Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 378, Junio 2016

1. 114. The complaint is contained in a communication dated 25 March 2015 made by the Cameroon United Workers Confederation (CTUC).
2. 115. The Government sent its observations in communications dated 1 December 2015 and 1 February 2016.
3. 116. Cameroon 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. The complainant’s allegations

1. 117. In a communication dated 25 March 2015, the CTUC objects to the contents of Ministerial Order No. 032/MINTSS/SG/DRP/SDRT of 9 March 2015 (the Ministerial Order of 9 March 2015) establishing the national classification of workers’ trade union confederations in Cameroon following elections of staff representatives held on 15 January 2014. In particular, the complainant alleges that: (i) in accordance with article 20 of Act No. 92-007 of 14 August 1992 on the Labour Code (Labour Code), the representative nature of trade union organizations is established by the number of its members and that trade union elections cannot be considered an element of representativeness; (ii) the order of the Minister of Labour and Social Security (MINTSS) on the classification of workers’ trade union confederations in Cameroon violates the provisions of article 20 of the Labour Code as well as Conventions Nos 87 and 98, since it ignores the numbers of their members and is confined to workers’ organizations while excluding the employers’ organizations which are also members; (iii) the classification of confederations established by the Ministerial Order of 9 March 2015 states neither the number of affiliated unions nor the numbers of their members; (iv) the report of the Committee for collection and analysis of the records of the social elections of 15 January 2014, supposedly a tripartite body, did not include a single employer, and of its 34 members only 12 were present during the collection and analysis of the election records (seven representatives of MINTSS and five from the trade union confederations); (v) the sole aim of the Ministerial Order of 9 March 2015, issued in haste under pressure from the ILO, was to justify accreditations to the 104th International Labour Conference, in 2015, of trade union confederations whose representative status was dubious, to the detriment of confederations, such as the complainant, which are free and independent; (vi) the results of the staff representative elections, made public 14 months after the elections, were falsified and unsubstantiated (for example, during the social elections at the National Electricity Company of Cameroon (ENEO) and the National Water Company of Cameroon (CDE), the National Federation of Workers’ Unions in the Electricity and Water Sectors of Cameroon (FENSTEEEC), an affiliate of the complainant organization, obtained 243 staff representatives, whereas the Ministerial Order of 9 March 2015 attributes only 123 representatives to the CTUC); and (vii) the MINTSS has never published the record of the elections at its ministry, at which the National Union of Contractual Workers of Cameroon (SNCC), affiliated to the complainant, presented candidates and obtained staff representatives.
2. 118. The complainant states that it initiated an appeal several times to challenge the contents of the Ministerial Order of 9 March 2015. When invited, on 23 October 2014, to sign the minutes approving the work of the tripartite committee, the complainant, in a communication to the MINTSS dated 30 October 2014, expressed its objections concerning deliberate violation of the provisions of the Labour Code, data falsification and the publication of erroneous results (according to the complainant, it obtained 637 representatives in the union elections but the Ministerial Order of 9 March 2015 wrongly attributed it 123 representatives). The complainant then lodged a preliminary internal appeal at the MINTSS dated 19 March 2015 requesting rescindment of the Ministerial Order of 9 March 2015 without delay on grounds of deliberate violation of the Labour Code and of Order No. 019/MTPS/SG/SG/CJ of 26 May 1993 as amended by Order No. 0016/CAB/MINTSS of 1 October 2013, failure to implement collection and analysis procedures at the union elections and falsification of their results. A similar communication dated 24 March 2015 was also sent to the Prime Minister. The complainant adds that the results and a comparative analysis of the documents released by the ministerial department raise suspicions of corruption and of conspiracy against it. Accordingly, on 7 April 2015 the complainant filed a complaint with the Administrative Tribunal of the Centre in Yaoundé requesting the suspension of the Ministerial Order of 9 March 2015 and, on grounds of absence of any objective criteria for determining the most representative workers’ organizations, also contested in the ILO Credentials Committee the composition of the Workers’ delegation of Cameroon to the 104th Session of the International Labour Conference (2015).
3. 119. The complainant emphasizes its regret that the Ministerial Order of 9 March 2015 is already published, and considered and used by the Government and certain confederations as the reference document on the representativeness of trade union organizations in Cameroon. It also avers that the Ministerial Order of 9 March 2015 seriously harms its operations and those of its affiliated bodies and denounces a deliberate policy to weaken and divide the trade unions and the inter-union platform in Cameroon. Accordingly, the complainant requests the Committee to invite the Government to rescind the disputed order and to provide accurate information on the trade union organizations representing workers in Cameroon, together with an indication of their membership numbers, in accordance with the Labour Code in force.
