Rapport intérimaire - Rapport No. 376, Octobre 2015

1. 928. The complaint from 16 trade unions, namely the Congolese Labour Confederation (CCT), the Union Espoir (ESPOIR), the National Union of Teachers in Registered Schools (SYNECAT), the Union of State Agents and Civil Servants (SYAPE), the National Trade Union for the Mobilization of Agents and Civil Servants of the Congolese State (SYNAMAFEC), the Union of Workers – State Agents and Civil Servants (UTAFE), the National Union of Agents and Civil Servants in the Public Sector (SYNAFAR), the General Trade Union of the State and Para-State Finance Administration, and Banks (SYGEMIFIN), the Trade Union of Congo Workers (SYNTRACO), the State Civil Servants and Public Agents Trade Union (SYFAP), and the National Board of State Agents and Civil Servants (DINAFET) is attached to the communications dated 15 April 2014 and 6 February 2015.
2. 929. Since there has been no reply from the Government, the Committee has been obliged to postpone its examination of the case on two occasions. At its June 2015 meeting [see 375th Report, para. 8], the Committee issued an urgent appeal to the Government indicating that, in accordance with the procedural rules set out in paragraph 17 of its 127th Report, approved by the Governing Body, it could present a report on the substance of the case at its next meeting, even if the requested information or observations had not been received in due time. To date, the Government has not sent any information.
3. 930. The Democratic Republic of the Congo 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 Workers’ Representatives Convention, 1971 (No. 135).

