Rapport intérimaire - Rapport No. 404, Octobre 2023

1. 362. The complaint is contained in a communication dated 2 March 2021, submitted by the International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers Associations (IUF). The complainant provided additional information in communications dated 9 November 2021, 18 February 2022, 3 February and 18 August 2023.
2. 363. The Government sent partial observations in a communication dated 20 August 2021.
3. 364. Guinea 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 the Workers' Representatives Convention, 1971 (No. 135).

A. The complainant’s allegations

1. 365. In its communication dated 2 March 2021, the complainant alleges that, since at least March 2019, the employees of the Marriott Sheraton Grand Conakry Hotel (hereinafter “the hotel”) have faced numerous obstacles to the exercise of the right to freedom of association and collective bargaining and denounces the Government's inability to remedy the situation.
2. 366. The complainant alleges that, on 15 March 2019, the IUF-affiliated Federation of Hotel, Tourism, Restaurant and Catering and Allied Workers Associations of the National Organization of Free Trade Unions of Guinea (FHTRC-ONSLG) formally requested the hotel's management to begin the trade union electoral process pursuant to national legislation. The trade union organization indicates that, for the next eight months, although the FHTRC-ONSLG made every effort to move the electoral process forward, supported by a petition with more than 150 signatures out of 400 employees calling for elections to be held, it was not until 11 February 2020 that management finally organized the elections. According to the complainant, the trade union won the elections by a large margin, with 72 per cent of the votes cast for the list of trade union officials.
3. 367. The organization alleges that, in the period leading up to the elections, the workers faced increasing anti-union hostility from management and that two employees, Mr Alhassane Sylla and Mr Mory Soumaoro, were dismissed in November 2019 on minor disciplinary grounds shortly after they had expressed support for the trade union, such dismissals in fact being meant to intimidate other employees who might follow suit. Mr Sylla was also reportedly imprisoned by the local police for three days, on the pretext that he had left the hotel with prepared food, when it was in fact his own meal that he had been unable to eat during his break.
4. 368. The complainant alleges that, in March 2020, the newly established trade union wished to enter into negotiations with management on staff health and safety conditions, access to medical care and unpaid overtime, but that management refused, despite the urgency in the context of the COVID-19 pandemic.
5. 369. The complainant alleges that another trade union member, Mr Mohammed Sampil, was disciplined and then dismissed in September 2020 for accidentally breaking a flowerpot and that management refused to allow him to be represented by the union in the disciplinary proceedings against him.
6. 370. The complainant alleges that, in the same period, management convened an initial meeting with Mr Amadou Diallo, secretary-general of the trade union, Mr Alhassane Diallo, deputy secretary-general, and Ms Maminata Camara, a member of the trade union committee, to discuss issues of common concern and that, following the meeting, management suspended Mr Amadou Diallo and Mr Alhassane Diallo without pay and subsequently dismissed them. The complainant indicates that, in response, the trade union presented a petition to management, signed by more than 100 workers, seeking their reinstatement. According to the complainant, the Ministry of Labour held a meeting with management and employees to discuss the dismissals and the allegation of discrimination against union officials, but took no further action on the dismissals. Ms Maminata Camara was reportedly prevented from testifying before the labour inspector by order of the hotel's deputy general manager. The complainant states that it alerted the International Finance Corporation (IFC), in its capacity as the main investor in the hotel development project, about the discriminatory dismissals of union officials, but that the IFC replied that it could not take any action because "the disciplinary measures applied in this case are provided for in the hotel's internal regulations for this type of conduct and the hotel's internal regulations have been officially approved by the labour inspectorate and the Guinean Ministry of Labour”.
7. 371. The complainant alleges that the trade union presented a further petition to management, containing more than 100 photos of unionized employees, to demand the reinstatement of their union leaders, but that management subsequently used this petition to threaten workers during individual interviews or in front of a “captive audience” in February 2021. The complainant denounces an "escalation of anti-union animosity and hostility in the workplace", with an increase in the number of surveillance cameras and the monitoring of employees throughout the hotel, and regular visits by plain-clothed police officers and the Federal Minister for Security.
8. 372. The complainant alleges that, on 10 December 2020, the trade union's noticeboard and office within the hotel was vandalized. It claims that management had not informed the trade union of its intention to enter the trade union's premises, the latter not having the keys to the office, which are kept in security’s premises by order of the hotel management.
9. 373. In its communication dated 9 November 2021, the organization reiterates the lack of reaction from the public authorities to the worsening situation following the dismissal of the two union officials.
10. 374. In its communication dated 18 February 2022, the complainant alleges that the hotel's employees had set 22 October 2021 as the deadline for reaching an agreement with management on the reinstatement of their elected representatives, general secretary Amadou Diallo and deputy general secretary Alhassane Diallo. As their petition, signed by almost all of the 210 or so employees under contract, went unanswered, the union issued a call for strike action for 26 October 2021.
11. 375. The organization alleges that the call for strike action led to intimidation and threats of retaliation by management. According to the organization, the director of human resources took employees on fixed-term contracts aside individually, telling them that their contracts would not be renewed if they went on strike. A representative of the owner reportedly questioned the union representatives about the call for strike action and when one of the representatives asked, "are you trying to intimidate us?" the representative confirmed this, saying, "the authorities are on our side".
12. 376. According to the complainant, management unlawfully abused its disciplinary power over employees in order to increase pressure on the strikers and to take retaliatory action against them; thus, shortly after the call for strike action, management hired trainees and temporary maintenance workers to work at the hotel, so as to have a pool of potential replacement employees; and, in order to intimidate workers who were considering going on strike, management hired 30 additional security guards at the hotel. The complainant alleges that management also announced a general wage increase of approximately US$50 per month, an increase of 25 per cent, reserved for non-strikers. In addition, the hotel director allegedly threatened to prevent striking employees from benefiting from a low-interest loan programme.
13. 377. In its communication dated 3 February 2023, the complainant reports that the hotel management has continued to breach its domestic and international legal obligations towards its employees, including by dismissing four of the six trade union representatives remaining in the hotel, without prior authorization from the labour inspectorate, in violation of the provisions of the Labour Code. According to the organization, despite its efforts, the Government has failed to ensure that the hotel management fulfils its obligations towards its employees. The IFC, which financed the construction and operation of the hotel, also failed to impose specific penalties on its client, despite the requirements of the applicable social performance standards. Noting the lack of consequences incurred by the hotel management for its rights’ violations, other employers in the Guinean hotel sector reportedly even began to use the same illegal tactics.
14. 378. In its communication dated 18 August 2023, the complainant reports that, on 31 March 2023, the labour court of Guinea ruled in favour of the hotel's two union officials, Mr Amadou Diallo and Mr Alhassane Diallo, on the grounds that their dismissal was unlawful and unfair and that it formed part of an anti-union campaign conducted by the hotel's management. The organization states that the court ordered the employer to pay damages of 78,083,190 Guinean francs (US$9,081) to Mr Alhassane Diallo and 55,510,000 Guinean francs (US$6,414) to Mr Amadou Diallo, without ordering their reinstatement, and that the employer has appealed the ruling. A copy of the ruling is attached to the communication.
15. 379. Lastly, the complainant provides further examples to support its earlier allegations that infringements of trade union freedom, particularly with regard to the holding of trade union elections, were widespread in the Guinean hotel industry.

