Informe provisional - Informe núm. 304, Junio 1996

1. 199. The complaint of the Trade Union Confederation of Workers of Congo (CSTC) against the Government of Congo was presented in a communication dated 19 August 1995. Since the Government has not replied, the Committee has had to postpone examination of this case on two occasions. At its March 1996 meeting (see 302nd Report, para. 9), the Committee sent the Government an urgent appeal informing it that, in accordance with the procedural rules set out in paragraph 17 of the 127th Report, approved by the Governing Body, it might present a report on the substance of the case to its next session, even if the observations or information requested from the Government had not been received in due time. To date the Government has not sent any observations.
2. 200. Congo 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 complainant's allegations

1. 201. In its communication of 19 August 1995 the CSTC states that the Government is violating trade union rights. Specifically, it makes the following allegations:
   • - a trade union meeting at the Pointe Noire labour exchange on 30 September 1993 was broken up in a blood bath by a detachment of the national police force, resulting in many people being wounded, including Mr. Ngakoya, an employee of the national railways, who has been permanently disabled;
   • - the president of the CSTC, Louis Gondou, has been expelled from Pointe Noire by the Public Prosecutor and banned from returning;
   • - the vice-president of the CSTC, Moïse Lobe, has been threatened with arrest;
   • - the CSTC was expelled from its premises and its property and documents ransacked in July 1995;
   • - trade union meetings scheduled at the Koulounda roundabout in the 5th district of Brazzaville on 27 July and 12 August 1995 were banned;
   • - the CSTC has been threatened with dissolution or suspension;
   • - private sector workers were dismissed following a general strike on 4 July 1995, specifically in the Galaxy and Caravelle companies;
   • - the exercise of the right to strike has been restricted: according to the complainant organization strikes were called as a result of the deterioration of the labour situation (between 1992 and 1994 the payment of wages and pensions was 14 months in arrears), the reduction in purchasing power following the devaluation of the franc and late payment of amounts due to workers in public enterprises that had been closed down. Since January 1995 the Government has adopted a repressive attitude towards strike action, which has taken the form of threatening declarations, repeated warnings that it would use the security forces to break up strikes, the placing of strikers on blacklists, the arbitrary posting of trade union leaders and militants, and a ruling of the Council of Ministers of 8 March 1995 authorizing the payment of salaries in all administrations only to officials who can show that they have actually been present at their place of work;
   • - an amendment to labour legislation as it relates to the exercise of the right to strike in the public service has been drafted. According to the complainant organization the draft amendment means that the settlement of collective disputes through legal channels would entail restricting, if not making altogether impossible, the exercise of the right to strike in public administrations. In addition to the ban on any strike action until conciliation procedures (lasting from 7 to 20 days) have been exhausted, the draft amendment would empower the Government to requisition all or part of the officials on strike and would make it possible to impose compulsory minimum service without negotiation with the social partners, a ban on strikes by certain officials other than the police (as provided for under article 31 of the Constitution), and a requirement that there be a quorum of 51 per cent of the workers to vote on the holding of a strike.
2. 202. The complainant organization accuses the Government of violating freedom of association and Convention No. 87. It protests strongly against these practices and calls for the Government to respect freedom of association, the right to strike and the protection of trade union property and requests that a direct contacts procedure be initiated and observers sent by the ILO to ensure the lawfulness of the forthcoming elections of staff representatives.

B. The Committee's conclusions

1. 203. The Committee regrets that, despite the considerable time that has elapsed since the complaint was presented and given the seriousness of the allegations, the Government has failed to respond to any of the allegations of the complainant organization, although it was invited on several occasions, and was even sent an urgent appeal, to send its comments and observations on the case.
2. 204. That being so, and in accordance with the relevant procedural rule (see para. 17 of its 127th Report, approved by the Governing Body at its 184th Session), the Committee finds itself obliged to submit a report on the substance of the case without being able to take into account the information that it hoped to receive from the Government.
3. 205. The Committee reminds the Government that the purpose of the whole procedure instituted by the International Labour Organization to examine alleged violations of freedom of association is to promote respect for trade union rights in law and in fact. The Committee is confident that, if it protects governments against unreasonable accusations, governments on their side will recognize the importance for the protection of their own good name of formulating for objective examination detailed factual replies to such detailed factual charges as may be put forward. (See the Committee's First Report, para. 31.)
