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

1. 336. In a communication dated 21 August 2015, the National Organization of Free Trade Unions of Guinea (ONSLG), the General Union of Workers of Guinea (UGTG), the Guinean Confederation of Free Trade Unions (CGSL), the Autonomous Trade Union Confederation of Guinean Workers and Retirees (COSATREG), the General Confederation of Workers of Guinea (CGTG), the Democratic Union of Workers of Guinea (UDTG) and the General Confederation of Work Forces of Guinea (CGFOG) filed a complaint of violations of freedom of association against the Government of Guinea.
2. 337. In a communication of 24 December 2015, the Government presented its observations on the allegations of the complainant organizations.
3. 338. Guinea 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 complainants’ allegations

1. 339. The complainant organizations denounce a process for the determination of trade union representation in the private and public sectors conducted by the Government in violation of legal texts and without their participation. They consider that the legislative void on the organization of trade union elections in the Labour Code and the Guinean Public Service Regulations led to Government interference in trade union affairs with the issuing of a decree regulating the organization of trade union elections, which would constitute a violation of ILO Convention No. 87.
2. 340. According to the complainant organizations, the Labour Code does not regulate the organization of trade union elections, which depend only on the will of organizations of employers and workers. The Minister of Labour had established a review committee to prepare for trade union elections, but the Memorandum of Understanding proposed by the Government as a basis for discussion had been rejected by the trade unions. The General Labour Inspectorate was requested to draft the minutes of that meeting, when Decree No. D/2014/257/PRG/SGG, of 18 December 2014, regulating trade union elections in the public, semi-public and private sectors, was issued by the President of the Republic, before work was finalized. The complainant organizations indicate that this decree was denounced before the national courts and attach a copy of a memorandum submitted to the Supreme Court on this matter.
3. 341. They state that, from 30 March to 7 July 2015, the Government, through the General Labour Inspectorate and the General Inspectorate for the Public Administration, undertook the organization of evaluations/trade union elections of workers’ organizations in the public, semi-public and private sectors, unilaterally excluding the informal sector despite its weight in the national economy. They allege that, out of more than 2,000 enterprises, only 150 were contacted by the ministry responsible for labour. A meeting to announce the results, presided over by the ministers responsible for labour and the public service, was allegedly held on 8 July 2015 without the participation of the trade union confederations, then, on 22 July 2015, a message was sent to all the trade union organizations, to which the complainant organizations replied by letter dated 4 August 2015 (attached to the complaint). The complainant organizations also allege that the minister responsible for labour and his counterpart in the public service sent to the President of the Republic the results contested in five out of 38 communes, for the purpose of designating workers’ representatives to the Economic and Social Council. Consequently, the complainant organizations reject the decisions emanating from these operations and allege the violation of Act No. L/91/004/CTRN of 23 September 1991 on the composition and functioning of the Economic and Social Council.
4. 342. The complainant organizations attach to their complaint copies of Decree No. D/2014/257/PRG/SGG, of 18 December 2014, of Act No. L/91/004/CTRN of 23 September 1991 and of Decree No. D/2015/145/PRG/SGG of 24 July 2015, appointing members of the Economic and Social Council. They also transmit a document containing the final result of the evaluation of the level of representativeness of the national trade union organizations and a letter from the Office of the President of the Republic dated 13 July 2015 on the designation of delegates of the most representative trade union confederations to the Economic and Social Council.

B. The Government’s reply

1. 343. In its communication of 24 December 2015, the Government provided its observations and contested the facts described by the complainant organizations, while also reaffirming its willingness to respect freedom of association.
2. 344. According to the Government, the process for organizing trade union elections and evaluating the representativeness of trade union organizations was conducted with respect for tripartism and involving all employers’ and workers’ organizations in the final decision. These organizations were invited to a tripartite meeting where the draft decree was examined. The meeting, presided over by the employers’ representative, had a trade union representative as vice-president – a member of COSATREG, one of the complainant organizations. While at the outset the principle of issuing an order had been put forward, during the meeting the decision to issue a decree was adopted by the majority of the members present, as only such an instrument would allow simultaneous coverage of the private and the public sectors. The Government states that some trade union confederations contested the decree and that it was informed that the matter would be referred to the Supreme Court, although it had not yet been questioned on the matter by a judicial authority.
3. 345. The Government maintains that, far from being an exclusionary measure, the evaluation of trade union representation was conducted to respect the provisions of the Labour Code and other legislative and regulatory texts requiring that information. The evaluation campaign was launched by the labour inspectorate, which invited the employers to proceed with elections of trade union delegates where necessary, in particular in cases where terms of office had expired. These elections were conducted within enterprises without Government involvement. The follow-up consisted only of an arithmetic computation of the number of members by trade union confederations.
4. 346. The Government highlights the fact that the evaluation process gives a very clear picture of trade union representation in the formal sector. The trade union confederations were told that the difficulties involved in evaluating the informal sector meant that more preparation was necessary in order to be able to assess the protagonists involved, which criteria to use and the modalities for evaluation, and that it would consequently be done at a later stage. The results were announced on 8 July 2015 in the presence of all the trade union organizations and of the employers’ representative, who welcomed the initiative and asked that the process be improved. On that occasion, and later by correspondence, the trade union confederations were asked to nominate members of the tripartite committee responsible for complaints relating to trade union elections. The Government questions the fact that the complaint makes no reference to the fact that several confederations, including the complainant organizations, had nominated a representative to that committee. The observations and complaints addressed to the committee have all been dealt with and are set out in the final evaluation report addressed to all the social partners.
5. 347. The Government considers that the decree is not contradictory and does not replace any provisions of the Labour Code or of ILO Convention No. 87; on the contrary, it fills a legislative void on the organization of trade union elections in the Labour Code and the Guinean Public Service Regulations. It also recalled that it would acknowledge and respect any decision emanating from the Guinean courts which, considering the matter in accordance with article 521.1 of the Labour Code, would cast doubt on the evaluation process and its results.