B. The Government’s reply

1. 380. In its communication of 20 August 2021, the Government indicates that, despite the delay in holding the elections planned for establishing a trade union within the hotel, the elections in question were held on 11 February 2020, thanks to the active involvement of the IFC and the general labour inspectorate.
2. 381. With regard to the issue of the dismissal of Mr Alhassane Sylla and Mr Mory Soumaoro, the Government states that there is no plausible evidence in the file to establish a causal link between their dismissal and their trade union activities. The Government indicates that, after verification, the persons concerned were dismissed for disciplinary misconduct, which they themselves acknowledged, and that they also did not have the status of trade union members, as at the time of the events in November 2019 the hotel's trade union had not yet been formed.
3. 382. The Government states that the general labour inspectorate has not been informed of any acts of discrimination by the hotel against trade union officials on the grounds that they had submitted trade union demands to their general management.
4. 383. As for Mr Sampil’s dismissal, the Government denies the allegations, namely that the person concerned was not a member of the trade union, that his dismissal was for personal misconduct and that he was entitled to assistance, as stated in the letter summoning him to the initial interview dated 28 August 2020.
5. 384. Concerning the dismissal of Mr Amadou Diallo and Mr Alhassane Diallo, who were official representatives, the Government indicates that, in view of the trade union protection enjoyed by the two representatives, the hotel management was obliged, in accordance with the provisions of sections 332.2 et seq. of the Labour Code, to request the authorization of the local labour inspector, which it did. The Conakry local labour inspectorate found independently that these employees were guilty of serious misconduct. The Conakry regional labour inspector responded favourably to the hotel's request, while opening up the possibility of an amicable settlement in order to safeguard the interests of these two employees. The Government points out that the available administrative and judicial remedies were not used (sections 523.1 et seq. of the Labour Code).

