Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 346, Junio 2007

996. This complaint is contained in a communication from the Gabonese Confederation of Free Trade Unions (CGSL) dated 25 August 2006.

1. 997. The Government of Gabon sent its observations in a communication dated 26 February 2007.
2. 998. Gabon 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. 999. In its communication dated 25 August 2006, the CGSL alleges that the Government did not respect its commitments and interfered in the activities of the trade union. The trade union also alleges that arbitrary arrests and detentions took place, as well as the suspension of contracts and illegal mass dismissals.
2. 1000. The complainant organization indicates that the Government is engaging in actions which tend to favour trade union organizations that are “structured and not organized either vertically or horizontally” and are not representative, by granting them financial means to enable them to participate in international conferences and other of the Republic’s institutions, without these being represented in at least two of the nine provinces in Gabon.
3. 1001. Likewise, the complainant states that the Government has not adhered to the conclusions contained in the general report of the tripartite seminar concerning the representativeness of occupational employers’ and workers’ organizations, held in Libreville on 5, 6 and 7 October 2004 with the participation of an expert appointed by the ILO on the express request of the Government of Gabon. Four recommendations were adopted by the participants, including the establishment of an electoral committee before the end of November 2004 and the organization of trade union elections in March 2006. The result was the creation of “interunion associations” which are not formal trade union structures under the terms of Convention No. 87.
4. 1002. The CGSL alleges that the Government interfered in its internal affairs by deciding to exclude the members of the properly elected executive committee and to replace them in national and international institutions, such as the Maritime Conference or the 95th Session of the International Labour Conference in 2006.
5. 1003. The complainant also states that the Government unilaterally denounced a bipartite agreement relating to the grant it obtained following a power struggle, the new distribution of which has been carried out according to the wishes of the Government without the slightest concession.
6. 1004. Likewise, the labour inspector prohibited one of the members of the complainant organization, already a trade union delegate of the CGSL, from being elected staff delegate, although it was a choice all the workers had made. The complainant stresses that the attitude of the labour inspector constitutes a violation of ILO Conventions Nos 87 and 98.
7. 1005. The CGSL also alleges the violation of Conventions Nos 87, 98 and 144 and of the provisions of article 3.5 of the Constitution of the ILO by the Government, following the appointment of members of the constituent assembly of the Economic and Social Council (CES), which extended its mandate without any pre-established objective criteria, with more than 60 unions, all sectors taken together, in a country of less than 2 million inhabitants. According to the CGSL, the most serious aspect is that the CES still has no organizational law adapted to the Republic’s new constitutional provisions.
8. 1006. In the same communication, the complainant organization alleges the occurrence of mass arrests and arbitrary imprisonments of its members: the Secretary-General of the Inter-occupational Trade Union of Ogooué Lolo, for having refuted the allegations of ill-intentioned gendarmes; and the provincial representative of Moyen Ogooué, Thierry Kerry, an employee of the RIMBUNAN enterprise in Lambaréné, who spent two months in prison with three of his union members. In this last case, everything began with his appointment as provincial representative of the CGSL, and his fixed-term contract was interrupted before its expiry. Being accommodated by the enterprise, the complainant organization considered that he should be paid damages, in accordance with the document elaborated by the provincial labour director, Mr Boulepa. A judicial procedure was opened in which the gendarmerie, the police, the president of the court and the provincial labour director were implicated. These three people were imprisoned not for having asked for their rights to be respected, but primarily for their membership of the trade union.
9. 1007. Mass dismissals were announced, using economic grounds as a pretext, while Decree No. 00407 of 16 April 1976 is not adapted to the new provisions of Act 3/94 of 21 November 1994 (amended by Act 12/2000 of 12 October 2000), article 59, concerning the Standing Committee for Economic and Social Conciliation, the only body competent to assess the economic nature of dismissals.
10. 1008. Meye Sima, trade union official of the FLEEMA affiliated to the CGSL, was held in police custody on a number of occasions, and was imprisoned and suspended for a period of six months, after his employer, the enterprise Total Marketing, accused him of theft. This model employee, who had excelled in the management of a profit centre for oil products, had his life turned upside down when he was elected staff delegate on the CGSL list, and then trade union official of the FLEEMA affiliated to the CGSL. The complainant states that this trade unionist was dismissed although no proof of his guilt was ever established.
11. 1009. Jean Bernard Mouguenguy, a member of the federal office of the FLEEMA affiliated to the CGSL, was questioned by the Konltang gendarmerie and the judicial police of Libreville on a number of occasions concerning a fatal car accident, although he had not been driving the car and neither the results of the accident report nor of the inquiry were ever known. Mr Mouguenguy suffered ill-treatment at the hands of the police as a result of his trade union activities. According to the CGSL, the enterprise “Ciments du Gabon”, the employer of the FLEEMA/CGSL trade unionist, wanted to part with him.
