Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 368, Junio 2013

1. 380. The complaint is contained in a communication dated 9 January 2012 from the Gabonese Labour Confederation-Force libre (CGT-FL). The World Federation of Trade Unions (WFTU) supported the complaint in a communication dated 9 January 2012.
2. 381. The Government sent information in a communication dated 8 February 2013.
3. 382. 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. 383. In its communication dated 9 January 2012, the CGT-FL reports acts of anti-union discrimination against officials of an affiliated organization, the TELECEL Employees’ Free Trade Union (SYLET), the enterprise trade union at the Atlantique Télécom Gabon (MOOV-GABON) enterprise.
2. 384. The complainant describes the context which resulted in the dispute between the trade union and the company and led to the submission of the complaint to the Committee, particularly the notice of strike action given by SYLET on 19 August 2009 with a view to getting the management of the enterprise to negotiate with regard to a number of demands concerning improvements to workers’ living conditions. The complainant also denounces the company’s refusal to implement measures relating to matters which were referred to conciliation by the labour court (records of 24 March and 2 September 2010). The complainant describes the following sequence of events:
   • ■ At the employer’s request, negotiations resumed on 28 October 2011.
   • ■ SYLET sent written reminders to the enterprise concerning implementation of the agreements resulting from the negotiations.
   • ■ Notice of strike action was given.
   • ■ SYLET filed a complaint against the enterprise in the court of first instance of Libreville.
   • ■ SYLET applied to a bailiff for attachment (seizure) of the company’s assets at various banks.
   • ■ The company suspended the members of the SYLET executive committee.
   • ■ The company dismissed seven of the ten SYLET executive committee members.
3. 385. The complainant demands the reinstatement of the seven SYLET executive committee members who it considers to have been wrongfully dismissed. It also reports anti-union acts by the employer (surveillance of trade union officials, threats against trade unionists, intimidation of workers, use of strike-breakers). The complainant also denounces the excessive length and ineffectiveness of the labour directorate’s mediation and arbitration procedures.

B. The Government’s reply

1. 386. In a communication dated 8 February 2013, the Government indicates firstly that the late transmission of its observations is due to the legal remedies sought by the parties to the dispute and to the changes that have occurred, especially in the administration responsible for handling the matter.
2. 387. The Government explains that the labour dispute at MOOV-GABON (hereinafter, the enterprise) essentially concerned the following points:
   • ■ The application of the 2010 administrative regulations, adopted in the wake of strikes, which provided for a number of social benefits (pay rise, regularization of employee reclassifications, increase in the housing allowance, payment of the company performance bonus, etc.).
   • ■ The application of the policy for assistance with vehicle purchase, which is based on two agreements. The first agreement is concerned with purchase by the employer of official vehicles which would be transferred to workers on payment of 20 per cent of the vehicle value after depreciation. The second agreement is concerned with facilitating the purchase of private cars through interest-free loans to workers. Implementation of the second agreement was postponed until the following month because of unfinished negotiations with the suppliers.
   • ■ The application of certain legal and regulatory provisions, especially with regard to the establishment of the Standing Committee for Economic and Social Cooperation (CPCES).
3. 388. The Government indicates that the dispute was brought before the labour inspectorate, in accordance with sections 357 ff. of the Labour Code, and was referred to conciliation conducted by the Provincial Directorate of Labour, the Workforce and Employment of Estuaire province on 2 September 2010. Under the terms of the conciliation agreement, the employees undertook to cancel the notice of strike action, the employers agreed to refrain from any retaliation against the workers who had taken part in the protests leading to the notice of strike action, and both parties pledged to observe the timetable for the implementation of commitments laid down in the agreement.
