Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 354, Junio 2009

1. 1086. The Committee last examined this case at its November 2008 meeting and submitted an interim report to the Governing Body [see 351st Report, paras 1313–1338, approved by the Governing Body at its 303rd Session].
2. 1087. The Government sent its observations in a communication dated 17 February 2009.
3. 1088. 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. Previous examination of the case

1. 1089. In its previous examination of the case in November 2008, the Committee drew the Governing Body’s attention to this case due to the seriousness and urgency of the issues raised in it and made the following recommendations [see 351st Report, para. 1338]:
   • (a) The Committee expresses its deep concern at the particularly serious nature of the allegations in this case and the absence of any reply from the Government. The Committee urges the Government to provide its observations without delay so as to enable the objective consideration of each of the issues raised.
   • (b) The Committee urges the Government to provide an explanation with regard to the confiscation of the passport of Mr Assali, General Secretary 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.
   • (c) 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 about ten days of the head office of the SET, making it impossible for workers to gain access to the building.
   • (d) 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.
   • (e) The Committee requests the Government to take the necessary measures to review, in consultation with the social partners concerned, 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.

B. The Government’s reply

1. 1090. In a communication dated 17 February 2009, the Government expresses its surprise at the comment that it has not provided a reply to the complaint, since it considers that it has in fact replied by means of a communication dated 18 March 2008, a copy of which is provided.
2. 1091. With regard to the confiscation of the passport of Mr Djibrine Assali, General Secretary of the Union of Trade Unions of Chad (UST), the Government indicates that it has already explained, on several occasions, that, like the other members of the delegation of Chad called upon to attend the International Labour Conference, Mr Djibrine Assali received a mission order which he used to obtain his travel documents. However, even though he merely had to present this mission order at the time of boarding, Mr Assali instead chose to present a different unofficial mission order, which led to his passport being confiscated by airport security. The Government states that Mr Assali has been motivated by a desire for confrontation since 2007, when he distanced himself from the other members of the Chad delegation during a mission to Addis Ababa in April of that year and organized the long strike of public servants which began on 2 May of the same year. The Government further indicates that Mr Assali participated in the work of the Labour and Social Affairs Commission in Addis Ababa in April 2008 even though he had not been appointed by his organization and attacked the Deputy General Secretary, who had in fact been put forward by his organization. The Government explains that, despite his prolonged absence from the country, Mr Assali has always been included on the list of members of the Chad delegation and had his expenses paid insofar as he has been appointed by his organization. According to the Government, the explanation provided by the Minister of Labour to the representatives of the International Trade Union Confederation (ITUC) concerning the untruthful allegations made by Mr Assali certainly took them by surprise.
3. 1092. According to the Government, Mr Assali has always concealed his desire to devote himself to a political struggle but finally revealed this desire by resigning as General Secretary of the UST contrary to all expectations.
4. 1093. With regard to the collective bargaining initiated between the trade union organizations and the authorities following the public sector strike launched on 2 May 2007, the Government indicates that these negotiations were held in several contexts. The initial negotiations were held within the Tripartite Committee responsible for negotiating improvements to conditions of employment set up by the Prime Minister and involved the UST, the Union of Teachers of Chad (SET), the National Union of Primary School Teachers of Chad (SNIT), and the Independent Union of Public Officials of Chad (SAAAT). Negotiations were then held in the context of a Tripartite Committee responsible for negotiating with trade union organizations, created by Prime Minister’s Decree No. 1481/PR/PM/MFPT/2007 of 6 June 2007, which were subsequently extended to include three other trade union organizations which were not members of the inter-union association, which had until then been negotiating with the authorities, namely the Free Confederation of Workers of Chad (CLTT), the Trade Union Confederation of Chad (CST), and the Trade Union Confederation of Workers of Chad (CSTT), which shared the same demands.
