Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 340, Mars 2006

909. The complaint is contained in a communication dated 23 May 2005 presented by the Trade Union of Workers of Equatorial Guinea (UST), the Teachers’ Trade Union Association (ASD) and the Agricultural Workers’ Organization (OTC).

1. 910. The International Confederation of Free Trade Unions (ICFTU) associated itself with the complaint in a communication dated 1 July 2005.
2. 911. The Government sent its observations in a communication dated 2 September 2005.
3. 912. Equatorial 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. 913. In their communication dated 23 May 2005, the Trade Union of Workers of Equatorial Guinea (UST), the Teachers’ Trade Union Association (ASD) and the Agricultural Workers’ Organization (OTC) allege that on 30 July 2004 the Government refused to grant the request for legal recognition made by the ASD and the OTC on 15 June 2004, in accordance with section 6 of Act No. 12/1992 on trade unions and collective labour relations. In 1998, through the then Ministry of Labour and Social Security, the public administration had already refused to grant the ASD legal recognition, arguing that Act No. 12/1992 did not allow public officials to unionize.
2. 914. The complainants state that, according to the Government, the by-laws of the trade union organizations did not comply with sections 12, 19, 20 and 21 of Act No. 12/1992 on trade unions and collective labour relations but without explaining the grounds. The trade union organizations submitted new requests for legalization on 24 August 2004 which fully met the provisions of sections 12, 19, 20 and 21 mentioned above. However, these requests were refused on 27 August of the same year for failure to comply with section 11 of Act No. 12/1992 which stipulates that founding documents must be drawn up in a notarial certificate.
3. 915. The ASD requested that its file be returned so that it could take the necessary steps with the notary. However, the notary verbally refused to issue the notarial certificate and stated that trade unions did not exist in Equatorial Guinea.
4. B. The Government’s reply
5. 916. In its communication of 2 September 2005, the Government states that, with regard to the ASD, the organization requested recognition and legalization, but after having examined the request, the Ministry of Labour observed that the presented by-laws did not comply with sections 12, 19, 20 and 21 of Act No. 12/1992 on trade unions and collective labour relations, and were therefore returned on 30 July 2004 so that they could be redrafted accordingly.
6. 917. On 24 August, it resubmitted its file to the Ministry, which this time observed that the request did not in comply with section 11 of the Act mentioned above which stipulates that the founding document must be notarially attested. In order to rectify this, the trade union organization asked for the file containing its request to be returned, as it subsequently was on 20 September 2004.
7. 918. With regard to the OTC, the Government states that on 27 May 2004 the organization requested recognition, but as with the previous case, the Ministry observed that the request did not comply with sections 12, 19, 20 and 21 of Act No. 12/1992. On 30 July 2004, the by-laws were returned so that they could be redrafted accordingly. On 13 August 2004, the trade union organization submitted a new request for recognition, which was refused again on 13 September 2004 for failure to meet the requirements of section 11 of Act No. 12/1992. Lastly, the Government states that the failure of the complainants to meet legal requirements illustrates their lack of genuine interest in gaining recognition.

C. The Committee’s conclusions

1. 919. The Committee notes that this case concerns the repeated refusal to register the Teachers’ Trade Union Association (ASD) and the Agricultural Workers’ Organization (OTC). The Committee observes that the ASD was initially refused registration in 1998 because it was a trade union organization for public servants. Indeed, the Committee observes that section 6 of Act No. 12/1992 stipulates that “the unionization of public administration officials will be governed by a specific law”, which still has not been approved. The Committee notes that in July 2004, following a new request for registration made by each of the trade union organizations, the Ministry of Labour rejected registration again for failure to meet the requirements of sections 12, 19, 20 and 21 of Act No. 12/1992 on trade unions and collective labour relations which refer to the content of by-laws and the bodies of trade unions. The Committee notes that, following a new request, which duly complied with the sections mentioned above, recognition was refused again for failure to meet section 11 of Act No. 12/1992 which, according to the Ministry of Labour, states that by-laws must be drawn up in a notarial certificate.
2. 920. The Committee also notes that, according to the complainants, when the ASD contacted the notary with a view to obtaining a certified document containing the by-laws, he refused and stated that trade unions did not exist in Equatorial Guinea.
3. 921. The Committee notes that, according to the Government, the failure of the trade union organizations to meet legal requirements illustrates their lack of interest in actually doing so.
4. 922. First, the Committee recalls that all public service employees (with the sole possible exception of the armed forces and the police, as indicated in Article 9 of Convention No. 87), should, like workers in the private sector, be able to establish organizations of their own choosing to further and defend the interests of their members [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 206]. In this regard, the Committee requests the Government to take the necessary measures to amend the legislation so as to guarantee that public officials’ organizations have the right to organize or to adopt, without delay, a specific law for this purpose, as prescribed by Act No. 12/1992.
5. 923. With regard to the refusal of the Ministry of Labour to register the trade union organizations because their by-laws were not drawn up in a notarial certificate, as required by the provisions of section 11 of Act No. 12/1992, and the statement of the public notary that trade unions did not exist in Equatorial Guinea and his refusal to issue the notarial certificate containing the by-laws, the Committee observes that it is actually section 10 of the Act which stipulates that, in order to legalize a trade union organization, the organization must submit a request to the Ministry of Labour and Social Development, along with a “certified copy of the founding document and the by-laws”. The Committee considers that the requirement of a notarial certificate should not lead to delays in the registration of trade unions, especially given that the law requires the submission of a certified copy, which could not only take the form of a notarial certificate, but could also be through certification by the legal authority or an administrative authority. Moreover, the notary’s refusal to issue a notarial certificate containing the by-laws of the trade union organization constitutes an infringement of the right of workers to establish or join the organization of their own choosing. In this regard, the Committee recalls that the formalities prescribed by law for the establishment of a trade union should not be applied in such a manner as to delay or prevent the establishment of trade union organizations. Any delay caused by the authorities in registering a trade union constitutes an infringement of Article 2 of Convention No. 87 [see Digest, op. cit., para. 251]. Consequently, the Committee requests the Government to conduct an investigation into the notary’s alleged refusal to issue a certificate containing the by-laws of the trade union and, should the allegations prove to be substantiated, to take measures to ensure that public notaries duly issue notarial certificates, in keeping with the requirements provided for by the law. The Committee also requests the Government to take measures for the expeditious recognition of the ASD and the OTC, and to it keep it informed in this regard.