Report in which the committee requests to be kept informed of development - Report No 351, November 2008

1. 575. The complaint is contained in a communication dated 22 October 2007 from the Confédération syndicale du Congo (CSC).
2. 576. As the Government failed to respond, the Committee was obliged to postpone its examination of this case on two occasions. At its meeting in June 2008 [see the 350th Report, para. 10], the Committee issued an urgent appeal to the Government indicating that, in accordance with the rule of procedure established in paragraph 17 of its 127th Report, approved by the Governing Body, it could present a report on the substance of the case at its next meeting even if the information or observations requested were not provided in time. To date the Government has not supplied any information.
3. 577. The Democratic Republic of the Congo 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. 578. In a communication dated 22 October 2007, the CSC states that a number of trade union delegates were elected for the first time at the audiovisual enterprise RAGA following elections on 27 February 2007. The delegates in question, it is claimed, started talks with the management with a view to improving working conditions for staff at the company. During one meeting on 28 April 2007, the trade union officials are said to have suggested using the model contract of the National Employment Office and adapting it to the specific requirement of the company. The complainant organization reports that the employer broke off talks some days after the meeting in question, and published work and holiday timetables which would allow the employer to avoid paying any overtime work. Some weeks later, according to the CSC, the workforce was asked to sign a new type of contract which differed from the one originally proposed by the trade union delegation, and which would have had the effect of cancelling seniority.
2. 579. The complainant organization indicates that the trade union delegates complained about the management of the enterprise, describing it as non-transparent, and in correspondence dated 9 May 2007 alleged that there had been violations of the Labour Code; no action was taken in response to these allegations. On 19 May 2007, the employer notified the urban labour inspectorate and requested authorization for the dismissal of nine trade union delegates. That authorization was given in a letter, No. 22/121/DPIT/178/IUT/MBK-OPJ/2007 of 23 May 2007, and the nine delegates in question were informed of their dismissal without prior notice on 28 May 2007.
3. 580. In the light of this situation, the workforce held a work stoppage to demand the reinstatement of the trade union delegates. In addition a meeting convened by the Ministry of Labour and Social Security on 4 June 2007 ended with the adoption of Ministerial Order No. 12/CAB/MIN/TPS/OY/RN/12/2007 cancelling the decision of the urban labour inspectorate on the grounds that the trade union delegates were acting in the exercise of their legitimate mandate and had not exceeded their prerogatives in seeking the best living and working conditions. The complainant organization states that, despite the fact that the company management was informed of the Ministerial Order by the General Labour Inspector, the enterprise has still not reinstated the dismissed delegates and thus is, with the support of the Federation of Congolese Enterprises (FEC), calling into question the decision of the Ministry of Labour and Social Security.

B. The Committee’s conclusions

1. 581. The Committee regrets that, despite the time that has passed since the presentation of the complaint, the Government has not replied to the allegations made by the complainant organization, despite the fact that it has been invited on more than one occasion, including by means of an urgent appeal, to present its own comments and observations on the case. The Committee urges the Government to be more cooperative in future.
2. 582. Under these circumstances and in accordance with the applicable procedural rule [see the Committee’s 127th Report, para. 17, approved by the Governing Body at its 184th Session], the Committee is obliged to present a report on the substance of the case without having the information it had hoped to receive.
3. 583. The Committee reminds the Government that the purpose of the whole procedure established by the ILO for the examination of allegations of violations of freedom of association is to ensure respect for that freedom in law and in fact. The Committee remains confident that, if the procedure protects governments from unreasonable accusations, governments on their side will recognize the importance of formulating, for objective examination, detailed replies concerning allegations made against them [see the Committee’s First Report, para. 31].
4. 584. The Committee notes that this case concerns the employer’s move to break off collective bargaining followed by the dismissal of trade union delegates. The Committee notes that the trade union delegates at the audiovisual enterprise RAGA elected to trade union office on 27 February 2007 entered into collective talks with the management of the company with a view to improving conditions of work. In this regard, in the course of the negotiations, the trade union delegation is said to have proposed using the model contract used by the National Employment Office, with certain changes in line with the specific requirements of the enterprise. The Committee notes that according to the complainant organization, the management broke off talks and unilaterally adopted new work schedules and holiday arrangements that allowed the employer to avoid paying overtime hours worked. The Committee also notes the information to the effect that, subsequently, the enterprise asked the entire workforce to sign a new type of employment contract that differed from the one originally proposed by the trade union delegation and would have had the effect of abolishing seniority.
5. 585. The Committee recalls in this regard that it is 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 [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 935]. The Committee considers that if the actions of the management as alleged by the complainant are found to be true, they would indicate an absence of bargaining in good faith on the part of the management, which would not be conducive to sound and harmonious relations between the management and the workers’ representatives.
6. 586. The Committee notes also that, following correspondence dated 9 May 2007 from trade union delegates complaining about the management of the enterprise, which they describe as non-transparent, and alleging violations of the Labour Code, the management of the enterprise notified the urban labour inspectorate of its intention to dismiss the workers. The Committee notes that authorization for the dismissals was given in letter No. 22/121/DPIT/178/IUT/MBK-OPJ/2007 of 23 May 2007 from the urban labour inspectorate, and that the nine trade union delegates were informed of their dismissal without prior notice on 28 May 2007.
7. 587. As regards the alleged dismissals, the Committee recalls that one of the fundamental principles of freedom of association is that workers should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment, such as dismissal, demotion, transfer or other prejudicial measures. This protection is particularly desirable in the case of trade union officials because, in order to be able to perform their trade union duties in full independence, they should have a guarantee that they will not be prejudiced on account of the mandate which they hold from their trade unions. The Committee has pointed out that one way of ensuring the protection of trade union officials is to provide that these officials may not be dismissed, either during their period of office or for a certain time thereafter except, of course, for serious misconduct [see Digest, op. cit., paras 799, 801 and 804].
8. 588. The Committee notes the statement to the effect that a meeting convened by the Ministry of Labour and Social Protection on 4 June 2007 led to the adoption of Ministerial Order No. 12/CAB/MIN/TPS/OY/RN/12/2007 cancelling the decision of the urban labour inspectorate on the grounds that the trade union delegates had acted in the exercise of their legitimate mandate and had not exceeded their prerogatives to seek the best living and working conditions. The Committee also notes that, despite the Ministerial Order in question, the enterprise has still not reinstated the dismissed delegates and, with the support of the FEC, has called into question the nature of the decision by the Minister of Labour and Social Protection.
9. 589. The Committee, while taking note of the Government’s attempts to mediate, recalls that legislation should lay down explicitly remedies and penalties against acts of anti-union discrimination [see Digest, op. cit., para. 813]. The sanctions that are provided should be sufficiently dissuasive to prevent a recurrence of such acts. The Committee also recalls that workers who consider that they have been prejudiced because of their trade union activities should have access to means of redress which are expeditious, inexpensive and fully impartial [see Digest, op. cit., para. 820]. The Committee requests the Government and the complainant organization to report any action brought before the competent courts concerning the dismissal of the nine trade union delegates of the RAGA enterprise. The Committee also asks the Government to supply copies of any ruling handed down.
10. 590. In general, with regard to the serious allegations that have been made in this case, the Committee, while taking note of the swift action taken by the Government to settle the dispute, wishes to voice its concerns at a situation which appears not to have evolved for several months. The Committee urges the Government to inform it without delay of the situation of the nine trade union delegates dismissed from the RAGA enterprise and to take immediate measures to implement without delay the Ministerial Order requiring their reinstatement in their posts without loss of pay. The Committee also requests the Government to provide information on the current situation with regard to collective negotiations at the enterprise.