5. 1094. The Government indicates that during the negotiations it presented the economic and budgetary arguments necessary to justify its proposals, but that these proposals were rejected by the trade union organizations on the basis that they were insufficient. It further indicates that its request made to the trade unions to lift the call for strike action was justified by its desire to negotiate peacefully and in the interests of all. The Government also explains that it informed the partners of its willingness to negotiate with all trade unions, but that the inter-union association withdrew from the negotiations at the meeting of the Tripartite Negotiations Committee held on 24 May 2007 and requested the exclusion from the negotiations of those organizations which were not members of the inter-union association, as well as the repeal both of Act No. 008/PR/2007 regulating the exercise of the right to strike in public services and of a circular concerning the withholding of the wages of striking workers. The Government indicates that, despite a final invitation from the Government to continue negotiations based on a final proposal, it was notified by the organizations comprising the inter-union association, by letter dated 19 June 2007, of their refusal to participate in the negotiations. However, the CLTT, CST and CSTT replied to the invitation and on 20 June 2007, they signed a Memorandum of Understanding (MOU) with the authorities. According to the Government, this MOU remains open to signature by the other trade union organizations and also provides for the possibility of negotiating on the specific points contained in the lists of grievances presented by the UST, SET and CLTT.
6. 1095. The Government therefore expresses its regret at the radical position and negative attitude adopted by the trade union organizations which have not signed the MOU, in particular their lack of respect for decisions taken by the Head of State, their refusal to negotiate within a broader framework and their provision of false information to the media and to international trade union organizations about so-called violations of freedom of association. This attitude, which the Government describes as a drift led by the UST which disregards national laws, has led to the SET dissociating itself from the other organizations.
7. 1096. With regard to the petition for the suspension of the activities of the inter-union association and its dissolution, the Government explains that following an investigation, the labour inspectorate noted that the inter-union association had not been established in accordance with the procedures laid down in the Labour Code, which requires that the statutes and the list of officials be filed at the prefecture and a receipt of such obtained. Consequently, the Ministry of the Public Service and Labour adopted a decree refusing official recognition of the inter-union association in the absence of legal status. In accordance with the procedure laid down in the Labour Code, the labour inspector then made an urgent application to the social chamber of the Court of Appeal of N’Djamena for an interim ruling on the legal status of the inter-union association. The Government indicates that it is still prepared to continue negotiations with the workers’ organizations which have not signed the MOU of 20 June 2007, which was adopted on an individual basis, based on the achievements of that MOU.
8. 1097. The Government refers to the principles laid down by the Committee on Freedom of Association on the recognition of a trade union organization through official registration and to the Labour Code, which states that, “Lawfully established trade unions may form central trade union organizations freely. These organizations may call themselves unions or confederations, based on the groupings and titles which they decide to adopt. The establishment and reorganization of these groups shall be subject to the same procedures and conditions applicable to the establishment and reorganization of trade unions themselves”. The Government recalls that trade union rights should therefore be exercised with respect for law and order and the authority of the State. Finally, the Government indicates that the petition filed with the Supreme Court by Mr Assali, on behalf of the inter-union association, was rejected by the Court on the grounds that Mr Assali did not have the authority to lodge such action.
9. 1098. With regard to Act No. 008/PR/2007 regulating the exercise of the right to strike in public services, the Government indicates that this Act has filled a legal void in the control of strikes in the public sector. It recalls that the right of public servants to organize is recognized but that this right must be exercised within the framework of the law. It further states that essential services are determined based on the realities of the country, taking into account the Government’s duty to ensure public safety in the face of the state of war and insecurity imposed by the outside world. The Government states that it has taken into account the principle laid down by the Committee that, “What is meant by essential services in the strict sense of the term depends to a large extent on the particular circumstances prevailing in a country”.