C. The Committee’s conclusions

1. 385. The Committee notes that this case mainly concerns anti-union discriminatory acts and harassment by the management of a hotel, targeting both the officials of the newly established union and the workers who had expressed their support for the union. The complainant also denounces the Government’s failure to ensure respect for the right to freedom of association and collective bargaining in this case.
2. 386. The Committee takes note of allegations that, including in the months leading up to the trade union elections in February 2020, workers faced increasing anti-union hostility by management. The Committee notes in particular that two employees, Mr Alhassane Sylla and Mr Mory Soumaoro, were dismissed in November 2019 shortly after expressing their support for the trade union and that, according to the complainant, such dismissals were in fact meant to intimidate other employees who might follow suit.
3. 387. The Committee also takes note of the allegations of unfair dismissal, which this time took place after the February 2020 trade union elections, concerning Mr Amadou Diallo and Mr Alhassane Diallo, general secretary and deputy general secretary respectively. It is alleged that they were dismissed following a meeting with hotel management in which they were participating as part of their legitimate trade union activities. The Committee notes that, according to the complainant, management had taken retaliatory action against the workers who had expressed their support for the union officials, in particular through petitions and a call for strike action in October 2021 with a view to securing their reinstatement. This is said to have led to an "escalation of anti-union animosity and hostility in the workplace", with an increase in the number of surveillance cameras and the monitoring of employees throughout the hotel, and regular visits by plain-clothed police officers and the Federal Minister for Security.
4. 388. The Committee notes that the Government, in its communication dated 20 August 2021, essentially denies the allegations. The Committee notes that the Government merely states that: (i) in the case of the dismissal of Mr Alhassane Sylla and Mr Mory Soumaoro, there is no plausible evidence in the file to establish a causal link between their dismissal and their trade union activities, especially as at the time of the events, in November 2019, the hotel's trade union had not yet been formed; and (ii) in the case of the dismissal of Mr Amadou Diallo and Mr Alhassane Diallo, official representatives of the hotel's trade union, the Conakry regional labour inspectorate found independently that these employees were guilty of serious misconduct and that the employees concerned did not appeal against the decision.
5. 389. However, on the basis of additional information provided by the complainant on 18 August 2023, the Committee notes that on 31 March 2023 the labour court of Guinea ruled in favour of the hotel's two union officials, Mr Amadou Diallo and Mr Alhassane Diallo – a copy of which has been provided – to the effect that the dismissal ordered against them was "regular in form, but unfair and lacking in any real and serious grounds". The Committee notes that the court found "simple or minor misconduct, characterized by the fact that they had engaged in a reciprocal shouting match with their hierarchical superior", and ordered the employer to pay damages to the parties concerned, while noting that "this simple or minor misconduct is not so serious as to make it impossible for them to remain with the enterprise".
6. 390. Noting the allegations that workers were repressed for supporting the establishment of a trade union and for seeking to organize elections, in order to dissuade other workers from doing the same, the Committee wishes first of all to recall that 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 Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 1098].
7. 391. With particular reference to the allegations of unfair dismissal brought before it, the Committee recalls that anti-union discrimination is one of the most serious violations of freedom of association, as it may jeopardize the very existence of trade unions. No person should be dismissed or prejudiced in employment by reason of trade union membership or legitimate trade union activities, and it is important to forbid and penalize in practice all acts of anti-union discrimination in respect of employment. The Committee recalls, further, that no one should be penalized for carrying out or attempting to carry out a legitimate strike [see Compilation, paras 1072, 1075 and 953].
8. 392. Noting that the employer has appealed against the labour court of Guinea’s ruling of 31 March 2023 in favour of the hotel's trade union officials, Mr Amadou Diallo and Mr Alhassane Diallo, the Committee requests the Government to provide information on the outcome of the proceedings and to inform it of the court of appeal’s ruling once it has been handed down. The Committee recalls in this regard that one of the fundamental principles of freedom of association is that workers should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment, such as dismissal, demotion, transfer or other prejudicial measures. This protection is particularly desirable in the case of trade union officials because, in order to be able to perform their trade union duties in full independence, they should have a guarantee that they will not be prejudiced on account of the mandate which they hold from their trade unions. The Committee has considered that the guarantee of such protection in the case of trade union officials is also necessary in order to ensure that effect is given to the fundamental principle that workers’ organizations shall have the right to elect their representatives in full freedom [see Compilation, para. 1117]. The Committee recalls, further, in reference to the above-mentioned labour court’s ruling, that, in certain cases of dismissals in which judicial proceedings were ongoing, if the decision concludes that there have been acts of anti-union discrimination, the Committee has requested the reinstatement of the workers concerned as a priority solution [see Compilation, para. 1171].