4. 206. The Committee notes that the allegations in this case refer to anti-union intimidation, the expulsion of trade union leaders, the banning of trade union meetings and restrictions on the right to strike.
5. 207. With regard to the allegation that a trade union meeting held at the labour exchange was broken up in a blood bath by a detachment of the national police of Pointe Noire on 30 September 1993, with the result that several people were injured including an employee of the national railways, Mr. Ngakoya, who has been permanently disabled, the Committee deeply regrets that the Government has made no comments or observations on this matter. The Committee recalls, in general terms, that it has always stressed that a genuinely free and independent trade union movement cannot develop in a climate of violence and uncertainty. In cases in which the dispersal of public meetings by the police has involved loss of life or serious injury, the Committee has attached special importance to the circumstances being fully investigated immediately through an independent inquiry and to a regular legal procedure being followed to determine the justification for the action taken by the police and to determine responsibilities. (See Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 48 and 52.) The Committee therefore calls on the Government to arrange without delay for an impartial and independent inquiry to clarify the facts and avoid the repetition of such acts, and to keep it informed of the findings of the inquiry.
6. 208. With regard to the anti-trade union intimidation and alleged expulsion of the president of the CSTC, Mr. Louis Gondou, from Pointe Noire by the Public Prosecutor and the ban on his returning, together with the threats to arrest the vice-president of the CSTC, Mr. Moïse Lobe, the Committee deeply regrets that the Government has made no comment on this matter. The Committee has noted the documentation sent in support of the complaint, and specifically the text of circular No. 225-C-95 of 23 March 1995 from the Public Prosecutor of the High Court of Pointe Noire, expelling Mr. Gondou from Pointe Noire and banning him from returning to the town until further notice. The grounds for this measure refer to the making of untrue declarations liable to cause a serious disruption of law and order and to a note dated 20 March and signed by Mr. Gondou and Mr. Sabou.
7. 209. The Committee has also noted the complainant organization's explanation that the information note of 20 March referred to by the Public Prosecutor had been examined by the prefect in the presence of the regional director of the national police. The prefect considered that it could help to calm the social unrest (and not that it was intended to endanger law and order, as the Public Prosecutor states); hence the trade union delegation's surprise when the Public Prosecutor used this information note as grounds for his expulsion and banning order which the complainant organization claims does not offer appropriate legal guarantees.
8. 210. When it has had occasion to examine allegations relating to the use of repressive measures as a result of the exercise by trade union leaders of their freedom of opinion and expression, the Committee has on several occasions stated that the full exercise of trade union rights calls for a free flow of information, opinions and ideas, and that to this end workers, employers and their organizations should enjoy freedom of opinion and expression at their meetings, in their publications and in the course of other trade union activities, including that of criticising the Government's economic and social policy. In these circumstances, the Committee cannot but conclude that the CSTC president's expulsion and banning from Pointe Noire by the Public Prosecutor for disturbing the peace, during the course of a labour dispute in the petroleum sector constitutes, given the general nature of the charge, acts of anti-union repression. The Committee calls on the Government to arrange for a judicial inquiry into the truth of the allegations and, should it transpire that this trade union leader was merely exercising normal trade union activities, to revoke these measures which constitute a serious interference in the activities of the trade union organization of which he is president. The Committee requests the Government to keep it informed of the findings of this inquiry and of developments in the situation.
9. 211. The Committee notes that the complaint also refers to the threatened arrest of Mr. Moïse Lobe, vice-president of the CSTC. The complainant organization, however, provides no details of such threats, indicating neither from what quarter they came nor under what circumstances they were made. That being so, the Committee must recall in general terms that the detention of trade union leaders for activities connected with the exercise of their trade union rights is contrary to the principles of freedom of association. (See Digest, op. cit., para. 69.)