4. 389. According to the Government, because of procrastination by the employer in implementing its commitments, SYLET requested intervention by a bailiff to enforce the terms of the conciliation agreement. The bailiff ordered the enterprise to pay 407,124,199 CFA francs (XAF) (US$812,625) to cover company performance bonuses, dirty work allowances and the vehicle purchase plan (car plan). Since payment of the specified amount was not received, the bailiff ordered the attachment (seizure) of the enterprise’s financial assets at several banks in June 2011.
5. 390. The enterprise, considering this act unjustified and inappropriate, took legal action to challenge the attachment. The urgent applications judge found that the conciliation agreement approved by the court made no mention of a jointly agreed amount that would constitute an enforceable order under the law and declared the attachment in progress to be null and void on account of this legal defect (court of first instance, urgent applications judge, Ordinance No. 149/2010-2011 of 29 July 2011).
6. 391. Further to the decision of the court, the enterprise demanded explanations from the employees who had instigated the attachment of the bank accounts, on the grounds that the procedure had been harmful to the company. Of the 11 SYLET members who were questioned, four were exonerated on account of their conciliatory attitude. The enterprise argued that the attachment undertaken at the request of SYLET had disrupted its operations since it had been obliged to defer tax payments and payments to suppliers and employees. The enterprise considered that the SYLET officials had overstepped their rights and abused their prerogatives as trade union representatives, undermining industrial relations and the company’s financial interests. The enterprise therefore sent a request to the labour inspectorate to authorize the dismissal of the SYLET officials for serious misconduct, on the grounds of a breach of trust that would prevent any continuation of the contractual relationship.
7. 392. Further to the request for dismissal, the labour inspectorate held adversarial hearings in connection with the preliminary investigation and subsequently granted the authorization of dismissal for serious misconduct (Decision No. 0538/MTEPS/SG/DGTMOE/ DPTMOEE of 20 October 2011). Consequently, the enterprise notified the workers concerned of their dismissal on 24 November 2011.
8. 393. On the day following the notification of dismissal, the dismissed workers filed a hierarchical appeal with the Directorate-General of Labour, the Workforce and Employment to seek reversal of the labour inspectorate’s decision. On examining the appeal, the Directorate-General of Labour found that dismissal was not applicable to the 11 employees concerned by the measure and stated that this gave the impression of differentiated treatment contrary to the principle of non-discrimination. Consequently, the Directorate-General of Labour overturned the authorization of dismissal granted by the labour inspectorate.
9. 394. The decision to overturn the authorization of dismissal was sent to the Director-General of the enterprise in correspondence dated 29 December 2011. The Directorate-General of Labour called for the reinstatement of the seven employees, the payment of their wages and also the granting of benefits in kind backdated to the day of their suspension. According to the Government, this decision of the Directorate-General of Labour received widespread comment in the national press.
10. 395. The enterprise filed a hierarchical appeal with the Labour Minister seeking reversal of the decision of the Directorate-General of Labour. However, on 16 January 2012, the Minister upheld the Labour Directorate-General’s decision. In response to an appeal filed by the enterprise on 12 January 2012, the highest administrative authority ordered that the file should be handed over to the Director-General of Labour and the Legal Officer of the Treasury for a reply within 15 days (Council of State, Ordinance No. 038/PP-CE/27 February 2012).
11. 396. The Government holds the view that the administrative and judicial authorities have discharged their role in the collective labour dispute and considers that the allegations of trade union rights violations in Gabon presented by the complainant are unfounded.

