Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 338, Noviembre 2005

471. The complaint is contained in communications from the Confederation of Autonomous Trade Unions of Benin (CSA-BENIN) dated 31 January and 18 March 2005.

1. 472. The Government sent its reply in a communication dated 31 May 2005.
2. 473. Benin 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. 474. In its communication of 31 January 2005, the Confederation of Autonomous Trade Unions of Benin (CSA-BENIN) explains that, in accordance with the recommendations of the West African Economic and Monetary Union (UEMOA), the Financial Bank Benin was placed under temporary guardianship from April 2003 to July 2004 because of its poor results. At the end of that period, it was necessary to restore the bank’s decision-making bodies (the general assembly of shareholders and the board of directors) and appoint a managing director. On 29 July 2004, the board of directors appointed Mr. Labonté, former director of operations of the bank, to that post. This gave rise to serious concerns among the staff because of Mr. Labonté’s methods in the past, which have been described as “dubious”. On 30 July 2004, the Union of Workers of the Financial Bank Benin (SYN.TRA.F.I.B) sent a petition on behalf of the staff to the chairperson of the board of directors, setting out their concerns regarding Mr. Labonté, in particular: his responsibilities, when director of operations of the bank, in creating a situation in which the bank was placed under temporary guardianship; extortion from clients; issuing cheques without the necessary funds; failure to adhere to commitments; and attempts to sabotage the temporary guardianship.
2. 475. Mr. Labonté took up his new post on 3 August 2004, despite the protests of the staff. On the same day, the SYN.TRA.F.I.B passed a motion to go on strike for 72 hours to demand his resignation. At a meeting with the union and staff delegates, Mr. Labonté made some statements which somewhat reduced the tension. Just after the meeting, however, on 5 August 2004, he issued an official memo (No. 0408/DG/008) expressing disapproval of the strike motion and threatening sanctions against all the workers who had participated in the stoppage organized by the SYN.TRA.F.I.B. An initial attempt at conciliation failed. The staff held a general meeting on 6 August to decide on the implementation of the strike motion, and the strike took place over three days (from 9 to 11 August). The strike was renewed for a further three days (12 to 14 August) following a second unsuccessful conciliation initiative.
3. 476. Another meeting was held on 12 August between the CSA-BENIN, its affiliate the Federation of Bank Employees’ Unions (FE.S.TRA.BANK), of which the SYN.TRA.F.I.B is a member, and the bank’s senior managers. This led to a written agreement according to which the board of directors would hold an extraordinary meeting on 13 August in order to consider the workers’ grievances. The directors also gave an undertaking not to discipline workers who resumed work on 13 August. The CSA-BENIN has supplied a copy of the relevant minutes of the meeting of 12 August.
4. 477. In accordance with the agreement, the board of directors set up a commission of inquiry to verify the allegations made by staff. The commission presented its report on 27 August (a copy of which is attached to the complaint). Despite the report’s conclusions confirming some of the allegations, in particular the allegation that Mr Labonté had issued cheques without adequate funds, the board of directors confirmed Mr. Labonté in his post on 30 August.
5. 478. The bank directors then began to apply sanctions against workers, in contravention of the agreement of 12 August. The deputy managing director was removed from his post, and the posts of inspector (auditor) general were abolished because the incumbents had stated that Mr. Labonté did not have the qualifications required to extricate the bank from its difficulties. The bank’s directors decided to dismiss 40 employees, including ten trade union officials (among whom was the general secretary) and four staff delegates, as of 17 September 2004. The reason given was that they had taken part in the stoppage organized by their union.
6. 479. A number of actions were carried out at the local and national levels by the different trade unions concerned, including actions aimed at the Ministry, the Government and the President, but without success. The complainant alleges that the bank’s directors infringed national laws and Conventions Nos. 87 and 98. It also argues that, if the real motive for the dismissals was the fact that workers had responded to a strike call by the SYN.TRA.F.I.B, they should have affected all the workers, who heeded the strike call unanimously. Since more than 100 bank employees were not dismissed, the dismissals must have been selective and discriminatory, and had the characteristics of reprisal action. They were arbitrary in that they affected union officials and staff delegates, and were carried out without the due process normally required by national legislation.
7. 480. In its communication of 18 March 2005, the complainant provides copies of the correspondence of August 2004 between the chairperson of the board of directors and Mr. Dossou-Ahoue, deputy managing director of the bank and Mr. Labonté’s superior at the time of these events, concerning certain irregularities and uncovered cheques, which cast doubt on Mr. Labonté’s suitability for the post of managing director.
8. B. The Government’s reply
9. 481. In its communication of 31 May 2004, the Government states that on 4 July 2004, the Ministry of Labour was presented with a motion to strike for 72 hours as planned by the workers of the Financial Bank Benin, in protest against the appointment of Mr. Labonté as managing director. The reason given for this was that the appointment posed a threat to customers, shareholders and employees. During discussions with the union aimed at finding a way out of the crisis, the union referred to the period of temporary guardianship during which Mr. Labonté had allegedly carried out a number of dubious acts, but gave no details. Mr. Labonté took the view that there was no justification for his resigning, as the union had demanded, and that this demand was unconnected with his professional suitability.
10. 482. The union’s representatives were invited to supply details of the alleged acts and asked to suspend the planned strike, as they were engaged in talks with the board of directors which alone can appoint or dismiss a managing director. Contrary to all expectations, the strike went ahead, while consultations were supposed to continue, involving both the Minister and the board of directors.
11. 483. The Government recalls that Benin has acceded to the universal and regional instruments concerning the right of association, right of assembly, and right to form and join unions. It has also ratified ILO Conventions Nos. 87 and 98. Articles 25 and 31 of the country’s Constitution recognize the rights of association, assembly, demonstration and strike. This also applies to the laws and regulations applicable specifically to civil servants and private sector workers.
12. 484. Nevertheless, the right to strike is not an absolute and unlimited right. Article 8 of Convention No. 87 states that “In exercising the rights provided for in this Convention workers and employers and their respective organizations, like other persons or organized collectivities, shall respect the law of the land.” Article 31, in fine, of the Constitution stipulates that the right to strike may be exercised within the context defined by law. Section 264 of the Labour Code provides that strike action may be taken only if talks with the labour inspector or director have failed. In this case, talks were to be continued with the board of directors and with the relevant department of the Ministry when the strike began and was subsequently renewed.
13. 485. As regards the reasons given for the dismissals, the employer cites the illegal work stoppage, and refutes the social motives of the strike. The Government is aware that the right to strike implies the continuation of the employment relationship, and that the legitimate exercise of the right to strike should not result in the dismissal of strikers, but considers nevertheless that any dispute arising from the exercise of the right to strike must be dealt with in the same way as any other individual or collective labour dispute. The relevant procedure is set out in sections 254-256 of the Labour Code and is based in essence on conciliation between the parties concerned. Efforts were made to bring this about but without success. The Government also points out that its efforts of persuasion have prevented other planned dismissals from taking place.
14. 486. The fundamental issue on which the parties cannot agree is that of the legitimacy of the strike movement of the bank’s workers. Since it has not been possible to achieve settlement of the dispute through reconciliation, a response will be given by the court of first instance to which the case will be referred.
15. 487. Responding to the main accusation made by the union, i.e. that it failed to exercise its political authority to demand the reinstatement of the dismissed workers, the Government states that neither judicial precedents nor positive law in Benin recognizes a right to reinstatement for dismissed workers.

