Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 353, Marzo 2009

1. 562. The complaint is contained in communications dated 8 June and 7 December 2007 sent by the Confederation of Workers of Comoros (CTC).
2. 563. The Government sent partial information on the allegations made in a communication dated 2 February 2009.
3. 564. Comoros 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. 565. In its communications dated 8 June and 7 December 2007, the CTC alleges that teachers and primary school teachers on the island of Anjouan, one of the three islands of the Union of Comoros, were replaced and dismissed in February 2007 due to their participation in a strike. The complainant organization notes that a week after the strike was staged the striking teachers were replaced by contract workers. On the same day, the Council of Ministers declared the strike illegal and dismissed 259 strikers. According to the complainant organization, the dismissed workers included all teachers’ union officials, including a number of leaders of the CTC who are teachers, in particular Mr Soulaimana Combo, Deputy Secretary-General of the CTC, Mr Aloba, Regional Secretary of the National Union of Comorian Primary School Teachers, and Ms Baraka Anli, member of the regional office of the National Union of Comorian Teachers. The complainant organization adds that Ms Anli was obliged to leave the island of Anjouan with her husband and children in September 2007 due to persecution and harassment by the island’s Government. She is currently residing on the island of Grande Comore.
2. 566. According to the CTC, the wages of the striking teachers were withheld from January 2007, one month before the strike was staged, in order to pay the wages of the replacement workers. When the new academic year started in October 2007, all the teachers were reinstated but without receiving their wages which had not been paid since January 2007, with the exception of the three trade union representatives mentioned above who are still unemployed. The complainant organization indicates that the island’s Government still intends not to pay the wages owed for this period. The complainant organization emphasizes that the strike was carried out in accordance with the legal procedures, including the one month’s notice stipulated by the national legislation, and indicates that the reason for the strike, which was held by all teachers, was the non-payment of two months’ wages. The complainant organization explains that the island’s Government interpreted it as a political strike called to support the central Government’s campaign for national unity.
3. 567. Furthermore, according to the complainant organization, the island’s Government and the government of the Union have refused to recognize the representation and bargaining rights of the National Union of Port Workers (SNTP), which represented the port workers of the Comoros Cargo Handling Company (COMACO), as was the case in January 2007, when the government of the Union refused to negotiate with the SNTP. The complainant organization explains that the purpose of the strike was to protect the employment of the workers during the transfer of competences between the public enterprise COMACO and the private company Al-Marwan which was to take over the handling of the port. The complainant organization indicates that the SNTP wanted to include a clause in the concession agreement obliging the new enterprise to employ the former workers of COMACO. As soon as the strike was carried out, workers were hired to carry out the handling work at the port while the military blocked the entrance. No negotiations were held and 405 dockers and port workers were dismissed and prohibited from entering the workplace, including all the trade union members and leaders, in particular the Secretary-General, Mr Bacar Soilihi. The workers concerned filed a complaint with the court of Moroni which ruled in their favour and granted them limited compensation, but the port authority lodged an appeal against this decision. According to the complainant organization, Al-Marwan has not employed any of the dismissed workers.
4. 568. In its communication dated 8 June 2007, the complainant organization indicates that the staff of Ma-Mwé, a Comoros water and electricity company, drew up a list of claims after observing a policy of questioning workers’ social rights and other benefits. The complainant organization reports that workers were suspended for signing the list of claims. The CTC indicates that the imposition of disciplinary sanctions is common practice in this company since it was ordered to pay costs for the same reason in 2006. In a communication dated 7 December 2007, the complainant organization also indicates that the workers targeted by the dismissal note have all been reinstated in their duties. However, it emphasizes that, despite the regulatory provision which stipulates that a disciplinary board must be convened or prior warning given if an offence has been observed, the company directors have a tendency to dismiss all workers at their will without initiating disciplinary proceedings.
   • B. The Government’s reply
5. 569. In a communication dated 2 February 2009, the Government indicates that the alleged cases of violation of freedom of association have been redressed. In particular, the three trade union leaders from the island of Anjouan were reinstated in March 2008, when the central authorities of the Union of Comoros took control over the island. With regard to the dockers, the Government indicates that they have won the court case and have been compensated pursuant to the court ruling.

C. The Committee’s conclusions

1. 570. The Committee notes that the present case concerns allegations of violations of the right to strike, the right to collective bargaining and freedom of expression.