12. 1010. Gilbert Ngorro, Secretary-General of the works union COMILOG, member of the FLEEMA affiliated to the CGSL, received threats from the enterprise’s general management, during a working session, for the stands he took. Mr Ngorro was arrested and then transferred and held in police custody at the CEDOC in Libreville. This situation led to a nine-day strike which paralysed the economic activity of the COMILOG. The reasons for this arrest have never been clarified and the request for a statement has remained unanswered.
13. 1011. Mr Mandza, a member of the executive committee of the COMILOG works union, was held in police custody before being dismissed with the complicity of the departmental inspectorate of Lebombi Franceville, following an accusation of theft by his employer. Mr Mandza was questioned and held by the police for two days until the dismissal authorization was issued by the labour inspector, following an inquiry in which Mr Mandza’s guilt was not established. According to the complainant organization, the objective of the administrative, judicial, political and labour leaders and authorities was to remove anyone who tried to perform trade union activities in the COMILOG enterprise and throughout the province on behalf of the CGSL.
14. 1012. Two CGSL members were dismissed from the Gabon Surveillance Society (SGS) for having been candidates in the elections of staff delegates, for having belonged to the CGSL and encouraging other employees to strike. A third person who had a CGSL membership card was able to keep his job after having renounced his membership of the CGSL, under pressure; the COSYGA being the only trade union authorized in the SGS.
15. 1013. Lastly, Mr Taleyra’s job site in Ngongue was the scene of a repression of workers and their families who had requested better living and working conditions, by the gendarmerie, who set off from Libreville on the Government’s instructions.
16. B. The Government’s reply
17. 1014. In its communication of 26 February 2007, the Government of Gabon states that it does not favour any trade union organization that is “structured and not organized either vertically or horizontally”. All workers’ organizations are treated equally by the Government. Of course, the problem of their representativeness has not yet been solved, but an estimation of this representativeness has been possible by taking into consideration certain objective criteria listed in the Labour Code and observations in the field. Thus, an order has been issued organizing the trade union confederations into a hierarchy for the purposes of distributing the State-allocated grant. The CGSL is in second position in this hierarchy. Nevertheless, in view of the internal dispute which split this confederation into two branches following contested elections, the share of the grant that falls to the confederation has been frozen until the dispute is resolved. Likewise, it does not seem reasonable to include in delegations to international meetings the members of each of the two groups before their disagreement has been settled.
18. 1015. On the matter of the tripartite workshop on representativeness, the Government indicates that the workshop did make a certain number of recommendations, including the organization of trade union elections in order to determine the representativeness of the country’s trade unions. The Government adds that the estimated budget for this operation, established by the services of the Ministry of Labour in 2003, was 1.5 billion CFA francs. Given the urgency of the establishment of the Standing Secretariat for Social Dialogue, and in order to make industrial relations more harmonious, the representatives of the trade union confederations, brought together by the Minister of Labour on 20 October 2006, subscribed to his proposal whereby, until the elections were held, representativeness should be in keeping with the hierarchy established in Order No. 0022/MTE/CAB dated 23 September 2005, concerning the distribution of the grant allocated to trade union confederations. The trade union representatives nevertheless expressed the wish that these elections be held in 2008. The CGSL would like, even demands, that the elections be held in 2007. The support for the proposal of the Ministry of Labour was formalized by an interim agreement signed by all the representatives of the trade union confederations and submitted to the Council of Ministers which ratified it.
19. 1016. With reference to Government interference in the activities of the CGSL, the Government states that it is difficult, given the anonymity maintained by the CGSL, to explain the situation denounced by the confederation. In effect, the Government would like to know which delegate is concerned and in which enterprise the events occurred.
20. 1017. As to the violation of Conventions Nos 87, 98 and 144, the Government indicates that it is difficult to establish a link between the appointment of members of the Economic and Social Council (CES) and the application of those Conventions. However, with regard to representatives of civil society in the CES, and in particular of workers’ organizations, only the most representative sit on it, which brings us back to the problem of representativeness. At present, all the confederations having signed the abovementioned interim agreement sit on this high institution of the Republic.
21. 1018. Furthermore, the Government adds that the Standing Committees for Economic and Social Conciliation, established by article 302 of the Labour Code, are not yet operational as the implementing decrees have not yet been published, specifically the decree establishing the structure of the Standing Committees for Economic and Social Conciliation. The Government indicates that it is an exaggeration and even imprecise to maintain that this situation promotes “mass dismissals on the pretext of economic grounds”.