4. 120. The complainant also asserts that before the elections it obtained information from an affiliated organization, the SNCC, according to which ministry associates had prevented the SNCC from submitting lists of candidates for the union elections of 15 January 2014 and had declared open candidatures. The complainant addressed a communication dated 9 January 2014 to the MINTSS noting repeated interference by ministry associates and threats made to workers in the ministerial department on account of their trade union membership and because they were standing as candidates in the union elections. The complainant also requested the labour and social security representative for the Centre Region to order that lists of candidates presented by the SNCC be taken into consideration and published at the ministry and in all other jurisdictions.

B. The Government’s reply

1. 121. The Government submitted its observations in communications dated 1 December 2015 and 1 February 2016. Concerning the classification of trade union confederations, the Government states that, under national law, it has jurisdiction to establish the final results of union elections for staff representatives by Ministerial Order, on the basis of records produced by the tripartite committee for that purpose. According to the Government, the Ministerial Order of 9 March 2015 only stated the results of the elections as described in the record and ranked them according to the results achieved by each organization. Thus, the Government’s responsibility cannot be discussed in relation to allegations made pursuant to the provisions of Conventions Nos 87 and 98, which stipulate respect for, and protection of, the rights of trade union organizations, as those rights were neither suspended nor transferred. Concerning trade union representativeness, the Government states that the information on membership numbers that enables trade union representativeness to be determined was not available at the time the Cameroon delegation to the 104th Session of the International Labour Conference (2015) was established, and thus in appointing it the Government made use of the classification resulting from the union elections. The Government then became aware of this deficiency and resolved to correct it. To that end, labour inspectors have been working in the field together with the National Labour Observatory to determine the actual numbers of trade union organization members and of workers employed, in accordance with article 20 of the Labour Code. The Government states that the results of this investigation will provide it with an accurate idea of the number of trade unions and their various members and enable it to identify the most representative workers’ and employers’ unions. The Government asserts that it will transmit these results to the Committee as soon as possible, and that it has sent the Committee a copy of the decision handed down by the Administrative Tribunal of the Centre in Yaoundé to which the complainant had appealed.
2. 122. The Government also transmits the observations made by the Cameroon National Trade Union Confederation Workers’ Alliance (ENTENTE) concerning the complaint. ENTENTE states that, pursuant to article 20 of the Labour Code and in order to determine the representativeness of trade union organizations, the most objective, efficient and stable mechanism remains union elections, which allow workers freely to nominate their representatives. According to ENTENTE, this does not conflict with article 20 of the Labour Code or Convention No. 87. However, ENTENTE states that the poor performance and blatant bias of the tripartite committee for collection and analysis of the records of the union elections of 15 January 2014 led some workers’ organizations to interpret the provisions of the Labour Code incorrectly. According to the trade union organization, reform of the regulations on union elections to establish more transparent collection and analysis of the results of future such elections, from the local to international level, will reduce the complaints and level of frustration. Concerning the investigation involving the National Labour Observatory, ENTENTE considers that the requested information is highly subjective, since only the unions themselves are providing it, and that the investigation is more concerned with restructuring the unions, which in no way diminishes the importance and exclusive objectivity of elections under article 20 of the Labour Code. ENTENTE states further that the investigation can only result in a random statistical estimate with no real influence on the important issue of trade union representativeness.

C. The Committee’s conclusions

1. 123. The Committee notes that this case concerns an objection to the contents of the Ministerial Order of 9 March 2015 establishing the national classification of trade union confederations in Cameroon following the elections of staff representatives held on 15 January 2014.