A. The complainants’ allegations

1. 931. In their communications dated 15 April 2014 and 6 February 2015, the complainants denounce the interference, with impunity, of the Government as employer, in trade union activities, particularly intimidation and disciplinary measures against trade union officials, and the adoption of contentious regulations concerning the organization of trade union elections in the public administration aimed at the establishment of an inter-union association under the control of the Government as the sole representative.
2. 932. The complainants state that the trade unions active in the public administration fall into two inter-union associations: the national inter-union body for the public sector (INSP) and the independent trade unions of the public administration (SIAP). The Government and the two trade union associations in question signed a Memorandum of Understanding on 2 February 2011 on the decisions and recommendations of the joint Government–trade union commission for the reform of the public administration. In 2013, however, negotiations were blocked owing to disagreement over several issues (working conditions of staff and officials, readjustment of specific allowances for staff and officials of the Ministry, standardization of allowances for specific functions to the disadvantage of Ministry staff, etc.) in an atmosphere in which the trade unions present faced intimidation and trade union meetings were prohibited. The complainants denounce the fact that the Ministry of Public Service had issued several communications aimed at agents and officials, as well as trade unions, prohibiting trade union meetings in front of the Ministry, under penalty of sanctions, even though trade union elections were planned for the near future.
3. 933. According to the complainants, the Government intended to take advantage of the elections in the public administration to limit the freedom of association of state agents and civil servants and stifle the INSP and the SIAP activities by specifically supporting the trade unions under its control. To that end, throughout 2013, the Ministry of Public Service adopted, without consultation, a series of regulatory texts on trade union activities in the public administration, which restricted trade union action. Those texts include the decree of 8 March 2013 on the favourable opinion and registration of various trade unions in the public sector, the decree of 19 April 2013 on the provisional regulation of trade union activities in the public administration, the decree of 1 July 2013 supplementing the decree of 19 April 2013, and the decree of 1 July 2013 on the Electoral Code regarding trade union elections in the public administration.
4. 934. The complainants denounce in particular the decree of 1 July 2013, article 44 of which provides for the establishment, following trade union elections, of a national public administration inter-union association (INAP), whose members are appointed by the heads of the central and provincial services units. The complainants allege that in practice the texts adopted by the Ministry of Public Service were designed to place trade unions under the control of the Ministry in order to influence the appointment of the INAP members. The ultimate objective was to set up the INAP as the sole representative of the administration in collective bargaining and to stamp out the voice of the inter-union associations already established (note of 22 March 2014 from the Secretary-General responsible for the assets of general secretaries of the public administration and general directors of public services).
5. 935. The trade union elections in the public administration took place between August and September 2013, but only within central services and despite the complaints concerning irregularities lodged by the complainants on 2 and 19 August 2013 before the General Labour Inspectorate. The results of the elections were published through the decree of 24 October 2013. The INAP members were therefore appointed by the elected members of the central services who represent a minority in the public administration, all of which is in violation of the Electoral Code. Furthermore, only 23 of the 64 trade unions which won seats during the elections make up the new inter-union association, which is not therefore representative of the functions performed by all state employees, let alone their numbers.
6. 936. Furthermore, according to the complainants, the leaders of the INAP are neither state agents nor civil servants but rather members of the majority political party in power. The complainants express surprise at the fact that, when the INAP was established, the leaders were given special badges by the Minister for Public Service carrying his signature as employer. This demonstrates that the Ministry considers that these elected representatives are not under the authority of their respective trade unions. Furthermore, the complainants allege that the Ministry of Public Service has not provided the founding document of the INAP and also note that there is no document concerning handover arrangements between the INSP and the INAP as the representative association for collective bargaining.
7. 937. The complainants denounce the fact that, as a result of the restriction on trade union activities, the trade union officials, Mr Nkugi Masewu, Mr Ghislain Embusa Endole Yalele, President of the Espoir Union and the INSP General Rapporteur, and Mr Joseph Zagabe Muhimanyi, the UTAFE Secretary-General and the Deputy General Rapporteur of the SIAP, have been subjected to disciplinary proceedings and unfair suspensions by the Minister for Public Service on grounds of, inter alia, carrying out irregular trade union activities within the INSP in violation of the decrees adopted in 2013. The organizations state that the real reason for these suspensions is the fact that complaints were lodged with the Office of the Prime Minister concerning violations of freedom of association by the Ministry of Public Service. Mr Muhimanyi and Mr Endole Yalele, after having received three months’ suspension without pay in a disciplinary case, filed a complaint before the Court of Appeal for violation of the statutory period for a decision on a disciplinary case.
8. 938. Furthermore, the complainants denounce the intimidation and harassment of trade union members throughout 2013, particularly the abduction and detention of four trade union officials in the Lufungula national police camp on the grounds of inciting rebellion and disturbing public order on 12 and 13 July 2013. The officials involved were Mr Modeste Kayombo-Rashidi, CCT Secretary-General, spokesperson of the SIAP and rapporteur of the standing committee for follow-up on the decisions and recommendations of the joint Government–trade union commission; Mr Jean Bosco Puna Nsasa, SYNECAT Secretary General and deputy spokesperson of the SIAP; Mr Pierre Patrice Mwembo Lumumba, head of the SYNTRACO, and Mr Sébastien Dagobert Nkungi Masewu, SYAPE Secretary-General and rapporteur of the SIAP.
9. 939. The complainants add that Mr Jean Bosco Puna Nsasa was once again arrested on 26 November 2014, along with Mr Sylvain Kabuya Mwamba, a UTAFE member and public servant, during the SIAP general assembly in Golgotha square in front of the public service building (a usual meeting point for trade unions), a meeting which was prohibited by the Minister for Public Service.
10. 940. Lastly, according to the complainants, Mr Modeste Kayombo-Rashidi, CCT Secretary General, received death threats from the INAP Secretary, Mr Constant Lueteta. Mr Kayombo-Rashidi filed a complaint with the Kinshasa/Gombe prosecution authorities but it was not followed up.
11. 941. The complainants state that the administrative and judicial remedies they used to report and remedy the widespread trade union rights’ violations have been ignored. The remedies included: (i) a hierarchical appeal before the Prime Minister against the transitional regulation orders on trade union activities and other related regulations issued by the Minister for Public Service (14 July 2013); (ii) a complaint before the Attorney-General’s Office against the Minister for Public Service, particularly for the abduction of trade union members and violation of articles 56, 62, 64, 66 and 122 of the Constitution (14 July 2013, 14 February and 3 March 2014); (iii) a complaint against the trade union elections in the public service before the General Labour Inspectorate (2 and 19 August 2013); (iv) an application before the Supreme Court of Justice to annul the transitional regulation orders on trade union activities and other related regulations issued by the Minister for Public Service (25 February 2014); and (v) an administrative appeal before the Prime Minister relating to the restriction on freedom of association and the right to organize (13 April 2014).
12. 942. Overall, the complainants denounce the Government’s refusal to engage in sustainable social dialogue on the reform of the public administration provided for in the Memorandum of Understanding of 2 February 2011 freely signed by the Government and the trade unions of the public administration.