C. The Committee’s conclusions

1. 1099. The Committee recalls that the present case concerns the adoption of a decree refusing official recognition of an inter-union association and petition to the administrative courts for the dissolution of that association, the storming of the Labour Exchange by the security forces and occupation of union premises for several days preventing workers from gaining access, confiscation of the passport of Mr Djibrine Assali, General Secretary of the UST, preventing him from attending the International Labour Conference, and the adoption of an act broadening the concept of essential services to include activities that would not be considered essential in the strict sense of the term by the Committee on Freedom of Association. In its previous examination of the case, the Committee expressed its concern at the serious nature of the allegations.
2. 1100. The Committee notes the explanation provided by the Government with regard to certain aspects of the case. It further notes that the communication dated 18 March 2008 to which the Government refers, concerns its reply to the observations presented by the ITUC in the context of the procedure for examining the application of ratified Conventions before the Committee of Experts on the Application of Conventions and Recommendations and that, in the absence of a specific request by the Government, this communication was therefore disregarded in the examination of this complaint.
3. 1101. With regard to the matter referred to in paragraph (b) of its recommendations concerning the confiscation of the passport of Mr Djibrine Assali, General Secretary of the UST, the Committee notes the explanation provided by the Government which reiterates the Government’s submission during the examination of the matter by the Credentials Committee at the 96th Session (June 2007) of the International Labour Conference (see Provisional Record No. 4C, paras 123–127) and which has already previously been noted by the Committee. The Committee notes that, according to the Government, Mr Assali, like the other members of the Chad delegation called upon to attend the International Labour Conference, received a mission order which he used to obtain the necessary travel documents. However, even though he merely had to present this mission order at the time of boarding, Mr Assali instead chose, for unknown reasons, to present a different unofficial mission order, which led to his passport being confiscated by airport security. The Committee notes the Government’s statement that Mr Assali’s attitude is symptomatic of his desire for confrontation demonstrated since 2007, as well as the examples given by the Government to illustrate this point. Finally, the Committee notes the indication that, against all expectations, Mr Assali resigned as General Secretary of the UST in July 2008.
4. 1102. In its previous examination of this case, the Committee had recalled 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 of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, paras 761 and 766]. The Committee previously noted the Government’s statement to the Credentials Committee in 2007 that Mr Assali could recover his passport from the police. While noting that Mr Assali, according to the Government, no longer carries out trade union activities within the UST, the Committee requests the Government to indicate whether his passport has actually been returned. Furthermore, the Committee urges the Government to guarantee in future that all trade union leaders in the country enjoy full freedom of movement when carrying out their mandate, in particular the freedom to participate in trade union activities organized abroad and in ILO meetings without being hindered in any way.
5. 1103. The Committee recalls that it previously noted with concern the allegations made by the complainant organizations regarding the various incidents and measures that followed the launching of the strike of 2 May 2007, in particular the fact 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. In this regard, the Committee notes the Government’s statement that its request made to the trade unions to lift the call for strike action was motivated by its desire to negotiate peacefully and in the interests of all. The Committee wishes to recall once again 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, op. cit., para. 522], and that in these circumstances the Government should ensure that no influence or pressure can affect the exercise of this right in practice.
6. 1104. The Committee previously noted with concern the allegations made by the complainant organizations 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. It urged the Government to carry out an investigation and to explain without delay the intervention of the security forces. The Committee notes with deep regret that the Government has not provided any information on this matter referred to in paragraph (c) of its recommendations. The Committee once again 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. Actions such as attacks carried out against trade union premises and threats against trade unionists create among trade unionists a climate of fear which is prejudicial to the exercise of trade union activities, and 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 179 and 184]. Consequently, the Committee once again urges the Government to carry out an investigation without delay into the allegations concerning 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, and to provide an explanation in this regard.
