Informe provisional - Informe núm. 348, Noviembre 2007

533. The Committee last examined this case during its May–June 2006 session [see 342nd Report, paras 412–436]. The Djibouti Union of Workers (UDT) sent additional information in a communication dated 17 June 2006, and new allegations in a communication dated 3 October 2006.

1. 534. The Government sent its observations in a communication dated 27 March 2007.
2. 535. Djibouti 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. Previous examination of the case

1. 536. In its previous examination of the case, the Committee made the following recommendations [see 342nd Report, para. 436]:
2. (a) With regard to the alleged refusal to reinstate the workers dismissed following a strike, the Committee requests the Government to keep it informed of the situation regarding the trade union officials to be reinstated under the terms of the agreement of 8 July 2002: Abdoulfatah Hassan Ibrahim; Hachim Adawe Ladieh; Houssein Dirieh Gouled; Moussa Wais Ibrahim; Abdillahi Aden Ali; Habib Ahmed Doualeh and Bouha Daoud Ahmed. The Committee requests the Government to ensure that all those workers who so wish are reinstated, without loss of wages or benefits, and that those not wishing to be reinstated receive adequate compensation.
3. (b) With regard to the allegations of harassment and unfair dismissal of trade union officials, the Committee requests the Government promptly to launch an independent inquiry into the allegations of harassment and dismissal of trade union officials, as well as into the alleged pressure on their friends and families and, should evidence be found of such acts having been committed, immediately to take the necessary measures to put an end to such acts of discrimination and harassment and to punish those responsible.
4. (c) With regard to the allegation concerning the adoption of a new “antisocial” labour code which violates both international Conventions and the national Constitution, the Committee requests the Government to provide a copy of the text in question.
5. (d) Deploring the information concerning the arrest of an ILO official, the Committee considers this to be a serious and urgent case and urges the Government to reply without delay to the serious allegations raised in the latest communication of the ICFTU referring to government intervention in strike action and trade union elections, arrests and detention of trade union leaders and members, the barring from entry of an international trade union solidarity mission and the subsequent arrest and interrogation of the unique member of this mission who was allowed to enter the country, an ILO official, so that it may be in a position to examine this case in full knowledge of the facts.
6. (e) The Committee requests the Government to accept a direct contacts mission.
7. B. New allegations
8. 537. In its communication of 17 June 2006, the UDT states its view that the Labour Code, promulgated by Act No. 133/AN/05/5th L of 28 January 2006, is a retrograde step in relation to the previous Code and violates Conventions Nos 87 and 98 by imposing restrictions on the exercise of trade union rights. Moreover, the Government’s claim that the Code was drafted with the collaboration and approval of the International Labour Office (ILO) is incorrect; the ILO and the country’s social partners were not involved in the adoption of the Code.
9. 538. Certain provisions of the Labour Code are likely to put free and independent trade unionism at risk. Sections 41 to 43 on the suspension of employment contracts during periods of trade union office could result in the holding of trade union office being considered a form of serious misconduct which would allow the employer to claim substantial modification of the terms of the contract and dismiss the worker concerned.
10. 539. Moreover, according to section 214, a person sentenced by any court is barred from holding any trade union office. In the context of Djibouti, where a person can be arrested, detained and sentenced on spurious pretexts, this provision of the Labour Code constitutes a threat to the exercise of freedom of association and the right to bargain collectively. In support of this claim, the complainant cites two examples of arrests and sentences which are considered arbitrary.
11. 540. The complainant also criticizes section 215 of the Labour Code, which relates to procedures for verifying the legality of a trade union. This provision contains measures which run counter to the principle of freedom of association; it provides, for instance, that a trade union is legalized when the Minister of Labour issues a certificate on the recommendation of the labour inspector; that the government procurator has the right to dissolve a trade union; and that the process for establishing a trade union must be repeated even when there is a minimal change within the trade union’s administration.
12. 541. All these provisions infringe not only ILO Conventions Nos 87, 98, 135 and 158, but also national texts such as the Constitution and regional and international agreements.