2. 124. The Committee observes that the complainant organization denounces, firstly, the use of union elections to determine the representativeness of trade union confederations and, secondly, the biased nature of the committee for collection and analysis of the records of the union elections of 15 January 2014, together with interference by the MINTSS in the union elections and threats made against workers belonging to the ministerial department because of their trade union membership and activities. The Committee notes the complainant’s main assertions that: (i) according to article 20 of the Labour Code, the representativeness of trade union organizations is determined by the number of its members, and union elections cannot be considered an element of representativeness; (ii) the Ministerial Order of 9 March 2015 violates this law as well as Conventions Nos 87 and 98, since it does not consider the numbers of members and excludes employers’ organizations; (iii) the classification of confederations set out in the Ministerial Order of 9 March 2015 does not state either the number of affiliated trade unions or the numbers of their members; (iv) the report of the committee for collection and analysis of the records of the union elections of 15 January 2014, supposedly a tripartite body, did not involve a single employer, and of the committee’s 34 members only 12 were present during the collection and analysis of the election records (seven representatives of the MINTSS and five from the trade union confederations); (v) the Ministerial Order of 9 March 2015 was issued in haste to justify accreditations of trade union confederations to the 104th Session of the International Labour Conference (2015); (vi) the results of the staff representative elections were made public 14 months after the elections and were falsified and unsubstantiated (according to the complainant, it had obtained 637 representatives, whereas the Ministerial Order attributed it only 123 representatives); (vii) the MINTSS has never published the records of the elections at its ministry in which the SNCC, affiliated to the complainant, presented candidates and obtained staff representatives; and (viii) the results and comparative analysis of documents released by the ministerial department raise suspicions of corruption and conspiracy against the complainant. The Committee notes a further allegation by the complainant that, according to information from an affiliated organization, the SNCC, ministry associates prevented it from submitting lists of candidates for the union elections of 15 January 2014 and declared open candidatures, and that the complainant noted repeated interference by ministry associates and threats made against workers in the ministerial department on account of their trade union membership and because they were standing as candidates in union elections. The Committee notes that the complainant initiated an appeal several times at the national level to object to the contents of the Ministerial Order of 9 March 2015: a letter of protest was sent to the MINTSS in which the complainant objected to deliberate violation of the provisions of the Labour Code, to data falsification and the publication of erroneous results; a preliminary internal appeal was sent to the MINTSS dated 19 March 2015 aimed at rescinding the Ministerial Order of 9 March 2015 without delay on the grounds of deliberate violation of the Labour Code as well as faulty collection and analysis procedures at the union elections and falsification of their results; a similar communication dated 24 March 2015 was also sent to the Prime Minister; the complainant filed a complaint with the Administrative Tribunal of the Centre in Yaoundé requesting the suspension of the Ministerial Order of 9 March 2015; and, in the absence of any objective criteria for determining the most representative workers’ organizations, it also lodged an objection with the Credentials Committee of the International Labour Conference concerning the composition of the Workers’ delegation of Cameroon to the 104th Session of the Conference (2015). The Committee observes that the complainant highlights the fact that the Ministerial Order of 9 March 2015 seriously damages its operations and those of its affiliated bodies, and that it denounces a deliberate policy to weaken and divide the trade unions and the inter-union platform in Cameroon.
3. 125. The Committee takes note of the Government’s observations that it has jurisdiction to establish the final results of union elections for staff representatives by Ministerial Order, on the basis of records produced by the tripartite committee set up for that purpose. The Committee observes that the Government states that the Ministerial Order of 9 March 2015 merely established the results of the elections as described in the records and ranked them according to the results achieved by each organization, and that the Government’s responsibility cannot be discussed in relation to allegations made pursuant to the provisions of Conventions Nos 87 and 98, since the rights of the trade union organizations were neither suspended nor transferred. The Committee notes that the Government states, on the subject of trade union representativeness, that the information on membership numbers enabling trade union representativeness to be determined was not available at the time the Cameroon delegation to the 104th Session of the International Labour Conference (2015) was established, and thus the Government had used the classification resulting from the union elections to designate the most representative trade unions. The Committee also notes that the Government became aware of this deficiency and resolved to correct it, with the result that labour inspectors are now working in the field together with the National Labour Observatory to determine the actual numbers of members of trade union organizations and of workers employed, to enable the Government to gain an accurate idea of the numbers of unions and their different members and determine the most representative workers’ and employers’ unions in accordance with article 20 of the Labour Code. The Government will transmit this information to the Committee. The Committee notes the Government’s statement that it has transmitted to the Committee the decision of the Administrative Tribunal of the Centre in Yaoundé, but observes that the decision has not been sent to the Committee.
4. 126. The Committee also notes the comment by ENTENTE that the most objective, efficient and stable mechanism for determining the representativeness of trade union organizations remains union elections that enable workers freely to nominate their representatives, and that this is in no way contrary to article 20 of the Labour Code. However, the Committee observes that ENTENTE emphasizes certain shortcomings in the tripartite committee, including its poor performance and its blatant bias in collecting and analysing the union election results. The Committee further observes that, according to ENTENTE, reform of the regulations on union elections so as to establish more transparent conditions for the collection and analysis of future election results would help to reduce the frustrations of the trade union organizations.