7. 1105. The Committee notes the explanation provided by the Government concerning the negotiations held following the strike of 2 May 2007 in the public sector. The Committee notes in particular the indication that negotiations were held in several contexts with the organizations comprising the inter-union association which had until then been negotiating with the authorities, namely the UST, SET, SNIT and SAAT, and that these negotiations were subsequently extended to include three other trade union organizations which were not members of the inter-union association, namely the CLTT, CST, and CSTT, which shared the same demands. The Committee notes that the Government considers that during the negotiations, it presented the economic and budgetary arguments necessary to justify its proposals but that the trade union organizations nonetheless rejected the proposals on the basis that they were insufficient. The Committee notes the indication that the trade unions comprising the inter-union association abandoned the negotiations and requested the exclusion from the negotiations of those organizations which were not members of the inter-union association, as well as the repeal both of Act No. 008/PR/2007 regulating the exercise of the right to strike in public services and of a circular concerning the withholding of the wages of striking workers. However, according to the Government, the CLTT, CST and CSTT (none of which are members of the inter-union association) replied to a final invitation from the Government, which led to the signature, on 20 June 2007, of a MOU which remains open to signature by the other trade union organizations and also provides for the possibility of negotiating on the specific points contained in the lists of grievances presented by the UST, SET and CLTT.
8. 1106. The Committee observes that the Government regrets the radical position and negative attitude adopted by the trade union organizations which have not signed the MOU, in particular their lack of respect for decisions taken by the Head of State, their refusal to negotiate within a broader framework and their provision of false information to the media and to international trade union organizations about so-called violations of freedom of association. This attitude has led to the SET dissociating itself from other organizations.
9. 1107. The Committee holds the view that collective bargaining in the public service certainly has special characteristics, given that the State’s margin for manoeuvre is closely linked to its tax revenue, but it is at the same time ultimately responsible for the allocation of these resources in its role as employer. The Committee considers that, in this case, it is not competent to express a view on the strength of the economic arguments presented by the Government to justify its position in the collective bargaining. On the other hand, the Committee is competent to remind the Government, in accordance with the principles of promoting collective bargaining contained in Conventions Nos 98 and 151 ratified by Chad, of the need for the authorities to give preference as far as possible to collective bargaining in determining the conditions of employment of public servants. In this sense, and noting that almost two years have passed since the MOU was signed on 20 June 2007, the Committee requests the Government to indicate any concrete steps taken to hold fresh negotiations with the workers’ organizations which have not signed the MOU in order to find a solution to the pending issues that is acceptable to all parties. In this regard, the Committee recalls the importance which it attaches to the obligation to negotiate in good faith for the maintenance of the harmonious development of labour relations [see Digest, op. cit., para. 934], which depend primarily on the attitudes of the parties towards each other and on their mutual confidence.
10. 1108. With regard to the Government’s adoption of 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”, the Committee noted, in its previous examination of the case, the allegations of the complainant organizations, 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 noted 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 had 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. In this regard, the Committee notes the Government’s indication that the labour inspector did indeed make an urgent application to the social chamber of the Court of Appeal of N’Djamena for an interim ruling on the legal status of the inter-union association.
11. 1109. The Committee also previously noted the position of the complainant organizations that 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 therefore noted the information provided by the inter-union association that it was an ad hoc group composed of legally recognized trade unions, all of which had legal status. The inter-union association did not claim to be a supraorganization or an organization in itself and it indicated that the agreement to establish it, which had been signed by the trade unions, could 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 considered that the sole aim of the Government’s action was to prevent the trade unions that had signed up to the claims platform of the inter-union association from carrying out their legitimate activities.
12. 1110. On this matter, the Committee notes the Government’s explanation that the labour inspectorate merely noted, following an investigation, that the inter-union association which was negotiating with the authorities had not been established in accordance with the procedures laid down in the Labour Code, which requires that the statutes and list of officials be filed at the prefecture and a receipt for such obtained. Consequently, the Ministry of the Public Service and Labour adopted a decree refusing official recognition of the inter-union association in the absence of legal status. In accordance with the procedure laid down in the Labour Code, the labour inspector then made an urgent application to the social chamber of the Court of Appeal of N’Djamena for an interim ruling on the legal status of the inter-union association. The Committee further notes that the Government refers to the principles which it has laid down on the recognition of a trade union organization through official registration and to the Labour Code, which states that, “Lawfully established trade unions may form central trade union organizations freely. These organizations may be called unions or confederations, according to the groupings and titles which they wish to adopt. The establishment and reorganization of these groups shall be subject to the same procedures and conditions applicable to the establishment and reorganization of trade unions themselves”.