13. 542. In its communication dated 3 October 2006, the UDT refers once again to the situation involving Mr Hassan Cher Hared, secretary for international relations of the UDT. The UDT recalls that Mr Hassan Cher Hared was subjected to various forms of discrimination and harassment, and refers to his dismissal in September 2006 when he was participating in trade union training activities at the ILO International Training Centre in Turin. According to the UDT, the fact that Mr Hassan Cher Hared was dismissed, even though his request for leave to participate in the trade union training seminar had been approved, shows how sections 41 to 43 of the Labour Code can be used to punish trade union activity as a form of serious misconduct, through dismissal.
14. C. The Government’s reply
15. 543. In a communication dated 27 March 2007, the Government sent its observations concerning certain points raised in the recommendations made by the Committee during its previous examination of the case.
16. 544. With regard to the adoption of the Labour Code, the Government states once again that the social partners were fully consulted at each stage of the process. According to the Government, the work, which lasted almost ten years, began at the end of 1996 and ended in January 2006 with the promulgation by the President of the Republic of the Act issuing the Labour Code. The Government states that consultations with the social partners took place during the preparatory phase between 1996 and 1997, and again in September 1999 when the first “state” version was presented to the social partners. A new version proposed by the Employers’ Association was received by the Government in January 2000. During the second phase established by the Government, an ad hoc review committee was set up in November 2001 to prepare a version of the Code which would take into account the social partners’ observations. The social partners met between February and March 2002 to discuss the version drafted by the ad hoc committee. However, although comments were received from the Employers’ Association, the trade union confederations (UDT and UGTD) did not provide any comments, on the grounds that they did not have the necessary technical expertise. In May 2002, the Ministry offered the trade unions the assistance of Mr Mohamed Ali Foulie. However, according to the Government, Mr Foulie withdrew his assistance when the trade unions failed to give their full cooperation. Following a government reminder to the trade unions in July 2002, comments on the Code were received from the Arab Labour Organization (ALO) on behalf of the UGTD. The ILO submitted its comments on the Code in November 2002 following a request by the trade unions. The Government states that all these elements are proof of its commitment to the principle of collective bargaining which has been fully applied in the context of the adoption of the Labour Code.
17. 545. With regard to the content of the Labour Code which, according to the complainants, restricts workers’ right of association and does not allow collective bargaining in law or in practice, the Government states that one of the main principles enshrined in the new law is the principle that the State must not do everything but should instead allow the parties free rein to negotiate among themselves. In this respect, the Code recognizes the right of association and the importance of collective bargaining in sections 212, 214, 216, 258 and 259, to which the Government refers in detail.
18. 546. Finally, with regard to the reinstatement of the workers dismissed in 1995, the Government states that this is no longer relevant, since the workers concerned have either been reinstated, have refused to be reinstated, or no longer live in Djibouti. In support of its statement, the Government cites the example of Mr Aden Mohamed Abdou and Mr Kamil Diraneh Hared, who both refused the offers made to them. As for Mr Hassan Cher Hared, the Government states that he was reinstated in August 2005.

D. The Committee’s conclusions

1. 547. The Committee takes note of the new allegations presented by the UDT. It recalls that the present complaint concerns: (1) the Government’s refusal to take the necessary measures to reinstate union members dismissed in 1995 following a strike in protest against the consequences of a structural adjustment programme launched by the IMF, despite having made a commitment to reinstate them in 2002; (2) the repeated harassment of trade unionists, the arrests and dismissals of trade union officials, and the lack of response by the courts to the trade unionists’ complaints; (3) the adoption of a new Labour Code that will result in the disappearance of free and independent trade unionism; (4) the barring from entry of an international trade union solidarity mission, despite assurances given by the Minister of the Interior that he would allow the mission to enter Djibouti without hindrance; and the arrest and subsequent interrogation of the only member of the mission who was allowed to enter the country (an ILO official).
2. Factual aspects of the case
3. 548. With regard to the allegations concerning the refusal to reinstate workers dismissed following a strike, the Committee had noted that under the terms of the agreement concluded on 8 July 2002 between the Directorate for Labour and Relations with the Social Partners and the trade union officials, the Government had undertaken to reinstate the dismissed trade unionists. The Committee had requested the Government to ensure that all those workers who so wished were reinstated, without loss of wages or benefits, and that those not wishing to be reinstated received adequate compensation, and had also requested the Government to provide further information on the situation concerning seven of these individuals, namely: Abdoulfatah Hassan Ibrahim; Hachim Adawe Ladieh; Houssein Dirieh Gouled; Moussa Wais Ibrahim; Abdillahi Aden Ali; Habib Ahmed Doualeh; and Bouha Daoud Ahmed. In this regard, noting the information provided by the Government on the situation of Aden Mohamed Abdou and Kamil Diraneh Hared, who are alleged to have refused offers of reinstatement, the Committee notes with regret that the Government has not replied to this request, and urges it to do so.