5. 127. The Committee takes note from the complainant’s allegations and the Government’s reply, as well as the comments of ENTENTE, that: article 20 of the Labour Code stipulates that the representative nature of a trade union is established, as necessary, by order of the minister responsible for labour, taking into account, for workers’ unions, the numbers of members; on 15 January 2014, elections of staff representatives were held across the whole country; by order of 6 January 2014 the Government set up a tripartite committee within the MINTSS comprising representatives of Government, employers and workers, which was responsible for collecting and analysing records and for drafting a record of all its operations; following analysis of the union election results sent to the tripartite committee, a national classification of trade union confederations of Cameroon was established by the Ministerial Order of 9 March 2015, which ranked the complainant in ninth place for representativeness; the classification was used as the basis for forming the Cameroon Workers’ delegation to the 104th Session of the International Labour Conference (2015); and the complainant made several attempts at the national level to object to the contents of the Ministerial Order of 9 March 2015 and also addressed a communication on this subject to the Credentials Committee of the International Labour Conference. The Committee notes that the Credentials Committee took note of the complainant’s communication objecting to the designation of the Workers’ delegation and decided that the communication did not call for any action on its part. The Committee observes that, while the complainant objects to the use of union elections to determine the representativeness of trade union organizations and requests that the Ministerial Order of 9 March 2015 be rescinded, the Government’s explanation is that, since the information on numbers of members which enables trade union representativeness to be established was unavailable at the time when it was appointing the Cameroon delegation to the 104th Session of the International Labour Conference (2015), the Government used as its basis the results of the classification that emerged from the union elections. The Committee notes with concern the complainant’s allegations, supported by the comments of ENTENTE, that the collection and analysis of results from the union elections, as carried out by the tripartite committee set up for that purpose, was biased and partial and thereby damaging to certain trade union organizations, an allegation on which the Government does not comment. On the other hand, the Committee notes with interest the Government’s statement that labour inspectors, working together with the National Labour Observatory, are recording trade unions in the field to determine their actual numbers and the numbers of their employees, so as to identify the most representative trade union organizations in accordance with article 20 of the Labour Code.
6. 128. The Committee recalls that Conventions Nos 87 and 98 are compatible with systems which envisage union representation for the exercise of trade union rights based on the degree of actual union membership, as well as those envisaging union representation on the basis of general ballots of workers or officials, or a combination of both systems. However, the determination of the most representative trade union should always be based on pre-established criteria so as to avoid any opportunity for partiality or abuse. Recognizing the possibility of trade union pluralism does not preclude granting certain rights and advantages to the most representative organizations. However, the determination of the most representative organization must be based on objective, pre-established and precise criteria so as to avoid any possibility of bias or abuse, and the distinction should generally be limited to the recognition of certain preferential rights, for example for such purposes as collective bargaining, consultation by the authorities or the designation of delegates to international organizations [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, paras 347, 349 and 354.] The Committee trusts that the steps taken by the Government to ascertain the numbers of trade union organizations and their members will permit it to determine the most representative workers’ and employers’ organizations under the current national legislation and in accordance with the abovementioned principles. The Committee requests the Government to forward the decision taken by the Administrative Tribunal of the Centre in Yaoundé concerning the Ministerial Order of 9 March 2015 to which the complainant objects.
7. 129. The Committee notes with concern the statements from the complainant about interference by the MINTSS in union elections and threats made to ministerial department workers on account of their trade union membership and because they were standing as candidates in union elections, and notes that the Government provides no observations on this matter. The Committee wishes to stress that workers and their organizations should have the right to elect their representatives in full freedom, and the latter should have the right to put forward claims on their behalf. Any intervention by the public authorities in trade union elections runs the risk of appearing to be arbitrary and thus constituting interference in the functioning of workers’ organizations, which is incompatible with Article 3 of Convention No. 87, which recognizes their right to elect their representatives in full freedom. Furthermore, acts of harassment and intimidation carried out against workers by reason of trade union membership or legitimate trade union activities, while not necessarily prejudicing workers in their employment, may discourage them from joining organizations of their own choosing, thereby violating their right to organize [see Digest, op. cit., paras 389, 429 and 786]. In light of these principles, the Committee requests the Government to ensure that the public authorities do not intervene in union elections and that workers are not threatened or discriminated against because of their membership of a trade union organization or their legitimate trade union activities.
8. 130. In light of the issues raised by the complainant, the Committee urges the Government to take steps to deepen the social dialogue in the country and invites it to avail itself of ILO technical assistance to this end should it so desire.