10. 212. With regard to the alleged expulsion of the CSTC from its premises and the ransacking of its property and documents in July 1995, and in the absence of any denial from the Government on this point, the Committee stresses the importance of the principle that the property of trade unions should enjoy adequate protection, as the International Labour Conference emphasized in its resolution concerning trade union rights and their relation to civil liberties, adopted in 1970. The Committee has consistently drawn governments' attention to the fact that searches of trade union premises should be made only following the issue of a warrant by the ordinary judicial authority where that authority is satisfied that there are reasonable grounds for supposing that evidence exists on the premises material to a prosecution for a penal offence and on condition that the search be restricted to the purpose in respect of which the warrant was issued. Even if police intervention in trade union premises may be justified in particularly serious circumstances, such intervention should in no case entail the ransacking of the premises and records of an organization. (See Digest, op. cit., paras. 184, 180 and 182.) The Committee therefore calls on the Government to arrange for an independent inquiry into the alleged expulsion of the CSTC from its premises and the ransacking of its property and documents and, should the allegation prove true, to return its premises and property to this workers' organization and to sanction the perpetrators of these illegal acts so that such inadmissible practices do not recur. It requests the Government to keep it informed of the steps taken in this respect and of the findings of the inquiry.
11. 213. With regard to the banning of trade union meetings, specifically on 27 July and 12 August 1995 at the Koulounda roundabout in the 5th district of Brazzaville, and in the absence of any denial on the part of the Government, the Committee recalls that trade union rights include the right to organize public demonstrations. If the authorities decide to ban a demonstration in the busiest parts of the city in order to prevent disturbances, the ban does not constitute an infringement of trade union rights; but the authorities should strive to reach agreement with the organizers of the demonstration to enable it to be held in some other place where there would be no fear of disturbances. (See Digest, op. cit., para. 136.) The Committee requests the Government to communicate its comments and observations on this aspect of the case.
12. 214. As to the alleged threats of dissolution and suspension of the CSTC, the Committee, though noting that the allegations have been made without any details regarding the circumstances surrounding these threats, recalls that the suspension or dissolution of workers' organizations by administrative authority is contrary to Article 4 of Convention No. 87 ratified by Congo. Any such measure would constitute an extremely serious violation of freedom of association. It therefore urges the Government not to resort to such action.
13. 215. Regarding the alleged restrictions on the exercise of the right to strike that have occurred since January 1995 both in the private and in the public sector (the threat of the use of the police against strikers, the blacklisting of striking workers, the arbitrary posting of trade union leaders and activists, the dismissal of workers in the private sector following the general strike called on 4 January 1995 and the 8 March 1995 order of the Council of Ministers authorizing the payment of wages in all administrations only to those officials who have actually been present at their place of work), the Committee notes with regret that the Government has not commented on these aspects of the case either.
14. 216. The Committee sees from the documentation sent by the complainant organization that strikes were called because of the deterioration of the labour situation - salaries and pensions 14 months in arrears between 1992 and 1994 and a drop in purchasing power following the devaluation of the franc - and considers that protest strikes in a situation where workers have for many months not been paid their salaries by the Government are legitimate trade union activities. It recalls that no person should suffer from anti-trade union discrimination when legitimately exercising the right to strike and calls on the Government to revoke all anti-union reprisals that may have been taken in the public and private sectors, including the 8 March 1995 order of the Council of Ministers, and to take the necessary steps to enable the leaders and members of trade union organizations who have been dismissed for legitimately exercising the right to strike to be reinstated in their jobs.
15. 217. Regarding the alleged practice of blacklisting, the Committee recalls that blacklisting constitutes a serious threat to the free exercise of trade union rights and that, in general, governments should take stringent measures to combat such practices. (See Digest, op. cit., para. 709.) It requests the Government to communicate its comments and observations on this allegation.
16. 218. Finally, with respect to the allegation that an amendment to legislation on the right to strike in the public service is currently being drafted, which would increase the Government's power to requisition all or part of the striking officials, to impose a compulsory minimum service without negotiating with the social partners, to extend the ban on strikes to certain categories of officials other than the police and to impose a quorum of 51 per cent of the workers for calling a strike, the Committee notes that the complainant organization has enclosed with its communication a Bill regulating the exercise of the right to strike in the public administration and in public administrative establishments.
17. 219. The Committee notes with concern the numerous problems in the country and observes that the Bill regulating the exercise of the right to strike in the public service contains several provisions which are not in conformity with the principles of freedom of association, in particular, the restrictions on the exercise of the right to strike in public services beyond the notion of essential services in the strict sense of the term, the broad imposition of a minimum service and the prohibition of go-slows, work-to-rule, rotating and sympathy strikes. In these circumstances, the Committee suggests that the Government communicate the Bill to the ILO prior to its adoption so as to ensure that its provisions do not run counter to these principles. The Committee draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to the legislative aspects of this case in respect of Convention No. 87.