Report in which the committee requests to be kept informed of development - Report No 359, March 2011

1. 706. The complaint is contained in a communication dated 29 December 2009 of the Trade Union Confederation of Workers of Mali (CSTM).
2. 707. The Government sent partial information in a communication dated 9 March 2010.
3. 708. Mali 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), the Workers’ Representatives Convention, 1971 (No. 135), as well as the Labour Relations (Public Service) Convention, 1978 (No. 151).

A. The complainant organization’s allegations

1. 709. In a communication dated 29 December 2009, the CSTM states that, since December 1997, the national trade union landscape has been made up of two trade union confederations, the National Union of Workers of Mali (UNTM) and the CSTM. The CSTM adds that, even though section 265 of the Labour Code (Act No. 92-020, of 23 September 1992) states that the Government must organize professional elections to determine the percentage of representativity of each trade union confederation, the State has not yet done so. The Economic, Social and Cultural Council was established under Title XIII of the national Constitution. Under Act No. 92-031, of 19 October 1992, concerning the organization and modalities of functioning of the body, the trade union component of the Council is made up of representatives of the most representative public and private sector workers’ trade union organizations.
2. 710. The complainant organization states that it requested to participate in the Economic, Social and Cultural Council at the time of its second term in 1999, in accordance with the Act governing its functioning and taking into account the lack of professional elections to designate the most representative organizations. However, the Government refused to nominate representatives of the CSTM to the Economic, Social and Cultural Council, either in 1999 for the second term (Decree No. 99-272 concerning the composition of the Council), or in 2004 for the third term of the Council (Decree No. 415/P-RM, of 23 September 2004).
3. 711. The complainant organization states that it lodged an appeal with the Supreme Court against the two government decisions of 1999 and 2004 and that, in both cases, the Instrument of Appointment in question was annulled. Thus, through Rulings No. 30 of 28 September 2000, and No. 76 of 15 August 2002, the Supreme Court annulled the Instrument of Appointment No. 99-272. Despite this development, in 2004, the Presidency of the Republic (together with the Government) drew up a list of the members of the Economic, Social and Cultural Council, yet again excluding the CSTM. The complainant organization again had recourse to the Supreme Court, and the latter yet again annulled the Instrument of Appointment (this time for 2004) through Ruling No. 135 of 16 August 2007.
4. 712. The complainant organization denounces the fact that, despite successive Supreme Court rulings, the Presidency of the Republic issued an Instrument of Appointment on 12 November 2009 for the fourth term of the Economic, Social and Cultural Council, again excluding the CSTM from its composition (Decree No. 09-608/P-RM). The CSTM adds that, despite the clarity of the laws and regulations governing tripartite institutions in Mali, the trade union is excluded from all of these bodies, in particular from the governing bodies of the National Social Welfare Institute, the National Employment Agency and the Vocational Training Support Fund, as well as the Higher Labour Council, the Higher Public Service Council and their joint committees.

B. The Government’s reply

1. 713. The Government submitted partial information in a communication dated 9 March 2010. It recognizes that the Supreme Court annulled instruments of appointment Nos 99-272 and 04-415 for ultra vires action and that, in Ruling No. 135 of 16 August 2007, the Supreme Court considered in particular that the equivocation regarding trade union pluralism and the denial of the right of each organization to have its say constitute ultra vires actions.
2. 714. However, in the Government’s view, the Supreme Court overestimated the representativity of the CSTM, which still has to be proved under the Labour Code. The Government adds that Act No. 92-031 of 19 October 1992, concerning the composition and operational modalities of the Economic, Social and Cultural Council, cannot be enforceable against it unless the representativity of the trade union organizations has previously been recognized in accordance with law.
3. 715. Furthermore, the Government recognizes that it did not make use of its prerogatives to designate the most representative organizations. However, it refers to major obstacles to the organization of professional elections which could help in sharing out seats on national consultation bodies such as the Economic, Social and Cultural Council. The first obstacle cited by the Government is the lack of an agreement between it and the social partners regarding funding of professional elections. The second obstacle concerns a disagreement between the trade union confederations as to the method of voting; the UNTM prefers a majority system, whereas the CSTM is in favour of the introduction of a representativity threshold. By way of a conclusion, the Government states its wish to promote dialogue in order to overcome any differences. It points to a workshop on trade union representativity, organized in December 2008 with the support of the ILO, and to the efforts of the Ministry of Labour, the Public Service and the Reform of the State to convince the social partners to participate in the elections under government-approved conditions.

