Report in which the committee requests to be kept informed of development - Report No 211, November 1981

1. 223. In a communication dated 19 December 1980, the Central Board of the Trade Union Committees of the National Educational and Cultural workers' Union presented a complaint of infringement of trade union rights in Mali. The Government, for its part, forwarded its observations in a letter dated 30 April 1981 and the judicial decisions relating to this matter in a communication received by the ILO ON 26 October 1981.
2. 224. Mali 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).

A. Allegations of the complainant

1. 225. The complaint relates to the arrest, imprisonment, deportation and other summary punishment imposed on trade unionists belonging to the teaching profession.
2. 226. In its letter of 30 April 1980, the complainant states that the events began on 15 March 1979, when the National council of the National Educational and Cultural Workers' Union (SNEC), which is affiliated to the Mali National Union of Workers (UNTM), decided to organise a march to protest against a newspaper article criticising teachers' demands for an upgrading of their profession. The text of a statement by the Secretary-General of the SNEC, calling workers to demonstrate in connection with the newspaper article, is attached to the complaint. However, the complainant continues, ten minutes before the march, when all of the militants had assembled, the SNEC called it off.
3. 227. The militants immediately demanded the resignation of the national leadership of the trade union movement on the ground of evident collusion between it and the Government. An extraordinary congress, which had been planned by the national leadership for the month of May under the pressure of the militants, was not held in the end because the Government, according to the complainant, considered it to be a threat to law and order.
4. 228. The complainant further alleges that, following subsequent dissolution of the trade union organisations, the trade union Committees freely reorganised within a Central Board enjoying a large hearing. Up to 29 July 1980, the Central Board obliged the Government and the trade unions which, according to the allegations, were government controlled, to deal with it. The Government and those unions, however, decided to put an end to the Central Board's activities, as is clear, the complainant states, from the action taken against their members,
5. 229. The complainant explains that the teachers, without ever stopping to give their courses regularly, refrained from taking part in the supervision and correction of the year-end examinations for which they had demanded compensation in vain. Their salaries were then suspended for three months, from July to September. Twelve union-member teachers were arrested and on 12 September 1980 sentenced by the Bamako criminal court to three and four months' imprisonment and transferred, by order of the Minister of the Interior, to unknown places. An appeal was lodged by their counsel. By a decision of the Minister of the Interior on 4 December 1980, the convicted trade unionists were also excluded from the teaching profession and assigned to administrative posts in the Sahel at the rank of sub-prefectural secretarial clerks. According to the complainant, 20 other union-member teachers face the same penalties.
6. 230. Documentary evidence in support of its complaint is attached by the complainant, including ministerial circulars announcing the withholding of the teachers' salaries and their transfer to posts in the Sahel and an attestation from their counsel addressed to the Minister of Justice to the effect that his clients had been transferred to unknown places by order of the Ministry of the interior.
7. 231. The memorandum attached to the complaint explains that the arrested trade unionists were charged with "opposing the lawful authorities" for wishing, according to them, to put an end to government-controlled trade unionism. The memorandum also refers to reprisals against the imprisoned trade unionists; interrogation of their wives; physical assault and moral attacks against teachers who came to visit them at police headquarters; holding of the accused in custody for an excessive period of time; failure to provide notification of arrest and search warrants; and refusal to permit communications during the period of remand in custody pending trial.

B. The Government's reply

1. 232. In its communication of 30 April 1981, the Government explains that during 1979-80 the normal functioning of educational institutions was disrupted by strikes, leading to the boycotting of examinations.
2. 233. Just before the examinations, the SNEC, an organisation affiliated to the UNTM, had considered the rates to be applied for compensating supervision, correction and secretarial work. Following negotiations between the competent national authorities and the executive Committees of the above-mentioned trade unions, states the Government, an agreement was reached between the parties on the payment of compensation at a higher rate.
3. 234. The Government further states that, whereas the agreement was endorsed by the great majority of the teachers, it was rejected by a small group who were dissatisfied with its terms. First known as the "Examination Correction Board", this group without having acquired any legal status establishing its existence as a trade union organisation, then took the name of "Board of the Trade Union Committees of Bamako and Kati" and finally "Central Board of the SNEC Trade Union Committees".
4. 235. The Government adds that the situation created by this group of teachers led the public authorities to take measures to safeguard and protect the sovereignty of the State, and the police apprehended in the act of sedition in the public thoroughfare numerous demonstrators committing acts of vandalism (setting fire to property, looting, throwing stones against buildings, assaulting individuals). The Government asserts that the inquiry proved that the acts were committed according to instructions given by a group of teachers including those presenting the complaint. However, the persons concerned were charged only with the offence of opposing the lawful authorities and sentenced to three or four months' imprisonment according to the case.
5. 236. The Board presenting the complaint is, the Government states, an unofficial, clandestine organisation which has not deposited any by-laws or been recognised by the Malian authorities, as required under section 263 of the Labour Code. Therefore, it has no legal existence and no authority to refer a complaint to the ILO in the name of workers whom it does not represent. The Government submits that the complaint is not receivable.
6. 237. In reply to the various grievances invoked by the complainants, the Government states, regarding the status and upgrading of the teaching profession, that Malian teachers are public servants subject to the General Public Service Statute, that they enjoy the right to organise and, if they consider that their rights are infringed, are entitled to appeal through administrative and judicial channels. Measures were recently adopted to improve the situation of teaching staff, including, in November 1979, an increase in the teachers' allowance from 25 to 50 per cent according to the duty station. Regarding the non-payment of unworked days, the Government explains that, in accordance with law, officials who are irregularly absent from work are not entitled to pay. The members of the complainant organisation could not claim their salaries since they had boycotted the examinations and deserted their posts; this accounted for the non-payment of salaries beginning in July.
7. 238. In connection with the criminal proceedings, the Government sends the judgement of the court of first instance of Bamako dated 2 September 1980 and the appeal decision handed down by the circuit court at Gao on 28 November 1980. It denies that there was any infringement of freedom of association: since the examination strike was not called according to the normal procedure, its instigators had infringed section 79 of the Criminal Code providing that anyone who, through acts, speech, gestures or machinations, opposes the exercise of lawful authority and anyone who, through voluntary abstention, disturbs law and order or obstructs the normal operation o€ administrative services shall be liable to a fine or up to three months' imprisonment. If there is more than one perpetrator, the sentence may be doubled. Moreover, under the law governing the organisation of the Judiciary, courts are authorised to move to any locality within their jurisdiction it is therefore to no avail to the counsel of the members of the complainant organisation, the Government states, to have protested against their transfer to the north where the court subsequently moved for their trial. As for the granting of permission to communicate with visitors, the Government stresses that the time limits imposed on those who had received such permission were due to the large number of visitors.
8. 239. Regarding the transfers to the Sahel, the Government states that these were administrative measures intended in particular to safeguard law and order. It claims that the transferred teachers enjoy the same opportunities as other public servants for promotion to various posts of responsibility. The complainants have the possibility of applying to the administrative section of the Supreme Court responsible for public service disputes. No application, it adds, has been made to that section.
9. 240. The Government states that the teachers convicted were released after having served their sentence. None is under arrest for any reason whatever at present.