22. 1019. In effect, according to article 59 of the Labour Code, “An employer who considers carrying out an individual or collective dismissal on economic grounds must provide the staff delegates, the officials of the most representative trade union and the members of the Standing Committee for Economic and Social Conciliation with the necessary information on the planned dismissals.” Pending the decree establishing the structure of the Standing Committees for Economic and Social Conciliation, the enterprises speak to the staff delegates and the trade union officials, and require the authorization of the labour inspector before proceeding with any dismissal on economic grounds. In this way, the procedure of dismissal on economic grounds is kept under control.
23. 1020. As concerns the arbitrary arrests and detentions of members of the CGSL, the Government has sent the following information: Thierry Kerry Nziengui was arrested, as well as four other former workers from the enterprise RIMBUNAN, for “verbal death threats, violence and assault”. The Government specifies that the case has been heard by a court.
24. 1021. The case of Meye Sima was the subject of a conciliation hearing before the labour inspector before being transmitted to the labour court. The Government indicates that the employer had lodged a complaint following the announcement of numerous cases of theft. The inquiry led to the arrest of Meye Sima, presumed perpetrator of the “misappropriation of gas cylinders”. A report of partial conciliation was established by the labour inspectorate, then transmitted to the competent court to rule on the request for damages. This case is under examination before the labour court.
25. 1022. Mr Mouguenguy, working at Ntoum cemetery, caused a fatal accident when he went to do some personal shopping in a neighbouring village without permission from his superiors, in violation of the provisions of the work regulations which prohibited the use of service vehicles outside the perimeter of the town. The Government indicates that a request of authorization for dismissal was made by the employer to the competent labour inspectorate, which gave its agreement. The Government adds that no arrest or ill-treatment occurred.
26. 1023. Mr Ngorro was arrested, then transferred and held in police custody at the General Directorate of Documentation Services (CEDOC), so that his identity could be checked by the immigration services. The Government specifies that there was a doubt as to his nationality, as those around him referred to him as being Congolese. This doubt was the only reason for his arrest. Nevertheless, in view of his status as Secretary-General of the enterprise union, this arrest caused a nine-day collective work stoppage which paralysed the enterprise’s activities. The Government adds that Mr Ngorro was released after his identity had been checked. He has never again been questioned on this matter and freely exercises his trade union activities.
27. 1024. Mr Mandza was held in police custody following a complaint made by his employer concerning a theft of oil. The Government indicates that the inquiry established the guilt of the accused in organizing a network for the theft of oil at the expense of the COMILOG. Mr Mandza, who acknowledged the facts, was dismissed for gross negligence following authorization from the labour inspector.
28. 1025. As regards the anti-union dismissals and suspensions of contracts of Mavoungou Moukelia and Juvénal Mbogou, members of the CGSL in the Gabon Services (sic.) Society (SGS), the Government indicates that the persons concerned were dismissed following the distribution of leaflets calling on the other workers to pursue the strike, although negotiations had just been held and work had returned to normal. The employer had warned the people concerned about such conduct and ended up by dismissing them.
29. 1026. Concerning the threats and repression by the forces of the gendarmerie, this case relates to a collective dispute in 2001 between the enterprise LUTEXFO SOFORGA, of which Mr Taleyra is the President Director-General, and his workers at the Doumé job site. The Government indicates that this dispute resulted from a strike for which the strike notice was not respected, triggered on the instigation of five workers, including Nicaise Mba Allogho and two others answering to the assumed names of “Minister” and “Teacher”. Everything allegedly began with the CGSL, not represented in the enterprise at the time, being cited in a dispute opposing Mr Mba Allogho and LUTEXFO. A member of the CGSL arrived at Doumé and his attitude did not help the situation: use of LUTEXFO vehicles to cut across the site, publicity, hindering workers from doing their jobs. The Government adds that the events caused the enterprise a loss of 1.6 billion CFA francs. Consequently, dismissal measures were taken against the ringleaders and those whose presence constituted a danger for the staff delegates accused of taking the employer’s side.
