Observation (CEACR) - adoptée 2004, publiée 93ème session CIT (2005)

The Committee notes the information supplied in the Government’s report and the Government’s reply to the comments on the application of the Convention by the International Confederation of Free Trade Unions (ICFTU) and the Confederation of Burundi Trade Unions (COSYBU).

Article 2 of the Convention. 1. Right of public employees without distinction whatsoever to establish and join organizations of their own choosing. In its previous comments, the Committee noted the entry into force of Act No. 1-001 of February 2000 amending the magistrates’ regulations, and observed that the Act contained no express reference to magistrates’ right of association. Since magistrates are not governed by the same rules as public servants, the Committee requested the Government to indicate in its next report the provisions that ensure the right to organize of magistrates. It notes in this connection that, according to the Government, the Union of Magistrates of Burundi (SYMABU) was registered by Ministerial Ordinance No. 660/100/94 of 1 June 1994 and is operating normally. It notes, however, that according to COSYBU’s comments of 3 November 2003, following a magistrates’ strike, the Minister of Justice denied SYMABU’s existence in law and asserted that magistrates do not have the right to organize.

Recalling that all public service employees should have the right to establish occupational organizations, the Committee asks the Government to specify in its next report whether magistrates have the right to organize and, if so, to indicate the provisions laying down this right for magistrates. The Committee also requests the Government to reply in its next report to COSYBU’s assertion that SYMABU has been denied existence in law.

2. Right to organize of minors. For several years the Committee has been raising the matter of the compatibility of section 271 of the Labour Code with the Convention. Section 271 provides that minors under the age of 18 may not join a trade union without express permission from their parents or guardians. The Committee notes the Government’s statement in its report that minors will be given the right to organize in the forthcoming revision of the Labour Code. The Committee notes this information and requests the Government to ensure fully the right to organize of minors of working age without authorization from their parents or guardians.

Article 3. Right of workers’ and employers’ organizations to draw up their constitutions and rules, to elect their representatives in full freedom, to organize their administration and activities and to formulate their programmes without interference from the public authorities. 1. Election of trade union officers. In its previous comments the Committee noted that the Labour Code sets a number of conditions for holding the position of trade union officer or administrator.

(a) Criminal record. Under section 275(3) of the Labour Code, anyone sentenced to more than six months’ imprisonment with no suspension of sentence may not hold trade union office. In its report for 2002, the Government stated that it was planning to amend this provision after consulting the National Labour Council, in the light of the Committee’s observation that conviction for an act which, by its nature, does not call into question the integrity of the person and implies no real risk for the performance of trade union duties should not constitute grounds for exclusion from trade union office.

(b) Belonging to the occupation. Section 275(4) of the Labour Code requires trade union leaders to have belonged to the occupation or trade for at least one year. The Committee requested the Government to make the legislation more flexible by allowing persons who formally worked in the occupation to stand for office or by lifting this requirement for a reasonable proportion of trade union officers. In its report for 2002, the Government stated that it was planning to amend this provision after consulting the National Labour Council.

The Committee trusts that the revision of the Labour Code will fully take into account the abovementioned principles.

2. The right to strike. In its previous comments the Committee raised the matter of the series of compulsory procedures to be followed before taking strike action (sections 191 to 210 of the Labour Code), which appears to authorize the Minister of Labour to prevent all strikes. The Committee noted in this connection the ICFTU’s assertion that there are procedural requirements that empower the authorities to determine whether or not a strike is lawful. In practice, this has enabled the authorities to prevent or end strikes on the grounds that they were detrimental to the national economy and sought to support the "enemies" of the Government. Lastly, in the course of the last three years several trade union leaders have been imprisoned for calling strikes. The Committee notes that the Government has not responded to the ICFTU’s comments. Recalling that the right to strike is one of the essential means available to trade unions of furthering and defending the interests of their members, the Committee again requests the Government to respond to the ICFTU’s comments on this matter and to provide the draft text implementing the Labour Code with regard to procedures for the exercise of the right to strike to which it referred in its previous reports, so that the Committee may ascertain whether it is consistent with the provisions of the Convention.

The Committee further noted that, under section 213 of the Labour Code, strikes are lawful when they are called with the approval of a simple majority of the employees of the workplace or enterprise, whereas according to the Government, in practice, no vote has been required and a consensus has sufficed. The Committee recalled that, when voting on strikes, the ballot method, quorum and majority required should not be such that the exercise of the right to strike becomes difficult in practice. If a member State sees fit to establish in its legislation provisions requiring a vote by workers before a strike can be held, it should ensure that account is taken only of the votes cast and that the required majority and quorum are fixed at a reasonable level (see General Survey on freedom of association and collective bargaining, 1994, paragraph 170). The Committee accordingly asks the Government once again to indicate in its next report the measures taken or envisaged to amend section 213 in the light of the comments recalled above.

The Committee requests the Government to report on progress made in revising the Labour Code and to provide a copy of the new text as soon as it is adopted.

Lastly, the Committee noted the ICFTU’s assertion that the Government is preventing trade unions from choosing their representatives on national tripartite bodies, as a result of which the work of the National Employment Council has come to a standstill. The Committee notes the Government’s statement that it raises no obstacles to trade union elections and that it has observed that, on the contrary, most trade unions fail in their statutory obligation to renew the membership of their bodies periodically. The Committee takes note of this information and hopes that the Government will take the necessary steps to ensure that trade union organizations may exercise in full the right to organize their activities freely, including the right to choose their representatives on national tripartite bodies without interference from the public authorities.

In addition, the Committee is addressing certain other matters in a request directly to the Government.