Informe provisional - Informe núm. 351, Noviembre 2008

1. 1313. The complaint is contained in communications dated 10 and 23 July 2007 from the Organization of African Trade Union Unity (OATUU) and the International Trade Union Confederation (ITUC). In a communication dated 24 July 2007, Public Services International (PSI) associated itself with the complaint.
2. 1314. In the absence of a response from the Government, the Committee has had to defer its consideration of the case on two occasions. At its June 2008 session [see 350th Report, para. 10], the Committee issued an urgent appeal to the Government indicating that, in accordance with the procedural rule set out in paragraph 17 of its 127th Report approved by the Governing Body, it could present a report on the substance of the case at its next session, even if the observations or information had not been received in due time. To date, the Government has not sent any information.
3. 1315. Chad 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), the Workers’ Representatives Convention, 1971 (No. 135), and the Labour Relations (Public Service) Convention, 1978 (No. 151).

A. The complainants’ allegations

1. 1316. In a communication dated 10 July 2007, the OATUU indicated that one of its affiliated organizations, the Union of Trade Unions of Chad (UST), had established an inter-union association with four other unions in Chad with a view to engaging in collective bargaining with the authorities, in accordance with the provisions of ILO Conventions Nos 87 and 98. However, in the light of the Government’s refusal to hold talks and negotiate, the trade unions staged a strike on 2 May 2007. Consequently, the Government filed a petition with the administrative chamber of the Supreme Court of Chad for the suspension of the activities of the inter-union association and its dissolution. In a statement of defence dated 2 July 2007 to the administrative court (a copy of which is provided by the complainant), the inter-union association requested the court to declare itself incompetent to hear the case. However, even before the court had taken a decision, the Government adopted Decree No. 019/PR/PM/MFPT/SG/DTSS/2007 of 4 July 2007 (a copy of which is also provided by the complainant) refusing recognition of the inter-union association on the grounds that it lacked legal status.
2. 1317. According to the complainant, this decree constitutes a flagrant violation of Convention No. 87 in so far as establishing an inter-union group is the only way that trade unions and their members in countries where there are multiple unions can act collectively to defend their interests. The OATUU points out that such inter-union associations have been established in several countries in Africa.
3. 1318. In a communication dated 23 July 2007, the ITUC indicates that a strike notice was filed on 19 March 2007 by the inter-union association comprising the UST (an organization affiliated to the ITUC), the Union of Teachers of Chad (SET), the Union of Lecturers and Researchers (Synecs), the National Union of Primary School Teachers of Chad (SNIT) and the Independent Union of Public Officials of Chad (SAAAT). It called for a review of the public service pay scale, a rise in the minimum wage and an increase in retirement benefits and family allowances to reflect the cost of living. This notice led to the staging of an indefinite strike in the public sector from 2 May 2007. Following some proposals by the Government, which fell short of the expectations of all but one of the inter-union association’s member organizations (which suspended its strike action), the negotiations were interrupted and the strike went ahead.
4. 1319. The ITUC indicates that multiple violations of Conventions Nos 87 and 98 have been observed since that time. Workers involved in the strike were allegedly pressured by the authorities, who made the resumption of negotiations conditional upon the lifting of the strike. Mr Djibrine Assali, Secretary-General of the UST, had his passport confiscated on 27 May 2007 while preparing to board a flight to Geneva to attend the International Labour Conference. According to the ITUC, despite the ILO’s involvement in his petition, Mr Assali has apparently not yet been given back his passport. In addition, the ITUC objects to the fact that, on 5 June 2007, the security forces (police and gendarmerie) stormed the Labour Exchange and barricaded its entrance and occupied the head office of the SET for approximately ten days, making it impossible for workers to gain access to the building. The ITUC indicates that it has repeatedly alerted the authorities to its concern over the deterioration of trade union rights in Chad.
5. 1320. The ITUC also objects to Decree No. 019/PR/PM/MFPT/SG/DTSS/2007 of 4 July 2007 “refusing official recognition of the inter-union association in the absence of legal status” which was adopted by the Government on the grounds that there was no receipt to prove that the statutes of the inter-union association and the list of its officials had been filed at a prefecture and also on the grounds that trade union groupings that fail to comply with the conditions and procedures under sections 294–302 of the Labour Code are not recognized. The complainant organization recalls however that the inter-union association is not an organization in itself but rather a “claims platform” comprising a national trade union confederation (the UST) and several trade unions representing professional sectors, all of which have been duly registered. The organization also recalls that, in an increasing number of countries, trade unions are grouping together under single umbrella associations such as the inter-union association of Chad which do not need to have their own legal status to exercise freedom of association in view of the fact that their component organizations are already registered.
