Report in which the committee requests to be kept informed of development - Report No 328, June 2002

1. 252. The complaint in the present case is set out in a communication from the Free Federation of Industries and Processing Activities (FLIT-CGSL) dated 11 May 2001.
2. 253. The Government sent its observations in a communication dated 28 January 2002.
3. 254. Gabon has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and the Workers’ Representatives Convention, 1971 (No. 135).

A. The complainant’s allegations

1. 255. In its communication of 11 May 2001, the Free Federation of Industries and Processing Activities (FLIT-CGSL) alleges the refusal by the Minister of State for Labour and Employment to recognize trade union delegates in enterprises, as a result of which the employers have persisted in their efforts to stop all the activities of those representatives.
2. 256. In a circular letter dated 7 May 2001 (which the complainant supplies with the allegations), the Minister of Labour seeks an end to the threat to good industrial relations allegedly posed by the unregulated appointment of trade union delegates, citing sections 301 and 302 of the Labour Code, and states that while trade unions may be represented within the enterprise by trade union delegates, the fact that the way in which they are appointed and carry out their mandate and their periods in office must be established by collective agreement, implies that in the absence of such an agreement, the presence of such representatives would be illegal throughout the enterprise. Under those circumstances, the trade union delegates would be unable to exercise rights not actually provided for under any agreement or regulations, and it would not be justified to extend to them the protection enjoyed by staff delegates under the Labour Code.
3. 257. In a letter sent in reply to the Minister’s circular, the complainant expresses the view that the official refusal to recognize and protect trade union leaders throughout the country is tantamount to restricting their role, functions and mandate.

B. The Government’s reply

1. 258. In its communication of 28 January 2002, the Government explains that, in its circular of 7 May 2001, the Minister of Labour had indicated that too many workers enjoyed trade union immunity, a state of affairs that threatened to undermine peace in the workplace and the employer’s disciplinary prerogatives. For this reason, the Minister called on the leaders of employers’ and workers’ organizations to comply with the law concerning the presence of trade union delegates in enterprises.
2. 259. Under the relevant provision (section 301) of the Labour Code, that presence is tolerated within enterprises, but on condition that the way in which delegates are appointed and exercise their mandate and their periods in office are all established by collective agreements. The applicable collective agreement was last negotiated ten years ago, and did not include the notion of "trade union delegate". The Government concludes from this that, since the legal existence of the delegates in question is thus contingent on the conclusion of a new collective agreement, these representatives do not enjoy the same legal recognition or protection (section 302 of the Labour Code) as staff delegates.
3. 260. The Government states that, consequently, it has repeatedly invited the social partners to negotiate a new agreement in this area, but its appeals have gone unheeded in an international and domestic economic environment that was not propitious to such an initiative. In this context, the Government intends shortly to launch a broad national debate on collective bargaining and the representativeness of trade union organizations with a view, among other things, to finding a way out of the present impasse, which has led to the absence of recognition or protection for trade union representatives in enterprises.

C. The Committee’s conclusions

1. 261. The Committee notes that this case concerns allegations of refusal by the Government to recognize and protect trade union delegates in enterprises. It notes in particular that the Minister of Labour in a circular letter seeks an end to the threats to good industrial relations allegedly posed by an excessive number of workers enjoying trade union immunity. The Government considers that, unless the collective agreement (now more than ten years old) which would govern the status of trade union delegates is brought up to date, the presence of those delegates would be illegal throughout the enterprise and they would therefore not enjoy the legal protection accorded to staff delegates.
2. 262. The Committee notes that the Labour Code recognizes the presence of trade union delegates in enterprises, and makes their legal existence, and thus any protection enjoyed, subject to the negotiation of a collective agreement. In this respect, the Committee would remind the Government that, where there exist in the same undertaking both trade union representatives and elected representatives, appropriate measures should be taken, wherever necessary, to ensure that the existence of elected representatives is not used to undermine the position of the trade unions concerned or their representatives (see Article 4 of Convention No. 135). The Committee further reminds the Government that the right of workers’ organizations to elect their own representatives freely is an indispensable condition for them to be able to act in full freedom and to promote effectively the interests of their members. For this right to be fully acknowledged, it is essential that the public authorities refrain from any intervention which might impair the exercise of this right, whether it be in determining conditions of eligibility of leaders or in the conduct of the elections themselves [see Digest of decisions and principles of the Freedom of Association Committtee, 4th edition, 1996, para. 353].
3. 263. The Committee also notes that the Government initially, on more than one occasion, called on the social partners to negotiate, but in the face of their inaction subsequently endeavoured to launch a broad national debate on collective bargaining and the representativeness of the trade union organizations. Under these circumstances, the Committee requests the Government to take legislative or other measures as soon as possible to grant legal recognition and adequate protection to trade union delegates in enterprises. The Committee recalls in this respect that trade union delegates should be designated by the trade union themselves, without interference from employers or public authorities. The Committee requests to be kept informed of developments in this regard.