C. The Committee’s conclusions

1. 348. The Committee notes the complainants’ allegations that the legislative void on the organization of trade union elections in the Labour Code and the Guinean Public Service Regulations led to Government interference in trade union affairs with the issuing of a decree regulating the organization of trade union elections, which would constitute a violation of ILO Convention No. 87, while the Government considers that, far from being an exclusionary measure, the evaluation of trade union representativeness was conducted to respect the provisions of the Labour Code and other legislative and regulatory texts requiring that information.
2. 349. The Committee considers it appropriate to recall first, that on several occasions, and particularly during discussion on the draft of Convention No. 98, the International Labour Conference referred to the question of the representative character of trade unions, and, to a certain extent, it agreed to the distinction that is sometimes made between the various unions concerned according to how representative they are. Article 3(5) of the Constitution of the ILO includes the concept of “most representative” organizations. Accordingly, the Committee felt that the mere fact that the law of a country draws a distinction between the most representative trade union organizations and other trade union organizations is not in itself a matter for criticism. 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. The Committee also recalls that Conventions Nos 87 and 98 are compatible with systems which envisage union representation for the exercise of collective 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. [See Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, paras 346, 349 and 354.]
3. 350. The Committee observes that the complainant organizations allege that the Government conducted the process for the determination of trade union representation in the private and public sectors and adopted a decree on that subject without their participation, which was denounced before the national courts. The Committee notes the Government’s reply, contesting these allegations and indicating that the trade union confederations were invited to a tripartite meeting for which the vice-president was a representative of COSATREG, one of the complainant organizations, during which the draft decree was examined and adopted by a majority of the members present, and stating that it has not yet been questioned on the matter by a judicial authority. The Committee emphasizes the value of consulting organizations of employers and workers during the preparation and application of legislation which affects their interests.
4. 351. In the light of the information provided by the complainant organizations and the Government, the Committee observes that the evaluation of the representation of workers’ organizations in the public, semi-public and private sectors was conducted from 30 March to 7 July 2015 and that the informal sector was excluded despite its weight in the national economy. Recalling that, according to the Transition from the Informal to the Formal Economy Recommendation, 2015 (No. 204), in designing, implementing and evaluating policies and programmes of relevance to the informal economy, including its formalization, the Government should consult with and promote active participation of the most representative employers’ and workers’ organizations, which should include in their ranks, according to national practice, representatives of membership-based representative organizations of workers and economic units in the informal economy, the Committee notes that, according to the Government’s reply, the trade union confederations had been told that the difficulties involved in evaluating the informal sector meant that more preparation was necessary in order to be able to assess the protagonists involved, which criteria to use and the modalities for evaluation, and that it would consequently be done at a later stage. The Committee invites the Government to avail itself of ILO technical assistance in this regard if it so wishes.
5. 352. The Committee observes that, according to the complainant organizations, out of more than 2,000 enterprises only 150 were contacted by the ministry responsible for labour, and the minister responsible for labour and his counterpart in the public service sent to the President of the Republic the results contested by five out of 38 communes, for the purpose of designating workers’ representatives to the Economic and Social Council, in violation of Act No. L/91/004/CTRN of 23 September 1991. The Committee notes the Government’s reply that an evaluation campaign was launched by the labour inspectorate, which invited the employers to proceed with elections of trade union delegates where necessary, in particular in cases where terms of office had expired; that these elections were conducted within the enterprises without Government interference and that the follow-up only consisted of an arithmetic computation of the number of members by trade union confederations. The Committee also notes that, according to the documents submitted by the Government, the union elections took place in the mixed private sector in a sample of 153 enterprises. As the trade union elections were conducted in order to ascertain trade union representativeness at the national level, the Committee requests the Government to indicate whether the choice of enterprises where the elections were held was the subject of consultation with the social partners and to indicate the relevant criteria.
6. 353. Moreover, the Committee observes that Act No. L/91/004/CTRN of 23 September 1991, on the composition and functioning of the Economic and Social Council, makes provision for the appointment of 12 members to represent the employees of the public and private sectors, nominated by the most representative trade union organizations of their branches of activity, and that the nomination of these members by way of Decree No. D/2015/145/PRG/SGG of 24 July 2015, appointing members of the Economic and Social Council, was conducted in accordance with the results set out in the document containing the final results of the evaluation of the level of representativeness, attached by the complainant organizations. The Committee recalls that it has considered, with regard to legislation establishing a system for determining representativeness, that granting the right to sit on the Economic and Social Council only to those trade union organizations deemed to be the most representative in view of the Act would not appear to influence workers unduly in the choice of organization that they wish to join, nor to prevent less representative organizations from defending the interests of their members, organizing their activities and formulating their programmes [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para 357].
7. 354. The Committee further notes the Government’s indication that the results were announced on 8 July 2015 in the presence of all the trade union organizations and the employers’ representative, who welcomed the initiative and asked that the process be improved and that several trade union confederations, including the complainant organizations, nominated their representatives to the tripartite committee responsible for complaints arising from the trade union elections, which dealt with all the observations and complaints addressed to it and which are recorded in the final evaluation report sent to all the social partners.
8. 355. The Committee also observes the Government’s statement that it would acknowledge and respect any decision emanating from the Guinean courts which cast doubt on the evaluation process and its results. The Committee requests the Government and the complainant organizations to keep it informed of any administrative or judicial actions those organizations might file which would challenge the abovementioned decree, the evaluation process or its results, to provide a copy of rulings handed down and to report on any follow-up action taken in respect of these rulings.