C. The Committee’s conclusions

1. 716. The Committee notes that the present case concerns the repeated refusal by the Government to nominate the CSTM to the Economic, Social and Cultural Council, as well as to national tripartite consultation bodies in general.
2. 717. The Committee highlights the statement according to which, since 1997, the trade union landscape of Mali has consisted of two trade union confederations, the UNTM and the CSTM. The Committee further notes that the Labour Code states that the Government must organize professional elections in order to determine the percentage of representativity of each trade union confederation. However, to date, no such elections have been organized for reasons linked, according to the Government, to disagreements over funding of the electoral process and the voting method to be employed.
3. 718. The Committee notes that the CSTM states that it has been requesting to be represented on the Economic, Social and Cultural Council since 1999, the trade union component of which must, according to Act No. 92-031 of 19 October 1992, concerning its organization and operational modalities, be composed of the representatives of the most representative organizations of public and private sector workers. According to the CSTM, its request is legitimate given the lack of professional elections to designate the most representative organizations. The Committee notes that the Government refused to nominate representatives of the CSTM to the Economic, Social and Cultural Council, either in 1999 for the second term (Decree No. 99-272 concerning the composition of the Council), or in 2004 for the third term of the Council (Decree No. 415/P-RM of 23 September 2004).
4. 719. The Committee notes that, according to the information provided by the complainant organization and confirmed by the Government, the CSTM lodged an appeal with the Supreme Court against the two government decisions of 1999 and 2004 and that, in both cases, the trade union obtained the annulment of the Instrument of Appointment in question on the grounds of ultra vires action on the part of the authorities. Thus, through rulings No. 30 of 28 September 2000, and No. 76 of 15 August 2002, the Supreme Court annulled Instrument of Appointment No. 99-272. Furthermore, the Supreme Court annulled Decree No. 415/P-RM through Ruling No. 135 of 16 August 2007, which stated that the equivocation regarding trade union pluralism and the denial of the right of each organization to have its say constituted an ultra vires action.
5. 720. The Committee notes that: the complainant organization denounces the fact that, despite successive Supreme Court rulings, the Presidency of the Republic issued an Instrument of Appointment on 12 November 2009 for the fourth term of the Economic, Social and Cultural Council, again excluding the CSTM from its composition; in order to justify the Instrument of Appointment, the Government points to the fact that, when issuing its rulings, the Supreme Court presumed the representativity of the CSTM, which still has to be proved under the Labour Code; the Government furthermore recognizes that it has not made use of its prerogatives to designate the most representative organizations because it faces major obstacles concerning the organization of professional elections. According to the Government, there is no agreement between the Government and the social partners regarding the funding of professional elections. There is also disagreement between the trade union confederations as to the method of voting, with the UNTM preferring a majority system, while the CSTM is in favour of the introduction of a representativity threshold.
6. 721. The Committee first of all wishes to recall that it was not called upon to express an opinion as to the right of a particular organization to be invited to take part in joint or consultative bodies unless its exclusion constituted a clear case of discrimination affecting the principle of freedom of association. This is a matter to be determined by the Committee in the light of the facts of each given case. The fact that a trade union organization is debarred from membership of joint committees does not necessarily imply infringement of the trade union rights of that organization. However, for there to be no infringement, two conditions must be met: first, that the reason for which a union is debarred from participation in a joint committee must lie in its non-representative character, determined by objective criteria; second, that in spite of such non-participation, the other rights which it enjoys and the activities it can undertake in other fields must enable it effectively to further and defend the interests of its members within the meaning of Article 10 of Convention No. 87 [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, paras 1089 and 1091]. In the case in point, the Committee is particularly concerned by the Government’s statement concerning the need to prove the representativity of the CSTM (which would explain the trade union’s exclusion from the list of employee representatives on the Economic, Social and Cultural Council), while the Government also recognizes that there are difficulties in organizing professional elections in order to determine the level of representativity of the two national trade union confederations. In this regard, the Government’s attitude is somewhat less than restrained in that it has clearly, and without regard for any objective criteria, presumed the representativity of one trade union confederation to the detriment of another in order to decide unilaterally on the trade union representation within national consultation bodies. The Committee urges the Government to adopt a completely neutral position in the future in the absence of representativity determined according to objective criteria.
7. 722. The Committee reminds the Government that, in Ruling No. 135 of 16 August 2007, the Supreme Court clearly stated that any decision made by the authorities that did not take into account the prevailing situation of trade union pluralism in the country and the right of each trade union confederation to have its say was tainted by abuse of power. Accordingly, the Committee draws the Government’s attention to the fact that, in the interests of promoting open and constructive social dialogue, it might be desirable, rather than necessarily identifying one single organization with a view to granting it exclusive trade union representation, to ensure a place for a range of voices on the basis of objective and predefined criteria. The Committee recalls in this regard that it had to highlight the importance, for the preservation of a country’s social harmony, of regular consultations with employers’ and workers’ representatives; such consultations should involve the whole trade union movement, irrespective of the philosophical or political beliefs of its leaders [see Digest, op. cit., para. 1065].
8. 723. Consequently, in the interest of harmonious professional relations and in order to promote a plurality of views among representative organizations, the Committee requests the Government to amend Decree No. 09-608/P-RM of 12 November 2009, in order to include the CSTM on the list of representatives of public and private sector employees on the Economic, Social and Cultural Council, in accordance with the rulings of the Supreme Court.
9. 724. Furthermore, the Committee notes that the CSTM also denounces the fact that it has been excluded from all tripartite consultation bodies (despite the laws and regulations which govern them), in particular the governing bodies of the National Social Welfare Institute, the National Employment Agency, the Vocational Training Support Fund, as well as the Higher Labour Council and the Higher Public Service Council. Noting the lack of a reply from the Government in that regard, the Committee recalls that any decisions concerning the participation of workers organizations in a tripartite body should be taken in full consultation with all the trade unions whose representativity has been determined by objective criteria [see Digest, op. cit., para. 1090]. In the same spirit of dialogue mentioned above, the Committee requests the Government to take the necessary measures to allow the CSTM to participate in those tripartite consultation bodies with which it has an expressed interest.
10. 725. The Committee further notes the Government’s statement that it wishes to promote dialogue in order to resolve the disagreements regarding professional elections. The Government points to a workshop on trade union representativity organized in December 2008 with the support of the ILO and to the efforts of the Ministry of Labour, the Public Service and the Reform of the State to convince the social partners to participate in the elections under government-approved conditions. The Committee expects that the Government will organize as soon as possible the professional elections provided for in the Labour Code, taking into account the principles of freedom of association, and requests the Government to keep the Committee informed of the objective criteria employed, in consultation with the trade union organizations, to determine the representativity of trade unions. The Committee reminds the Government of the possibility to avail itself of further ILO technical assistance, if it so wishes.