6. 1321. The ITUC also indicates that a petition for the suspension of the activities of the inter-union association and its dissolution was filed on 26 June 2007 by the interregional labour inspector for the northern zone. However, according to the complainant, the inspector did not have the authority to file such a petition. The ITUC, referring to the UST’s defence statement dated 2 July 2007, considers furthermore that the administrative chamber of the Supreme Court has no jurisdiction over this case either. In the statement, the inter-union association points out that, under sections 299, 300 and 314 of the Labour Code, the competent authority is the social chamber of the Court of Appeal. Moreover, sections 69, 70 and 71 of Organic Law No. 60/PR/98 of 7 August 1998 on the organization and operation of the Supreme Court clearly determine which matters fall within the jurisdiction of the administrative court and make no mention of the matter in question. The inter-union association recalls furthermore that it is an ad hoc group composed of legally recognized trade unions, all of which have legal status. It does not claim to be a supraorganization or an organization in itself and the agreement to establish it, which was signed by the trade unions, can in no way be compared to the statutes of a union, which have to be filed under section 299 of the Labour Code. In conclusion, the inter-union association considers that the sole aim of the Government’s action is to prevent the trade unions that have signed up to the claims platform of the inter-union association from carrying out their legitimate activities and that these unions reserve the right to take action against the Government for violating section 306 of the Labour Code.
7. 1322. The ITUC indicates furthermore that these anti-union measures compound a legal situation that it considers to be in violation of the principles of Convention No. 87. The complainant states in particular that, during a strike in 2006, the Government drafted a bill regulating the right to strike in the public sector which contravenes several aspects of Convention No. 87. As a result of pressure from the unions, the text was not adopted. However, the complainant organization points out that the bill was once again brought up for discussion and was adopted on 9 May 2007 (Act No. 008/PR/2007). This act allegedly broadens the concept of essential services to include activities that are not essential in the strict sense of the term.
8. 1323. The complainant organization provides the list of public services deemed essential under section 19 of the act in question: air traffic control services; hospital services; water and electricity services; firefighting services; post and telecommunications services; television services; broadcasting services; the key services of the Ministry of Foreign Affairs and African Integration; the services of inter-prefectoral labour inspectorates; financial management services; slaughterhouse services; and the services provided by the Farcha Laboratory. Referring to the Digest of the Committee, the complainant organization points out that only some of the services listed should be deemed essential.

B. The Committee’s conclusions

1. 1324. The Committee deeply regrets that, despite the time that has elapsed since the presentation of the complaint, the Government has not replied to the serious allegations of the complainant organizations, despite the fact that it has been invited on several occasions, including by means of an urgent appeal, to present its comments and observations on the case. The Committee urges the Government to be more cooperative in the future.
2. 1325. Under these circumstances, in accordance with the applicable rule of procedure [see 127th Report, para. 17, approved by the Governing Body at its 184th Session], the Committee is bound to submit a report on the substance of the case without the information that it hoped to receive from the Government.
3. 1326. The Committee reminds the Government that the purpose of the whole procedure established by the International Labour Organization for examining allegations of violations of freedom of association is to ensure respect for trade union rights in law and practice. The Committee is confident that, while this procedure protects governments against unreasonable accusations, governments must on their side recognize the importance of formulating for objective examination detailed replies concerning the allegations brought against them [see First Report of the Committee, para. 31].
4. 1327. The Committee notes that the present case concerns the adoption of a decree refusing official recognition of an inter-union association and the petition to the administrative courts to dissolve that association, the storming of the Labour Exchange by the security forces and the occupation of union premises for several days making it impossible for workers to gain access, the confiscation of the passport of Mr Djibrine Assali, SecretaryGeneral of the Union of Trade Unions of Chad, preventing him from attending the International Labour Conference, and the adoption of an act broadening the concept of essential services to include public service activities that would not be considered essential in the strict sense of the term by the Committee on Freedom of Association.
5. 1328. The Committee is particularly concerned by the seriousness of the allegations in this case. The Committee notes the information provided by the complainant organizations, indicating that the UST established an inter-union association with four other trade unions in Chad, namely the SET, the Synecs, the SNIT and the SAAAT. This inter-union association was established for the purpose of engaging in collective bargaining with the authorities. It called for the review of the public service pay scale, a rise in the minimum wage and an increase in retirement benefits and family allowances to reflect the cost of living. However, given the Government’s refusal to engage in any form of dialogue, the inter-union association issued a strike notice on 19 March 2007. This notice led to the staging of an indefinite strike in the public sector from 2 May 2007. Following some proposals by the Government, which fell short of the expectations of all but one of the inter-union association’s members (which suspended its strike action), the negotiations were interrupted and the strike went ahead.