30. 1027. The Government specifies that this dispute was certainly one of the consequences of the failure to satisfy recurrent grievances contained in the list of claims and relating to general working conditions. The enterprise LUTEXFO was ordered by the Ministry of Labour to respond favourably to the grievances submitted. Some of them were satisfied, namely the fitting out of an infirmary at the Doumé camp, the provision of medicines to a value of 3 million CFA francs, the arrangement of bimonthly medical visits by a doctor based in Lastourville. The Government adds that one of the determining factors triggering and prolonging this dispute was the well-known absence of worker education and trade union training; the workers conducted the dispute in a manner which bears witness to a clear lack of awareness of the procedures for the settlement of collective labour disputes. This was followed by the excessive involvement of the CGSL which, by being both judge and judged, greatly overstepped its powers. In effect, a trade union, when defending its members’ interests, cannot also play the role of conciliator – that pertains to the labour administration. In the end, the desire expressed by the employer to respond favourably to the workers’ grievances helped to soothe the tensions and calm was restored, continuing to this day.

C. The Committee’s conclusions

1. 1028. The Committee observes that this case relates to a number of allegations, namely allegations of interference by the public authorities in trade union activities, including with regard to the appointment of trade union representatives to national and international conferences, which occurs without consultation with the organization; suspensions of employment contracts, dismissals, threats, arbitrary detentions and arrests of trade unionists, as well as mass illegal dismissals using economic grounds as a pretext. As regards the allegations relating to favouritism by the Government, the Committee notes the Government’s reply whereby it does not favour any trade union organization, as an order establishing a hierarchy among the trade union confederations was signed for the purpose of the distribution of State-allocated grants.
2. 1029. The Committee notes that the grant initially earmarked for the complainant organization was frozen because of the internal dispute which divided the confederation following contested elections, and that it would remain so until the end of the dispute. The Committee also notes that the Government did not consider it reasonable to include in delegations to international meetings the members of each of the two groups before their disagreement had been settled. The Committee invites the Government to inform it as soon as the dispute is settled.
3. 1030. With regard to the matter of the interference of the labour inspector, who prohibited the trade union delegate from the CGSL from being elected to the position of staff delegate, the Committee invites the complainant organization to provide further information, particularly concerning the delegate in question and the enterprise in which these events occurred.
4. 1031. The Committee notes that a certain number of problems raised in this case, as well as the general question relating to the need to establish a harmonious professional climate, are linked to the representativeness of trade union organizations. The Committee therefore invites the Government to pursue its efforts in this regard and recalls that the technical assistance of the Office is at its disposal in order to clarify the situation and to put in place a mechanism to determine whether trade union organizations are representative or not.
5. 1032. On the matter of allegations relating to the mass arrests and arbitrary imprisonments allegedly suffered by members of the complainant organization, the Committee notes the explanations provided by the Government, as well as the documents attached, showing that these arrests were not carried out owing to the trade union activities of the workers in question. Nevertheless, the Committee invites the Government to keep it informed of the procedure under way before the labour court concerning the request for damages made against Meye Sima, trade union delegate of the FLEEMA affiliated to the CGSL, and to provide the judgements handed down in the cases of Thierry Kerry Nziengui, representative of the CGSL for the province of Moyen Ogooué, and the other former employees of the enterprise RIMBUNAN.
6. 1033. In respect of the arrest of Mr Ngorro, Secretary-General of the works union COMILOG and member of the FLEEMA affiliated to the CGSL, the Committee notes the Government’s reply whereby this arrest was for the purpose of carrying out an identification control. Nevertheless, the Committee expresses its deep concern as to the procedure used, namely holding him in police custody, in order to carry out this control.
7. 1034. With regard to the alleged anti-union dismissals and suspension of contracts of Mavoungou Moukelia and Juvénal Mbogou, members of the CGSL and candidates for the election of staff delegates, the Committee notes the Government’s reply whereby the persons in question had been dismissed following the distribution of leaflets calling the other workers to pursue the strike, while negotiations had just been held and work had returned to normal. The Committee wishes to recall, in this regard, that freedom of association implies not only the right of workers and employers to form freely organizations of their own choosing, but also the right for the organizations themselves to pursue lawful activities for the defence of their occupational interests. While it has no detailed information concerning this specific case, the Committee considers that, as a general rule, the distribution of leaflets calling on workers to take industrial action is a legitimate trade union activity. The Committee therefore invites the Government to review the workers’ situation and seek their possible reinstatement in the enterprise.
8. 1035. As to the repression of the workers on Mr Taleyra’s job site suffered at the hands of the gendarmerie, the Committee notes the complainant organization’s allegations, as well as the Government’s reply, whereby the matter related to a disagreement resulting from a strike for which the period of notice had not been respected and to the failure to satisfy recurrent grievances contained in the list of claims of the enterprise LUTEXFO SOFORGA. Noting that, according to the Government, the employer’s favourable reply to the workers’ grievances helped to ease tensions and that calm was re-established, the Committee considers that this matter does not call for further examination unless the complainant organization wishes to provide more detailed information.