhausted, only on the basis of a voluntary decision of the parties to the dispute; and (iv) section 251 of the Labour Code to ensure that the issue of the dissolution of trade union organizations will be regulated by their union constitutions and rules.

The Committee notes with concern that, despite the adoption of Act No. 16/010 of 15 July 2016 (amending and supplementing the Labour Code) and of Act No. 016/2002 (concerning the establishment, organization and functioning of labour tribunals), the above provisions are still not in conformity with the requirements of the Convention, and that the Government only indicates that the above matters will be brought before the National Labour Council. The Committee expects that the Government will take all necessary measures to amend the above provisions and that it will refer to specific progress made in its next report.