C. The Committee’s conclusions

1. 488. This complaint concerns the dismissal of some 40 union members, officials and staff delegates following a strike called by the Union of Workers of the Financial Bank Benin (SYN.TRA.F.I.B) in protest against the appointment of a new managing director following a period of temporary guardianship imposed by the West African Economic and Monetary Union (UEMOA) owing to the bank’s poor performance.
2. 489. The Committee notes that, according to the workers and their union, the new managing director Mr. Labonté bears personal responsibility for the situation which led the bank into temporary guardianship, that he was guilty of actions that were contrary to the bank’s directives (issuing uncovered cheques, unauthorized overdrafts) during the period of temporary guardianship, and that he does not have the qualifications required to improve the bank’s situation. Mr. Labonté considers that there is nothing to justify the call for his resignation made by the SYN.TRA.F.I.B.
3. 490. The Committee wishes to emphasize from the outset that it is not for it to decide as to whether or not the grievances of the staff against Mr. Labonté are well founded.
4. 491. As regards the central issue of the legality of the strike on which the justification of the dismissals depends, the Committee recalls that, while the Committee has always regarded the right to strike as constituting a fundamental right of workers and of their organizations, it has considered it as such only in so far as it is utilized as a means of defending their economic and social interests [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 473 and 474]. Noting that the litigation regarding the legality or otherwise of the strike has been referred to the court of first instance, the Committee requests the Government to communicate to it the text of any ruling handed down in the matter.
5. 492. The Committee also notes that the complainant alleges that the dismissals were discriminatory in that they applied selectively to ten union officials and four staff delegates, of the 40 persons dismissed. The Confederation of Autonomous Trade Unions of Benin (CSA-BENIN) maintains that the provisions of national legislation providing greater protection for union officials were not respected. The Committee is not in a position to give an opinion on these points, since it has not received any relevant details from the complainant organization and no reply from the Government. Recalling that, where cases of alleged anti-union discrimination are involved, the competent authorities dealing with labour issues should begin an inquiry immediately and take suitable measures to remedy any effects of anti-union discrimination brought to their attention [see Digest, op. cit., para. 754], the Committee requests the Government to carry out swiftly an independent and impartial inquiry, having due regard to the judicial proceedings under way, in order to determine whether there has been anti-union discrimination on the part of the bank. In addition, since Benin has ratified the Workers’ Representatives Convention, 1971 (No. 135), that inquiry should also reveal whether national legislation giving effect to that Convention has been properly applied in this case. The Committee requests the Government to communicate the results of the inquiry on these two points as soon as they are available.