4. 549. As regards the points raised in subparagraph (b) of the above recommendations, the Committee notes with regret that the Government has not replied to the allegations of harassment and unfair dismissals of trade union officials. The Committee urges the Government promptly to launch an independent inquiry into the allegations of harassment and dismissals of trade union officials and the pressure to which their friends and families have been subjected, and, if those allegations are found to be true, to take immediate steps to put a stop to such acts of discrimination and harassment and punish those responsible.
5. 550. As regards the allegations made by the UDT on the situation of Mr Hassan Cher Hared, the Committee is concerned by information that he was dismissed in September 2006 while participating in a trade union training course at the ILO’s International Training Centre in Turin. The Committee notes that, according to the UDT, the application for leave made by Mr Hassan Cher Hared for the purpose of taking part in the course had in fact been accepted. While noting the Government’s information that Mr Hassan Cher Hared had been reinstated in August 2005, the Committee notes with regret that the Government does not reply to allegations that he was again dismissed in September 2006. The Committee deeply regrets this new dismissal of Mr Hassan Cher Hared, which took place when he was abroad, and urges the Government to launch an inquiry without delay into this latest dismissal and, if it is found that the dismissal was based on anti-union grounds, to reinstate Mr Hassan Cher Hared and pay any arrears of wages owed to him, and to keep the Committee informed on this matter.
6. 551. The Committee notes with deep regret that the Government has not replied to subparagraph (d) of the above recommendations concerning the Government’s intervention in strikes and trade union elections, arrests and detentions of trade union leaders and members, the barring from entry of an international trade union solidarity mission, and the subsequent arrest and interrogation of the only member of this mission who was allowed to enter the country (an ILO official). The Committee calls on the Government to provide its observations as soon as possible, so that it may be in a position to examine this case in full knowledge of the facts.
7. Legal aspects of the case
8. 552. With regard to the adoption in January 2006 of the new Labour Code, which the complainant organizations claim is “antisocial” and violates both international Conventions and the country’s Constitution, the Committee has received a copy of the text in question. The Committee takes note of the UDT’s allegations concerning sections 41, 42, 43, 214 and 215 of the Code, and has also taken note of the Government’s observations.
9. 553. As regards sections 41 and 42 of the Labour Code concerning the suspension of employment contracts, the Committee notes that according to section 41, the employment contract is suspended for the duration of any term of political or trade union office held by the worker which is not compatible with paid employment (paragraph 8). Section 42 provides in addition that the period during which the employment contract is suspended is not counted for the purpose of determining the worker’s seniority within the undertaking. In this regard, the Committee considers that the holding of trade union office is not incompatible with paid employment, and consequently any worker holding trade union office should be able to remain employed. The Committee recalls that Paragraph 10, subparagraph 1, of the Workers’ Representatives Recommendation, 1971 (No. 143), provides that workers’ representatives in the undertaking should be afforded the necessary time off from work without loss of pay or social or fringe benefits, for carrying out their representation functions [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 1110].
10. 554. The Committee considers that sections 41 and 42 of the Labour Code, in providing for a more or less automatic suspension of the employment contract when a worker holds trade union office, are likely to be detrimental to the rights of all workers to establish and join a trade union of their own choosing and to carry on their trade union functions. The Committee considers that it would be more appropriate to leave the question of the continuation of duties during a period of trade union office to negotiation between the parties concerned. The Committee therefore requests the Government to modify the Labour Code with provisions to the effect that the possibility of suspending a worker’s employment contract during a period of trade union office, in cases where holding such office is incompatible with the demands of work, is a matter for negotiation between the parties concerned, who must establish the relevant practical aspects of this, and in any event cannot be automatic. The Committee requests the Government to keep it informed in this regard.