2. 571. The Committee notes the allegations made by the complainant organization that teachers on the island of Anjouan, including trade union leaders, were dismissed following their participation in a general strike. According to the CTC, the strike was carried out due to the non-payment of wages and in accordance with the legal procedures. It considers that the island’s Government interpreted the strike as political action. The complainant organization indicates that a week after the start of the strike, the striking teachers were replaced by contract workers and the Council of Ministers declared the strike illegal and dismissed 259 strikers, including certain leaders of the CTC. According to the CTC, the wages of the striking teachers were withheld from January 2007, one month before the strike, in order to pay the wages of the replacement workers. At the start of the new academic year in October 2007, all the teachers were reinstated, but without recovering their unpaid wages from January 2007, with the exception of Mr Soulaimana Combo, Deputy Secretary-General of the CTC, Mr Aloba, Regional Secretary of the National Union of Comorian Primary School Teachers, and Ms Baraka Anli, member of the regional office of the National Union of Comorian Teachers, who are still unemployed. The Committee notes that, according to the Government, the three trade union leaders from the island of Anjouan were reinstated in March 2008, when the central authorities of the Union of Comoros took control over the island.
3. 572. The Committee also notes the allegations of violation of the right to strike and the right to collective bargaining in the port sector. According to the complainant organization, the authorities refused to engage in collective bargaining with the SNTP, which represented the port workers of the COMACO in the context of the transfer of competences from a public enterprise to the private company Al-Marwan. The SNTP wanted to include a clause in the concession agreement obliging the new enterprise to employ the former workers of COMACO. As soon as the strike was staged, workers were hired to carry out the cargo handling work at the port while the military blocked the entrance. No negotiations were held and 405 dockers and port workers were dismissed and prevented from accessing the workplace, including all the trade union members and leaders, in particular the Secretary-General, Mr Bacar Soilihi. The workers concerned lodged a complaint with the court of Moroni, which ruled in their favour and granted them limited compensation, but the port authority appealed against this decision. According to the complainant organization, Al-Marwan has not reinstated any of the dismissed workers. The Committee notes the Government’s indication that the dockers have won the court case and have been compensated pursuant to the court ruling.
4. 573. The Committee reminds the Government that neither the teaching sector nor the port sector are essential services in the strict sense of the term in which the right to strike may be restricted, though the obligation to maintain a minimum service could be introduced in these sectors. With regard to the strike of February 2007 in the teaching sector, the Committee is bound to emphasize that protest strikes in a situation where workers have for many months not been paid their salaries by the Government are legitimate trade union activities [see Digest of decisions and principles of the Committee on Freedom of Association, fifth edition, 2006, para. 537]. Furthermore, the Committee considers that, while strikes of a purely political nature do not fall within the scope of the principles of freedom of association [see Digest, op. cit., para. 528], trade unions should be able to have recourse to protest strikes, in particular where aimed at criticising the Government’s economic and social policies, and reminds the Government that the occupational and economic interests which workers defend through the exercise of the right to strike do not only concern better working conditions or collective claims of an occupational nature, but also the seeking of solutions to economic and social policy questions and problems facing the undertaking which are of direct concern to the workers [see Digest, op. cit., paras 526 and 529]. Consequently, the Committee considers that the two strikes in question are legitimate trade union activities.
5. 574. The Committee notes that the strikers in the teaching and port sectors were replaced by contract workers. In this regard, the Committee reminds the Government that the hiring of workers to break a strike in a sector which cannot be regarded as an essential sector in the strict sense of the term, and hence one in which strikes might be forbidden, constitutes a serious violation of freedom of association [see Digest, op. cit., para. 632]. Consequently, the Committee is of the opinion that measures taken to mobilize teachers and port workers at the time of disputes in services of this kind were such as to restrict the workers’ right to strike as a means of defending their occupational and economic interests. The Committee requests the Government to refrain from taking such measures in the future.
6. 575. The Committee also notes the indication that the Council of Ministers declared the teachers’ strike illegal. It recalls that responsibility for declaring a strike illegal should not lie with the Government, but with an independent body which has the confidence of the parties involved [see Digest, op. cit., para. 628]. The Committee therefore requests the Government to take this principle into account in the future.