6. 1329. The Committee notes with concern the allegations regarding the various incidents and measures that followed the launching of the strike. In general, the Committee notes the allegations that the workers involved in the strike had been pressured by the authorities, who furthermore made the resumption of negotiations conditional upon the lifting of the strike. The Committee wishes to firmly point out that the right to strike is one of the essential means through which workers and their organizations may promote and defend their economic and social interests [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 522]. The Government should moreover ensure freedom from any influence or pressure which might affect the exercise of this right in practice. The Committee urges the Government to send its observations in this regard.
7. 1330. Furthermore, the Committee notes with deep concern the information that the authorities confiscated the passport of Mr Djibrine Assali, Secretary-General of the UST, while he was preparing to board a flight to Geneva on 27 May 2007 to attend the International Labour Conference, and that the document has not yet been returned to him. In this regard, the Committee notes that the matter was examined by the Credentials Committee at the 96th Session (June 2007) of the International Labour Conference [see Provisional Record No. 4C, paras 123–127]. The Committee observes that, according to the information provided by the Government to the Credentials Committee, Mr Assali’s passport had been confiscated because, for unknown reasons, he had presented at the airport his service passport with a mission order from his own organization instead of the official mission order issued by the Government, which was mandatory in this case. The Government indicated furthermore that the official mission order had been issued to him and that Mr Assali could recover his passport from the police. The Credentials Committee also indicated that it had requested both the Government representatives and the secretariat of the Committee to inform Mr Assali that he was free to travel to Geneva, but that Mr Assali had explained that his passport had not yet been returned and that his expenses, although approved, had not been paid to him, upon a specific order of the Minister. The Committee notes that the Credentials Committee had expressed its puzzlement in respect of the contradictory information provided regarding the freedom of movement of Mr Assali.
8. 1331. The Committee draws the Government’s attention to the importance which it attaches to the principle set out in the Universal Declaration of Human Rights that everyone has the right to leave any country, including his own, and to return to his country. The Committee strongly reiterates the special importance it attaches to the right of workers’ and employers’ representatives to attend and to participate in meetings of international workers’ and employers’ organizations and of the ILO. It is therefore important that no delegate to any organ or Conference of the ILO, and no member of the Governing Body, should in any way be hindered, prevented or deterred from carrying out their functions or from fulfilling their mandate [see Digest, op. cit., paras 122, 761 and 766]. The Committee urges the Government to provide an explanation with regard to the confiscation of the passport of Mr Assali, Secretary-General of the UST, to take all the necessary measures to return the document to him and to ensure that he is able to exercise full freedom of movement in carrying out his mandate as a trade union official.
9. 1332. The Committee also notes with concern the allegations that, on 5 June 2007, the security forces stormed the Labour Exchange and barricaded its entrance, and occupied the head office of the SET for approximately ten days, blocking workers’ access to the building. First, the Committee wishes to recall that, in cases of strike movements, the authorities should resort to the use of force only in grave situations where law and order is seriously threatened [see Digest, op. cit., para. 644]. The Committee recalls that the inviolability of trade union premises is a civil liberty which is essential to the exercise of trade union rights and that the occupation of trade union premises by the security forces, without a court warrant authorizing such occupation, is a serious interference by the authorities in trade union activities. The Committee also recalls that activities, such as attacks carried out against trade union premises and threats against trade unionists, create among trade unionists a climate of fear which is extremely prejudicial to the exercise of trade union activities and that the authorities, when informed of such matters, should carry out an immediate investigation to determine who is responsible and punish the guilty parties [see Digest, op. cit., paras 178, 179 and 184]. Accordingly, the Committee urges the Government to carry out an investigation and to explain without delay the intervention of the security forces at the Labour Exchange on 5 June 2007 and the occupation for approximately ten days of the head office of the SET, making it impossible for workers to access the premises.
10. 1333. The Committee also notes that the complainant organizations object to Decree No. 019/PR/PM/MFPT/SG/DTSS/2007 of 4 July 2007 “refusing official recognition of the inter-union association in the absence of legal status” which was adopted by the Government on the grounds that there was no receipt to prove that the statutes of the interunion association and the list of its officials had been filed at a prefecture and also on the grounds that trade union groupings that fail to comply with the conditions and procedures under sections 294–302 of the Labour Code are not recognized. Furthermore, the Committee notes that a petition to suspend the activities of and dissolve the inter-union association was brought on 26 June 2007 by the interregional labour inspector for the northern zone before the administrative chamber of the Supreme Court but that the ministerial decree had been adopted even before any decision had been made. The Committee also notes that, according to the complainants, the inspector did not have the authority to file such a petition and that the administrative chamber of the Supreme Court has no jurisdiction over cases of this nature, an authority which is reserved under sections 299, 300 and 314 of the Labour Code for the social chamber of the Court of Appeal.