9. 393. With regard to the allegations concerning the dismissal of Mr Alhassane Sylla and Mr Mory Soumaoro, in November 2019, on minor disciplinary grounds shortly after they had expressed support for the trade union, the Committee notes that, according to the complainant, such dismissals were meant to intimidate other employees who might follow suit and that these dismissals took place in the run-up to the elections. The Committee wishes to emphasize that the fact that the persons concerned did not at the time enjoy formal trade union status does not preclude ruling out any act of harassment against them, contrary to what the Government seems to suggest. The Committee requests the Government to conduct an independent investigation into the conditions of their dismissal. The Committee also requests the Government, as well as the complainant, to provide information on any legal proceedings initiated in this regard.
10. 394. With regard to the allegations concerning Mr Sampil's dismissal in September 2020, on minor grounds (broken flowerpot), the Committee, while noting the contradictory information brought to its attention by the parties as to whether or not he was a member of the trade union and as to the applicable procedure, observes that it appears from a reading of the above-mentioned labour court ruling of 31 March 2023 that the labour court, in a ruling dated 19 July 2021, ordered the employer to pay compensation for unfair dismissal. The Committee requests the Government and the complainant to provide information on Mr Sampil's situation and to indicate whether an appeal has been lodged against the labour court's ruling of 19 July 2021 concerning him.
11. 395. With regard to the allegations that the hotel management dismissed four of the six trade union representatives remaining in the hotel, without prior authorization from the labour inspectorate, the Committee, while recalling that, in cases of anti-union dismissals, newly established enterprise level unions are likely to suffer adverse consequences threatening their very existence, if their entire leadership and a large part of their membership is dismissed [see Compilation, para. 1107], requests the complainant to provide detailed information on the situation of four of the trade union representatives in question and on any associated legal proceedings.
12. 396. Noting the allegations that Mr Alhassane Sylla was imprisoned by the local police for three days, on the pretext that he had left the hotel with prepared food, when it was in fact his own meal, the Committee recalls that the detention of trade union leaders or members for trade union activities or membership is contrary to the principles of freedom of association [see Compilation, para. 120]. The Committee requests the Government to give all appropriate instructions to ensure that the police are not used as an instrument of intimidation or surveillance of trade union members and to keep it informed of the action taken or envisaged in this regard.
13. 397. The Committee also notes the complainant’s allegations that the hotel’s management unlawfully abused its disciplinary power over employees in order to increase pressure on the strikers. The Committee noted that: (i) management allegedly clearly threatened employees on fixed-term contracts that they would not renew their contracts if they went on strike; (ii) shortly after the call for strike action was issued in October 2021, management allegedly hired trainees and temporary maintenance workers to work at the hotel, so as to have a pool of potential replacement employees, and, in order to intimidate workers who were considering going on strike, it allegedly hired 30 additional security guards at the hotel; and (iii) management also allegedly announced a general wage increase of approximately US$50 per month, an increase of 25 per cent, reserved for non-strikers, and threatened to prevent striking employees from benefiting from a low-interest loan programme. While expressing regret that the Government fails to provide any replies on these points, the Committee recalls, on the one hand, that fixed-term contracts should not be used deliberately for anti-union purposes and, on the other, that, concerning measures applied to compensate workers who do not participate in a strike by bonuses, the Committee considers that such discriminatory practices constitute a major obstacle to the right of trade unionists to organize their activities [see Compilation, paras 1096 and 976].
14. 398. Lastly, noting the allegations that on 10 December 2020 the trade union's noticeboard and office within the hotel had been vandalized and that management had not informed the trade union of its intention to enter the trade union's premises, the latter not having the keys to the office, which are kept in security’s premises by order of the hotel management, the Committee, noting once again the Government's failure to reply on this issue, recalls that the inviolability of trade union premises and property is a civil liberty which is essential to the exercise of trade union rights [see Compilation, para. 276].
15. 399. Noting with concern the complainant’s overarching allegations that the Government’s failure to ensure effective protection of trade union rights, not only in the hotel in question, but also in numerous establishments in the hotel sector, the Committee recalls that the ultimate responsibility for ensuring respect for the principles of freedom of association lies with the Government [see Compilation, para. 46] and that the basic regulations that exist in the national legislation prohibiting acts of anti-union discrimination are inadequate when they are not accompanied by procedures to ensure that effective protection against such acts is guaranteed [see Compilation, para. 1140]. In view of the above, the Committee requests the Government to take all necessary steps, in consultation with the social partners concerned, to ensure that protection of trade union rights and protection against anti-union discrimination, in particular in the hotel sector, are fully guaranteed both in law and in practice.