B. The Committee’s conclusions

1. 943. The Committee regrets that, despite the time that has elapsed since the presentation of the complaint, the Government has not replied to the complainants’ allegations, even though it has been requested several times to present its comments and observations on this case, including through an urgent appeal. The Committee urges the Government to be more cooperative in the future.
2. 944. Under these circumstances, and in accordance with the applicable procedural rules [see 127th Report, para. 17, approved by the Governing Body at its 184th Session], the Committee finds itself obliged to present a report on the substance of the case without being able to take account of the information which it had hoped to receive from the Government.
3. 945. The Committee recalls that the purpose of the whole procedure instituted by the International Labour Organization for the examination of allegations of violations of freedom of association is to promote respect for those rights in law and in practice. The Committee is confident that, while the procedure protects governments against unreasonable accusations, they must recognize the importance of formulating for objective examination, detailed replies concerning the allegations brought against them [see First Report of the Committee, para. 31].
4. 946. The Committee notes that this case concerns the interference, with impunity, of the Government as employer, in trade unions activities, particularly intimidation of, and disciplinary measures against, trade union officials, and the adoption of contentious regulations concerning the organization of trade union elections in the public administration aimed at the establishment of an inter-union association under the control of the Government as its sole representative.

(i) Interference by the authorities in trade union activities

1. 947. The Committee notes the indication that the trade unions active in the public administration fall into two inter-union associations: the INSP and the SIAP. The Government and the two trade union associations in question signed a Memorandum of Understanding on 2 February 2011 on the decisions and recommendations of the joint Government–trade union committee for the reform of the public administration. In 2013, however, negotiations were blocked owing to disagreement over several issues. According to the complainants, the atmosphere was also tense because of harassment of trade union members and the prohibition of trade union meetings ordered by the Ministry of Public Service (communications by the Ministry provided with the complaint).
2. 948. According to the complainants, the Government wanted to profit from the public administration elections in order to restrict the freedom of association of state agents and civil servants and stifle the INSP and the SIAP action by openly supporting trade unions under its control. To that end, throughout 2013, the Ministry of Public Service is alleged to have adopted, without consultation, a series of regulatory texts on trade union activities in public administration in order to restrict trade union action. Those texts included the decree of 8 March 2013 on the favourable opinion and registration of various public sector trade unions (according to the allegations, these trade unions were in fact controlled by the Government (copy of the decree was not provided with the complaint)), the decree of 19 April 2013 concerning the provisional regulations on trade union activities in the public administration, the decree of 1 July 2013 supplementing the decree of 19 April 2013 and the decree of 1 July 2013 concerning the Electoral Code on trade union elections in the public administration. The Committee recognizes the different nature of the professional relationships in the public sector due to the State playing the role of both the employer and the legislator, which could potentially cause difficulties. It is all the more important for the State to be aware of criticism that questions its subjectivity. One of the ways to avoid such criticism is to consult with employers’ and workers’ organizations during the drafting and implementation of legislation that affects their interests. The Committee also underlined that full and frank consultations should take place on all issues or drafts related to legislative provisions that affect trade union rights [see Digest of decisions of the Committee on Freedom of Association, fifth (revised) edition, 2006, para. 1079]. Where it is alleged that the aforementioned successive decrees of the Ministry of Public Service were adopted without consulting the relevant workers’ organizations despite having a fundamental impact on trade union activities and the exercise of collective bargaining in the public service, and in the absence of a reply from the Government, the Committee urges the Government to take without delay the necessary steps so that these texts are reviewed in consultation with the relevant workers’ organizations. The Committee requests the Government to keep it informed in this regard.
