Effect given to the recommendations of the committee and the Governing Body - Report No 318, November 1999

Effect given to the recommendations of the Committee and the Governing Body

1. 48. During its last examination of the case at its March 1999 session (see 313th Report, paras. 29-31), the Committee once again urged the Government to take all necessary measures in order to reinstate in their posts, if they so wished, all workers and staff delegates who were victims of anti-trade union discrimination following strike action at the Abidjan Ship Repair and Industrial Work Enterprise (CARENA). In addition, it requested the Government to resume negotiations with regard to the industrial dispute at the CARENA enterprise and to keep it informed of the decisions taken by the industrial advisory board which had been set up in this context. The Committee deplored the fact that the Government had provided no new information; it reiterated its conclusions according to which, in the case in point, the use of police forces constituted an infringement of the trade union rights of the workers concerned.
2. 49. In its response dated 26 May 1999, the Government again indicates that, given the legal provisions and regulations in force as well as the relevant practice concerning the management of industrial disputes, the strike action initiated by the free trade union federation "Dignité" was clearly illegal under the terms of article 82.3 of the Labour Code and that the Minister of Employment, Public Service and Social Welfare, the relevant competent authority, had notified the workers of the illegality of the strike and had informed them of the risks they were running. The Government "is indignant at the conclusions of the Committee on Freedom of Association, according to which 'the responsibility for declaring a strike illegal should lie with an independent body which has the confidence of the parties'; it also questions the conclusions which, in relation to the legal provisions in force, have no legal foundation and, beyond any doubt, constitute serious interference by the Committee on Freedom of Association, the role of which is not only to attend to the protection of fundamental freedoms, particularly freedom of association and the exercise of the right to strike, but also to ensure compliance by the social partners with the rules governing the Republic". Accordingly, in the Government's opinion, under no circumstances may the Committee on Freedom of Association allege that the ministry responsible for labour does not represent an independent body and, hence, that it does not have the confidence of the parties to the dispute. The Government considers that the Minister of Employment, Public Service and Social Welfare, as an administrative authority, constitutes an independent body. With regard to the alleged lack of confidence, the Government also questions the analysis presented by the Committee on Freedom of Association which has not deigned to consult the employer party to the dispute. The Government states that it is "entitled to expect from the Committee on Freedom of Association substantiated, coherent observations devoid of any sentimentalism and bias". It believes that it is only with this aim in view that the Committee will truly assist in making the parties to industrial relations aware of their responsibilities and, thereby, promote social dialogue. More specifically, the Government states that, contrary to the false allegations of Dignité, out of the 330 workers registered at the beginning of the strike on 5 March 1997, 138, including 14 staff delegates, were dismissed for dereliction of duty. The Government maintains that the figure of 300 dismissed workers, as advanced by Dignité and accepted without further inquiry by the Committee on Freedom of Association, is erroneous. In fact, out of the 330 workers on the CARENA payroll in March 1997, 245 were declared in dereliction of duty on 14 April 1997, 64 were not re-employed, 43 were reinstated, 138 including 14 staff delegates were still in dereliction of duty as of 6 March 1999 and the enterprise's workforce numbered 294 on the same date. With regard to the resumption of negotiations following the industrial dispute in CARENA, the Government indicates that three meetings of the industrial advisory board were held after the Committee on Freedom of Association presented its recommendations. These meetings took place on 17 February, 3 March and 20 May 1999. The social partners took opposing positions regarding the recommendation to reinstate the dismissed workers: the employers believe that the industrial advisory board is not empowered to decide that the workers should be reinstated; they decided that it would be appropriate for the workers who considered that their rights had been infringed to present their claims to the relevant judicial bodies; on the other hand, the workers' organizations believe that the Government should exercise its power to secure the reinstatement of the dismissed workers. Regarding the recommendation to pursue negotiations, the industrial advisory board proposed that the CARENA issue be reopened. A joint technical committee made up of an equal number of worker and employer representatives was set up. It was to commence work after the appointment of the various representatives on 3 June 1999. The Government recalls that the relevant regulations, in particular Decree No. 65-131 of 2 April 1965, establish this body's terms of reference, its structure and methods of work and that the industrial advisory board is not entitled to order an employer to reinstate dismissed workers. It repeats that workers who consider that their rights have been infringed may lodge a complaint with the tribunals (article 81.7 to 81.31 of the Labour Code). As regards interventions by the police during the protest march of 4 February 1998, the Government vigorously objects to the reservations expressed by the Committee on Freedom of Association regarding the information provided. The Government once again declares that Dignité had not obtained prior authorization for the march, as required pursuant to Act No. 92-464 on the repression of certain forms of violence.
   • In its opinion, whereas trade union rights are recognized and applied, they must nevertheless be exercised without endangering public order. Finally, in the light of the action it has undertaken in favour of social dialogue and tripartite cooperation, the Government states that it cannot entertain groundless injunctions from the Committee on Freedom of Association.
3. 50. The Committee takes note of the Government's comments and observations to the effect that the Committee's conclusions constitute serious interference. The Committee notes that where national laws violate the principles of freedom of association, it has always considered it within its mandate to examine the laws, provide guidelines and offer the ILO's technical assistance to bring the laws into compliance with the principles of freedom of association, as set out in the Constitution of the ILO and the applicable Conventions (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 8). Hence, the Committee once again reiterates its consistent jurisprudence according to which the decision to declare a strike illegal should lie with an independent body which has the confidence of the parties. The Committee stresses the importance of a spirit of dialogue and cooperation which should prevail in the resolution of industrial disputes. Consequently, the Committee trusts that all of the staff delegates affiliated to Dignité and all of the workers dismissed due to participating in peaceful strikes in connection with the industrial dispute in the CARENA enterprise will be reinstated in their posts if they so wish. It requests the Government to keep it informed in this respect.