11. 555. With regard to section 214 of the Labour Code, according to which a person sentenced by any court may not hold union office, the Committee recalls that a law which generally prohibits access to trade union office because of any conviction is incompatible with the principles of freedom of association, when the activity condemned is not prejudicial to the aptitude and integrity required to exercise trade union office [see Digest, op. cit., para 421]. In this case, the Committee considers that section 214 of the Labour Code, in deeming any person who has been convicted to be unsuitable for trade union office, is formulated too broadly and would cover situations in which the nature of the conviction is not inherently such as to rule out the holding of trade union office. The Committee requests the Government to modify section 214 of the Labour Code in consultation with the social partners so as to ensure that only court sentences for offences which by their very nature are prejudicial to the integrity of the individual are deemed to be incompatible with the holding of trade union office.
12. 556. As regards section 215 of the Labour Code concerning the formalities for registration and verification of a trade union’s legality, the Committee notes, first, that the founders of any trade union are required to deposit their by-laws and the list of persons charged with the administration and management of the union. Within a period of 30 days following deposition, copies of the by-laws and the list of union officials are transmitted by the labour inspector to the Labour Minister and to the government procurator. These documents are accompanied by a report produced by the labour inspector on the circumstances and conditions in which the union has been established, the date and place of the constituent meeting, and the occupational backgrounds of the members. The Labour Minister then has 15 days to grant legal recognition to the union. The government procurator then has 30 days to verify that the union’s by-laws are in order and to review the situation of each of the union officials, and to inform the Minister of the Interior, Minister of Labour and the union officials concerned, of his conclusions. Lastly, any modification to the by-laws and any changes to the union officers have to be reported to these same authorities and is subject to verification under the same conditions.
13. 557. The Committee recalls that Article 2 of Convention No. 87 guarantees the right of workers and employers to establish and join organizations of their own choosing “without previous authorization”. National legislation which requires the deposition of organizations’
14. by-laws is compatible with this provision of the Convention if it is a mere formality intended to ensure that the by-laws are available to the public. Nevertheless, problems of compatibility with Convention No. 87 may arise if the registration procedure is lengthy or complicated, or if the rules concerning registration are applied in such a way as to defeat its purpose and the registration authorities make excessive use of discretionary powers, given that unclear texts can favour such interpretations. In the case under consideration, section 215 of the Labour Code, according to which a favourable decision of the Labour Minister requires not only the deposition by the trade union’s founders of the relevant documents but also a detailed report by the labour inspector, would appear to grant more or less discretionary power to the authorities in deciding whether or not an organization meets the registration criteria. The situation thus created would be similar to the situation in which previous authorization is required. Such a situation is likely to be a serious obstacle to the establishment of organizations and may in practice be tantamount to denying the right of workers and employers to establish organizations without previous authorization, in contravention of Article 2 of Convention No. 87. Consequently, the Committee requests the Government, in consultation with the social partners, to modify section 215 of the Labour Code so as to guarantee the right to establish workers’ and employers’ organizations without previous authorization, remove the provisions which de facto give discretionary powers to the authorities, and ensure that the registration procedure is just a formality.
15. 558. The Committee wishes to recall that there should be a right of appeal to the courts against any administrative decision regarding the registration of a trade union organization. The Committee requests the Government to indicate the appeal procedure available in cases where the Labour Minister refuses to issue a registration certificate, or in cases where the government procurator requests closure of a union under section 215 of the Labour Code. If no appeal procedure is available under national laws and regulations, the Committee invites the Government to establish one.
16. ILO technical assistance
17. 559. The Committee has taken note of the discussions that took place within the Committee on the Application of Standards at the 96th Session of the International Labour Conference on the application by Djibouti of Convention No. 87. The Committee notes that the Government has accepted a direct contacts mission in order to clarify the situation as regards all of the issues raised [see ILC, 96th Session, Provisional Record No. 22, Part II, p. 30]. In that regard, the Committee hopes that it will be possible to discuss all the issues raised in the present case during the direct contacts mission, given the discrepancies between the information contained in the communications of the complainant organizations and that of the Government. The Committee requests the Government to keep it informed of any new development concerning the holding of an on-the-spot direct contacts mission and the measures taken to give effect to its recommendations.