3. 949. The Committee observes that the complainants specifically denounce the decree of 1 July 2013 concerning the Electoral Code on trade union elections in the public administration, in which article 44 provides for the creation of a “national public administration inter-union association” (INAP) following trade union elections where “members are appointed by the presidents of the central and provincial services units”. The complainants allege that the Ministry of Public Service registered trade unions that were under its control through the decree of 8 March 2013 so that their elected members could influence the appointment of INAP members as provided for by the Electoral Code. The ultimate objective was to make the INAP the sole administrative representative for collective bargaining and to silence the existing inter-unions associations, which was made official by a note dated 22 March 2014 from the Secretary-General responsible for the assets of the general secretaries of the public administration and general directors of public services (copy of the note was provided with the complaint).
4. 950. The Committee recalls that the right to bargain freely with employers with respect to conditions of work constitutes an essential element of freedom of association, and trade unions should have the right, through collective bargaining or other lawful means, to seek to improve the living and working conditions of those they represent. Public authorities should refrain from any interference which would restrict this right or impede the lawful exercise thereof. Any such interference would appear to infringe the principle that workers’ and employers’ organizations should have the right to organize their activities and formulate their programmes. Furthermore, employers, including public authorities playing the role of employers, should recognize relevant representative workers’ organizations for collective bargaining purposes [see Digest, op. cit., paras 881 and 952]. The Committee believes that in order to maintain harmonious professional relationships in the public sector, respect of the principles of non-interference, the recognition of the most representative organizations and party autonomy in negotiations is required. The Committee therefore expresses concern that a provision, adopted without consulting the relevant organizations, imposes a unique structure of representation of workers’ interests for sharing and negotiating with the administration. Such a situation does not ensure peaceful professional relationships. Consequently, the Committee urges the Government, in addition to reviewing the 2013 decrees, to hold, without delay, consultations with all the relevant representative workers’ organizations, particularly the INSP and the SIAP, on ways of representing workers’ interests in terms of collective bargaining in public administration. The Committee requests the Government to keep it informed in this regard.
5. 951. Furthermore, noting the allegations of the complainants that the Ministry of Public Service did not provide the INAP’s founding document nor the handover document between the INSP and the INAP as representative association for collective bargaining, the Committee requests the Government to report its observations on this matter and provide the aforementioned documents.
6. 952. Finally, the Committee notes with concern allegations related to the disciplinary action aimed at the trade union leaders Mr Nkugi Masewu, Mr Ghislain Embusa Endole Yalele, President of the Espoir Union and the INSP General Rapporteur, and Mr Joseph Zagabe Muhimanyi, Secretary-General of the UTAFE trade union and SIAP Deputy General Rapporteur, for having taken part in unlawful trade union activities within the INSP, which is in violation of the 2013 decrees. In this regard, the Committee emphasizes that one of the fundamental principles of freedom of association is that workers must enjoy adequate protection against all acts of anti-union discrimination in respect of their employment – dismissal, transfer, demotion or other prejudicial measures – and that this protection is particularly desirable for trade union representatives, seeing as they must have a guarantee that they will not be subjected to prejudice on account of their trade union positions in order to be able to fulfil their trade union duties completely autonomously. The Committee believes that guaranteeing similar protection for trade union leaders is therefore necessary to ensure the respect of the fundamental principle according to which workers’ organizations have the right to freely elect their representatives [see Digest, op. cit., para. 799]. Besides other reasons which may warrant disciplinary sanctions being imposed, the Committee is concerned by the fact that the Ministry documents provided in the complaint state that one of the reasons for taking disciplinary action against Mr Ghislain Embusa Endole Yalele and Mr Joseph Zagabe Muhimanyi was simply that they were carrying out their trade union mandates. The Committee expects the Government to issue immediate instructions so that trade union members who are exercising their rightful trade union duties in public administration cannot be subjected to prejudice in the workplace and so that those responsible for these acts are punished. Furthermore, the Committee urges the Government to conduct investigations on the disciplinary action cases against the aforementioned trade union leaders in order to determine if they were punished for carrying out the lawful exercise of their trade union activities and, if appropriate, to award compensation that sufficiently discourages further unlawful disciplinary action. Furthermore, noting that Mr Muhimanyi and Mr Endole Yalele filed a complaint before the court of appeal for the violation of the legal time limit for concluding a disciplinary case, the Committee urges the Government to keep it informed of the result of this complaint.