13. 1111. While noting the Government’s statement on the need to exercise trade union rights in accordance with the law, the Committee can, however, only reiterate its previous conclusions in which it observed that the action of the Government in the present case, putting aside any legal interpretation, is prejudicial to the development of normal and healthy labour relations because such conduct is likely to violate the freedom, established in Convention No. 87, of each representative organization to organize freely its own activities and its own programme of action, in accordance with its own statutes. The Committee once again draws the Government’s attention to 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]. Observing that the sole objective of the inter-union association was to gather together on an informal basis, without claiming legal status of its own, several duly registered trade unions which share a common position on specific points, the Committee requests the Government to ensure in future that trade union organizations will not be restricted with regard to any action that they may decide to take jointly to defend the interests of workers.
14. 1112. Finally, with regard to the matter referred to in paragraph (e) of its recommendations concerning Act No. 008/PR/2007 of 9 May 2007, regulating the exercise of the right to strike in public services, the Committee recalls that it previously observed that section 18 of this Act provides that, “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”. Section 19 of the Act lists the 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 inter-prefectural labour inspectorates; financial management services; slaughterhouse services; and the services provided by the Farcha Laboratory.
15. 1113. The Committee notes the Government’s brief indication that Act No. 008/PR/2007 has filled a legal void in the control of strikes in the public sector and that essential services are determined in this Act based on the realities of the country, taking into account the Government’s duty to ensure public safety in the face of the state of war and insecurity imposed by the outside world. The Government states that it has therefore taken into account the principle laid down by the Committee that, “What is meant by essential services in the strict sense of the term depends to a large extent on the particular circumstances prevailing in a country”.
16. 1114. In this regard, the Committee wishes to recall firstly that the right to strike is an intrinsic corollary to the right to organize protected by Convention No. 87 [see Digest, op. cit., para. 523]. It further recalls the principle that, as an exception to the general principle of the right to strike, the essential services in which this principle may be entirely or partly waived should be defined restrictively, and therefore should include only those services the interruption of which would endanger the life, personal safety or health of the whole or part of the population. For the sectors listed which are not essential in the strict sense of the term, the Committee recalls that a minimum service could be appropriate as a possible alternative in situations in which a substantial restriction or total prohibition of strike action would not appear to be justified and where, without calling into question the right to strike of the large majority of workers, one might consider ensuring that users’ basic needs are met or that facilities operate safely or without interruption. Furthermore, the determination of minimum services and the minimum number of workers providing them should involve not only the public authorities, but also the relevant employers’ and workers’ organizations. This not only allows a careful exchange of viewpoints on what in a given situation can be considered to be the minimum services that are strictly necessary, but also contributes to guaranteeing that the scope of the minimum service does not result in the strike becoming ineffective in practice because of its limited impact, and to dissipating possible impressions in the trade union organizations that a strike has come to nothing because of over-generous and unilaterally fixed minimum services. Finally, the Committee recalls that what is meant by essential services in the strict sense of the term depends to a large extent on the particular circumstances prevailing in a country. Moreover, this concept is not absolute, in the sense that a non-essential service may become essential if a strike lasts beyond a certain time or extends beyond a certain scope, thus endangering the life, personal safety or health of the whole or part of the population [see Digest, op. cit., paras 582, 607 and 612].
17. 1115. Consequently, the Committee requests the Government to take the necessary steps to review, in consultation with the social partners concerned, its legislation relating to the exercise of the right to strike in public services to ensure the determination of a minimum service in accordance with the principles of freedom of association recalled above. The Committee draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to the legislative aspects of this case.