C. The Committee’s conclusions

1. 397. The Committee notes that the present case concerns the refusal by an enterprise to implement agreements resulting from a conciliation procedure and the dismissal of members of the executive committee of the enterprise trade union.
2. 398. The Committee notes from the information supplied by the complainant that, further to a labour dispute, SYLET gave notice of strike action on 19 August 2009 with a view to getting the management of the MOOV-GABON company (hereinafter, the enterprise) to negotiate with regard to a number of demands concerning improvements to workers’ living conditions. In September 2010, an agreement on several points was found by means of a conciliation procedure. However, the enterprise refused to implement the points of agreement despite reminders from SYLET. Negotiations resumed on 28 October 2011 at the request of the enterprise. Nevertheless, SYLET filed a complaint against the enterprise in the court of first instance of Libreville and applied to a bailiff for attachment of the assets of the enterprise at various banks. In retaliation for the action by SYLET, the enterprise suspended the members of the SYLET executive committee and dismissed seven of them.
3. 399. The Committee notes the complainant’s demand for the reinstatement of the seven SYLET executive committee members, who it considers to have been wrongfully dismissed. The Committee further notes that the complainant denounces the excessive length and ineffectiveness of the mediation and arbitration procedures of the Labour Directorate-General.
4. 400. The Committee notes the Government’s explanations concerning the dispute between SYLET and the enterprise. According to the Government, the dispute was brought before the labour inspectorate and was referred to conciliation conducted by the Provincial Directorate of Labour, the Workforce and Employment of Estuaire province on 2 September 2010. Under the terms of the conciliation agreement, the employees undertook to cancel the notice of strike action, the employers undertook to refrain from any retaliation against the workers who had taken part in the protests leading to the notice of strike action, and both parties pledged to observe the timetable for the implementation of commitments laid down in the agreement. However, because of procrastination by the employer in implementing its commitments, SYLET requested intervention by a bailiff to enforce the terms of the conciliation agreement. The bailiff ordered the enterprise to pay 407,124,199 CFA francs (US$812,625) to cover company performance bonuses, dirty work allowances and the vehicle purchase plan (car plan). Since payment of the specified amount was not received, the bailiff ordered the attachment of the enterprise’s financial assets at several banks in June 2011.
5. 401. The Committee notes the Government’s indication that the enterprise took legal action to challenge the attachment and secured a nullification of the attachment by the urgent applications judge. Further to the decision of the court, the enterprise demanded explanations from the employees who had instigated the attachment of the bank accounts, on the grounds that the procedure had been harmful to the company.
6. 402. The Committee notes the indication that, of the 11 SYLET members who were questioned by the enterprise, four were exonerated on account of their conciliatory attitude. However, the enterprise argued that the attachment undertaken at the request of SYLET had disrupted its operations since it had been obliged to defer tax payments and payments to suppliers and employees. Holding the view that the SYLET officials had abused their prerogatives as trade union representatives, undermining industrial relations and the financial interests of the enterprise, the enterprise sent a request to the labour inspectorate to authorize the dismissal of the SYLET officials for serious misconduct, on the grounds of a breach of trust that would prevent any continuation of the contractual relationship. The labour inspectorate, having granted the authorization in October 2011, the enterprise notified the workers concerned of their dismissal on 24 November 2011.
7. 403. The Committee notes that, following the notification of dismissal, the workers concerned filed a hierarchical appeal with the Directorate-General of Labour, the Workforce and Employment (Directorate-General of Labour) to seek reversal of the labour inspectorate’s decision. On grounds of discriminatory treatment, the Labour Directorate-General overturned the authorization of dismissal granted by the labour inspectorate. In the decision to overturn the authorization of dismissal sent to the Director-General of the enterprise in correspondence dated 29 December 2011, the Directorate-General of Labour called for the reinstatement of the seven employees, the payment of their wages and also the granting of benefits in kind backdated to the day of their suspension. According to the Government, this decision of the Directorate-General of Labour received widespread comment in the national press.
8. 404. The Committee notes that the enterprise filed a hierarchical appeal with the Minister of Labour seeking reversal of the decision of the Directorate-General of Labour. However, on 16 January 2012, the Minister upheld the Directorate-General of Labour’s decision. Moreover, in response to an appeal filed by the enterprise on 12 January 2012, the Council of State ordered that the file should be handed over to the Director-General of Labour and the Legal Officer of the Treasury for a reply within 15 days (Council of State, Ordinance No. 038/PP-CE/27 February 2012).
9. 405. The Committee notes the Government’s view that the administrative and judicial authorities have discharged their role in this matter and that the allegations of trade union rights violations presented by the complainant are unfounded.
10. 406. The Committee observes that, for its part, the complainant organization denounces anti union acts by the enterprise (surveillance of trade union officials, threats against trade unionists, intimidation of workers, use of strike-breakers). Noting that the Government has not sent any observations regarding these serious allegations, the Committee requests it to take the necessary steps, particularly through the inspection services, to investigate their veracity and to keep it informed of the outcome and any follow-up action taken.
11. 407. With regard to the suspension of the members of the SYLET executive committee and the dismissal of seven of them for applying to the court for attachment of the assets of the enterprise to honour the commitments made in the conciliation agreement, 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. 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. In no case should it be possible to dismiss a trade union officer merely for having presented a list of dispute grievances; this constitutes an extremely serious act of discrimination [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, paras 799, 804 and 808].
12. 408. The Committee notes the various legal remedies sought by the parties which resulted, in particular, in a decision of 16 January 2012 from the Minister of Labour calling for the reinstatement of the seven SYLET members, upholding a decision of the Directorate-General of Labour. The Committee notes the intervention of the administrative and judicial authorities in this matter, in accordance with the legislation in force, and the decision taken. However, the Committee notes with regret that, more than a year after the imposition of a ministerial order on the enterprise, the Government has not sent any information on the follow-up action taken, in particular indicating whether the seven SYLET members were actually reinstated by the enterprise. The Committee requests the Government to indicate whether the seven SYLET executive committee members who were dismissed have been reinstated by the enterprise as required by the decision of the Directorate-General of Labour in October 2011 and upheld by a ministerial decision of January 2012. If not, the Committee expects that all possible steps will be taken to enforce the administrative decision without delay and that the workers will be reinstated under the prescribed conditions. Should there be any compelling and objective reasons why reinstatement proves impossible, the Committee requests the Government to take the necessary steps to ensure that appropriate compensation is paid, such as to constitute an adequate deterrent against acts of anti-union discrimination.
13. 409. With regard to observance of the agreements reached, the Committee recalls the importance which it attaches to the obligation to negotiate in good faith for the maintenance of the harmonious development of labour relations. Moreover, agreements should be binding on the parties [see Digest, op. cit., paras 934 and 939]. The Committee requests the Government to indicate the extent to which effect has been given to the agreements reached in September 2010 between SYLET and the enterprise as a result of the conciliation procedure.