(ii) Intimidation and harassment measures against trade union leaders

1. 953. The Committee notes with deep concern the allegations related to intimidation and harassment against several trade union leaders in 2013, particularly the arrests and detention of Mr Modeste Kayombo-Rashidi, CCT Secretary-General, SIAP spokesperson and rapporteur of the standing committee for follow-up on the decisions and recommendations of the joint Government–trade union commission; Mr Jean Bosco Puna Nsasa, SYNECAT Secretary-General and SIAP deputy spokesperson; Mr Pierre Patrice Mwembo Lumumba, head of SYNTRACO; and Mr Sébastien Dagobert Nkungi Masewu, SYAPE Secretary-General and SIAP rapporteur, at the Lufungula national police camp on the grounds of inciting rebellion and disturbing public order on 12 and 13 July 2013. The Committee notes with concern the indication that Mr Jean Bosco Puna Nsasa was arrested once again on 26 November 2014, along with Mr Sylvain Kabuya Mwamba, UTAFE member and public servant, during the SIAP general assembly held in Golgotha square in front of the public service building (a usual meeting point for trade unions), a meeting which was prohibited by the Minister for Public Service. The Committee, recalling that workers’ and employers’ rights can only be exercised in an environment free of violence, pressure or threats of any kind against organization leaders and members and that the Government must guarantee the respect of this principle [see Digest, op. cit., para. 44], urges the Government to conduct without delay an investigation into these serious allegations in order to determine the circumstances behind the arrests and detention of trade union leaders in July 2013 and November 2014, and to keep it informed of the findings and follow-up action.
2. 954. The Committee notes that Mr Modeste Kayombo-Rashidi, CCT Secretary-General, allegedly received death threats from Mr Constant Lueteta, INAP Secretary, and that the subsequent complaint that he filed with the Kinshasa/Gombe prosecution authorities was not followed up on. The Committee cannot understand why the authorities did not address the particularly serious complaints and urges the Government to keep it informed of the status of the complaint.
3. 955. Further noting with concern that the complainants denounce the fact that the administrative and judicial remedies they used to report and remedy the widespread violations of trade union rights have been ignored, the Committee underlines that excessively long administrative procedures can create an environment of insecurity and influence the exercise of trade union rights. The Committee requests the Government to inform it of the follow-up given to the following remedies: (i) the hierarchical appeal before the Prime Minister against the transitional regulation decrees on trade union activities and other related legislation issued by the Minister for Public Service (14 July 2013); (ii) a complaint before the Attorney-General’s Office against the Minister for Public Service, in particular the abduction of trade union members and violation of articles 56, 62, 64, 66 and 122 of the Constitution (14 July 2013, 14 February and 3 March 2014); (iii) a complaint against trade union elections in the public service before the General Labour Inspectorate (2 and 19 August 2013); (iv) an application before the Supreme Court of Justice to annul the transitional regulation decrees on trade union activities and other related legislation issued by the Minister for Public Service (25 February 2014); and (v) an administrative remedy before the Prime Minister in relation to the restriction of freedom of association and the right to organize (13 April 2014).