C. The Committee's conclusions

1. 241. Firstly, the Committee notes that the Government does not consider the complaint to be receivable since it does not come from any recognised organisation of workers, pointing out that the group known as the "Central Board of Trade Union Committees" has not deposited its by-laws in accordance with law.
2. 242. In this connection the Committee on Freedom of Association, at its first meeting in January 1952, adopted the principle that it possesses full freedom to decide whether an organisation may be deemed to be an employers' or workers' organisation within the meaning of the ILO Constitution, and it does not consider itself bound by any national definition of the term. In the case in question, the Committee considers that, as it has already pointed out on a previous occasion, the fact that a trade union has not deposited its by-laws as may be required by national laws is not sufficient reason to make its complaint irreceivable since the principles of freedom of association demand precisely that the workers shall be enabled, without previous authorisation, to establish organisations of their own choosing.
3. 243. As to the substance of the complaint, the Committee observes that the present case relates to a collective labour dispute in the sector of public education caused, according to the complainant, by the Government's refusal to grant compensation to teachers for supervising and correcting examinations.
4. 244. The Committee notes the Government's statement that the resulting situation led it to take measures to safeguard and protect the sovereignty of the State. Consequently, according to the Government, the police apprehended in the act of sedition in the public thoroughfare numerous demonstrators committing acts of vandalism according to instructions from the teachers who submitted the complaint.
5. 245. Regarding the alleged refusal to grant compensation for correcting the examinations, the Government states that an agreement had been reached between the UNTM and SNEC executive Committees and the authorities involved concerning the payment of compensation at a higher rate.
6. 246. However, the Committee also notes that the teachers belonging to the Central Board of SNEC Trade Union Committees, an organisation which had been set up previously, were opposed to the agreement. The strike movement which ensued resulted in the imprisonment for three or four months of 12 trade unionists who, after having served their sentences, were excluded from the teaching profession and transferred to the Sahel.
7. 247. In the Committee's opinion, the agitation of the leaders of the Central Board of SNEC Trade Union Committees who were convicted of incitement to violence during the labour dispute goes beyond what may be defined as normal trade union activities.
8. 248. Nevertheless, the Committee considers that after the Government had found that the agreement concluded with the SNEC concerning compensation for correcting examinations was opposed by part of the teaching profession, constructive negotiations should have been initiated with all of the parties concerned, including the representatives of the Central Board of SNEC Trade Union Committees, in accordance with the principles of freedom of association. In this way it might have been possible to avoid the tensions produced in the present case.
9. 249. Concerning the prison sentences imposed on the strikers, the Committee notes from an examination of the judicial decisions supplied by the Government that they were sentenced to 3 and 4 months' imprisonment only for having refused to supervise the examinations of the 1979-80 scholastic year. The Committee also notes the Government's statement that, after having served their sentence, the persons concerned were all released. It nevertheless believes that it is important to recall once again that an inflexible attitude in applying excessively severe penalties for strike occurrences may jeopardise the development of labour relations and points out that penalties should in every instance be proportionate to the offence committed.
10. 250. As regards the transfer of teachers who took part in the strike, the Committee, while taking note of the Government's statements, wishes to stress that a fundamental principle of freedom of association is that trade unionists should enjoy adequate protection against any acts of anti-union discrimination affecting their freedom in respect of employment, suspensions, transfers, downgrading and other prejudicial action. The Committee has also stated that a policy of transferring trade unionists may be harmful to the proper functioning of trade union activities.
11. 251. Consequently, the Committee stresses the importance it attaches to a review of the situation of the 12 teachers transferred to posts outside their original faculty, with a view to calming the tensions in the country and within the trade union movement.