Report in which the committee requests to be kept informed of development - Report No 343, November 2006

248. The complaint is contained in a communication from the Union of Magistrates of Burundi (SYMABU) dated 13 May 2005.

1. 249. In the absence of any reply from the Government, the Committee has been obliged to defer examination of this case on three occasions. At its meeting in May-June 2006, the Committee made an urgent appeal to the Government, drawing its attention to the fact that in accordance with the procedural rule set out in paragraph 17 of its 127th Report, approved by the Governing Body, it might submit a report on the substance of the matter at its next meeting if the information and observations requested from the Government had not been received in due time [see 342nd Report, para. 10].
2. 250. Burundi has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). It has not ratified the Labour Relations (Public Service) Convention, 1978 (No. 151).

A. The complainant’s allegations

1. 251. In its communication of 13 May 2005, the complainant organization alleges that the Government refuses to implement a bipartite agreement signed on 29 September 2003, under the terms of which both parties agreed to set up a joint technical commission chaired by a neutral individual chosen by consensus, with the task of reviewing the position of the judiciary in relation to other authorities (in terms of independence, separation of powers and equality) and the practical application of the magistrates’ statute (with regard to salaries, special payments and allowances) which had at that time been in force for five years.
2. 252. The joint commission completed its work on the implementation of the magistrates’ statute and submitted its report to the President of the Republic on 10 August 2004. The report sets out a number of specific and detailed claims regarding implementation of the statute, and makes a number of recommendations on matters including: salary scales; allowances (risk, accommodation, transport, representation); special payments (relating to productivity and function); family allowances; social security and other benefits.
3. 253. Under the terms of the agreement of 29 September 2003, the principal elements of the report were supposed to be incorporated in the Budget Act of 2005 with a view to improving the situation of magistrates, but the Government has disregarded them.

B. The Committee’s conclusions

1. 254. The Committee deeply regrets the fact that, despite the time that has elapsed since the presentation of the complaint, the Government has not supplied the observations and information requested in due time, although it has been invited to do so on several occasions, notably through an urgent appeal made at the Committee’s meeting in May-June 2006. The Committee in particular expresses its concern that the Government has not formulated any observations in another case in which it is implicated (Case No. 2426) and which is reproduced in this report. Under these circumstances, and in accordance with the relevant rule of procedure [see the Committee’s 127th Report, para. 17, approved by the Governing Body at its 184th Session], the Committee must present a report on the substance of this case in the absence of the Government’s observations, which it had hoped to receive in due time.
2. 255. The Committee reminds the Government, first, that the purpose of the whole procedure concerning allegations of infringements of freedom of association is to ensure respect for freedom of association both in law and in fact. While this procedure protects governments against unreasonable accusations, the governments should in turn recognize the importance of supplying, for objective examination, detailed replies to the allegations made against them [see the Committee’s First Report, para. 31].
3. 256. The Committee notes that this complaint concerns failure to implement an agreement dating from September 2003 and signed by the Vice-President of the Republic, under the terms of which a joint technical commission comprising representatives of the Government and of the magistrates was entrusted with the task of “making specific proposals (regarding salary scales and other benefits) for implementing the magistrates’ statute” (article 2 of the technical commission’s standing orders). The commission submitted its report to the President of the Republic in August 2004; the report contained many recommendations on the pay and social benefits which should be available to magistrates. The Committee notes that SYMABU has received no specific reply since that time, and that the main elements of the report which, to a certain extent constitute the nucleus of a collective labour agreement, were not incorporated in the Budget Act of 2005. The Committee also notes that on the date on which the complaint was presented, the magistrates’ statute had been in force for five years without being implemented.
4. 257. It is not for the Committee to express an opinion on the amount of remuneration paid, or on the justification for granting or not granting various benefits and special payments. This matter relates to negotiation between the parties concerned, the voluntary negotiation of collective agreements, and therefore the autonomy of the bargaining partners, is a fundamental aspect of the principles of freedom of association [Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 844].
5. 258. The Committee nevertheless recalls the importance which it attaches to the obligation to negotiate in good faith for the maintenance of the harmonious development of labour relations [Digest, op. cit., para. 814]. It is therefore important that both employers and trade unions bargain in good faith and make every effort to reach an agreement; moreover, genuine and constructive negotiations are a necessary component to establish and maintain a relationship of confidence between the parties [Digest, op. cit., para. 815].
6. 259. Furthermore, the principle that both employers and trade unions should negotiate in good faith and make efforts to reach an agreement means that any unjustified delay in the holding of negotiations should be avoided [Digest, op. cit., para. 816]. In addition, agreements should be binding on the parties [Digest, op. cit., para. 818].
7. 260. Noting that these conditions have not been met in this case, due in particular to the considerable period that has elapsed between the adoption of the magistrates’ statute and the report of the joint commission set up to make recommendations on their terms of remuneration and benefits, the Committee strongly urges the Government to resume genuine and constructive negotiations very quickly with the complainant organization within the framework of the joint commission – a body chosen by consensus – and to implement the latter’s recommendations immediately. The Committee requests the Government to inform it promptly of any follow-up to its recommendation.