11. 1334. The Committee notes that, according to the complainant organizations, the inter-union association is not an organization in itself but rather a “claims platform” consisting of a national trade union confederation (the UST) and several trade unions representing professional sectors, all of which have been duly registered in accordance with the law. The Committee also notes the allegation that this decree is a flagrant violation of Convention No. 87 in so far as establishing an inter-union group is the only way that trade unions and their members in countries where there are multiple unions can act collectively to defend their interests. Furthermore, in an increasing number of countries – particularly in Africa – trade unions are grouping together under single umbrella associations which do not need to have their own legal status to exercise freedom of association in view of the fact that their component organizations are already registered. Also, the Committee notes the points made in the statement of defence of 2 July 2007 in which the inter-union association recalls that it is an ad hoc group composed of legally recognized trade unions, all of which have legal status. The inter-union association does not claim to be a supraorganization or an organization in itself and it indicates that the agreement to establish it, which was signed by the trade unions, can in no way be compared to the statutes of a union, which must be filed under section 299 of the Labour Code. In conclusion, the inter-union association considers that the sole aim of the Government’s action is to prevent the trade unions that have signed up to the claims platform of the interunion association from carrying out their legitimate activities and that these unions reserve the right to take action against the Government for violating section 306 of the Labour Code.
12. 1335. In this regard, the Committee observes that the action of the Government is prejudicial to the development of normal and healthy labour relations because such conduct is likely to violate the freedom of each representative organization to organize freely its own activities and its own programme of action, in accordance with its own statutes. The Committee also wishes to recall the importance of the principle that trade unions should have the right, through collective bargaining or other lawful means, to seek to improve the living and working conditions of those whom the trade unions represent. The public authorities should refrain from any interference which would restrict this right or impede the lawful exercise thereof. Any such interference would appear to infringe the principle that workers’ and employers’ organizations should have the right to organize their activities and to formulate their programmes [see Digest, op. cit., para. 881]. The Committee expects that the Government will in the future ensure full respect for the principles recalled above relating to the freedom of action of representative organizations and collective bargaining and requests it to ensure that trade unions will not in any way be restricted with regard to the measures that they may decide to undertake jointly to defend the interests of workers.
13. 1336. The Committee notes the allegations that Act No. 008/PR/2007 of 9 May 2007 regulating the right to strike in the public service in Chad broadens the concept of essential services to include activities that are not essential in the strict sense of the term. The Committee observes that, according to section 18 of the act in question, a copy of which is provided by the complainant organizations, “a compulsory minimum service is guaranteed in the context of essential public service activities, the interruption of which would endanger the life, personal safety or health of the whole or part of the population”. Furthermore, section 19 of the act contains a list of public services that are deemed essential, namely: air traffic control services; hospital services; water and electricity services; firefighting services; post and telecommunications services; television services; broadcasting services; the key services of the Ministry of Foreign Affairs and African Integration; the services of interprefectoral labour inspectorates; financial management services; slaughterhouse services; and the services provided by the Farcha Laboratory. The Committee observes that the complainant organizations consider that only certain services listed in section 19 of the act should be considered essential. First, the Committee would like to recall that the right to strike may be restricted or prohibited: (1) in the public service only for public servants exercising authority in the name of the State; or (2) in essential services in the strict sense of the term (that is, services the interruption of which would endanger the life, personal safety or health of the whole or part of the population. Second, the Committee has repeatedly pointed out that the following services may be considered to be essential services: the hospital sector; electricity services; water supply services; telephone services; firefighting services; and air traffic control services. On the other hand, the Committee has also indicated that the following services do not constitute essential services in the strict sense of the term: radio and television; banks; and postal services [see Digest, op. cit., paras 576, 582, 585 and 587]. Consequently, the Committee requests the Government to take the necessary measures to review, in consultation with the social partners concerned and in the light of the principles recalled above, its legislation relating to the determination of essential services. The Committee draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to the legislative aspects of this case.
14. 1337. In the light of the foregoing, the Committee reiterates its deep concern concerning the serious allegations in this case and the absence of any reply from the Government. The Committee urges it to provide its observations without delay so as to enable the objective consideration of each of the issues raised.