7. 576. The Committee also notes that there have been large-scale dismissals of strikers, affecting 259 teachers and 405 dockers and port workers. In this regard, the Committee is bound to emphasize that the use of extremely serious measures, such as dismissal of workers for having participated in a strike and refusal to re-employ them, implies a serious risk of abuse and constitutes a violation of freedom of association [see Digest, op. cit., para. 666]. Furthermore, the Committee regrets that, in the context of the transfer of enterprise which led to a reduction in staff, the Government appears not to have consulted the SNTP or attempted to conclude an agreement with this organization.
8. 577. The Committee notes that the dismissed dockers and port workers have still not been reinstated, including all the trade union members and leaders, in particular their Secretary-General, Mr Bacar Soilihi. The Committee notes that these workers lodged a complaint with the court, which ruled in their favour and, according to the complainant, granted them limited compensation. However, the port authority filed an appeal against this lower court ruling and has not reinstated any of the dismissed workers. In view of the very limited reply from the Government, the Committee can only conclude that these trade unionists and trade union leaders were dismissed for having exercised their right to strike, were punished for their trade union activity and have been the subject of anti-union discrimination. The Committee therefore asks the Government to ensure the holding of consultations with the SNTP and the Al-Marwan enterprise with a view to reinstating, where possible, all the workers dismissed following the strike. While noting the Government’s indication that the dockers have been compensated pursuant to the ruling of the court, the Committee requests the Government to clarify whether the reference is made to the ruling of the court of Moroni or to the ruling of the court of appeal. Considering that the workers concerned should be paid adequate compensation representing a sufficiently dissuasive sanction against anti-union dismissals, the Committee requests the Government to indicate the manner in which the dismissed workers were compensated.
9. 578. With regard to the striking teachers, the Committee notes that they were called back to work at the start of the new academic year in October 2007, with the exception of the three trade union representatives who are still unemployed (Mr Combo, Mr Aloba and Ms Baraka Anli). The Committee also notes that the wages of the striking teachers were withheld from January 2007 to their reinstatement in October 2007. In the light of its conclusions on the nature of the strike and on the fact that these teachers were punished for their legitimate trade union activities, the Committee requests the Government to re-examine, with the trade union concerned, all the cases of dismissal of teachers with a view to compensating them for their dismissal in February 2007 and the non-payment of their wages and benefits up to their reinstatement in October 2007. The Committee requests the Government to keep it informed in this regard.
10. 579. Furthermore, the Committee recalls that one of the fundamental principles of freedom of association is that workers should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment, such as dismissal, demotion, transfer or other prejudicial measures. This protection is particularly desirable in the case of trade union officials because, in order to be able to perform their trade union duties in full independence, they should have a guarantee that they will not be prejudiced on account of the mandate which they hold from their trade unions. The Committee has considered that the guarantee of such protection in the case of trade union officials is also necessary in order to ensure that effect is given to the fundamental principle that workers’ organizations shall have the right to elect their representatives in full freedom [see Digest, op. cit., para. 799]. While noting that, according to the Government, the three trade union leaders, Mr Combo, Mr Aloba and Ms Baraka Anli, were reinstated in March 2008, the Committee requests the Government to ensure, if it has not been done already, that any salary arrears owed as well as adequate compensation which would constitute a sufficiently dissuasive sanction against anti-union dismissals is paid to them without delay. The Committee requests the Government to keep it informed in this regard.
11. 580. The Committee notes that, according to the complainant organization, Ms Anli, a member of the regional office of the National Union of Comorian Teachers, was obliged to leave the island of Anjouan due to persecution and harassment by the island’s Government. The Committee is bound to emphasize that the rights of workers’ and employers’ organizations can only be exercised in a climate that is free from violence, pressure or threats of any kind against the leaders and members of these organizations, and it is for governments to ensure that this principle is respected [see Digest, op. cit., para. 44]. The Committee requests the Government to carry out an independent investigation into this case in order to determine responsibility, punish the guilty parties and prevent the repetition of such events, and to keep it informed in this regard.
12. 581. The Committee notes the allegation made by the CTC that workers of the company MaMwé (hydroelectric sector) were suspended and subsequently dismissed for having signed a list of claims intended to object to the company’s policy of questioning the workers’ social rights. While noting that all the dismissed workers have since been reinstated in their duties, the Committee recalls that the right to express opinions through the press or otherwise is an essential aspect of trade union rights [see Digest, op. cit., para. 155] and considers that workers should under no circumstances be dismissed for the simple reason that they have signed a list of claims; these dismissals constitute a serious act of discrimination.
13. 582. The Committee notes the CTC’s allegation that the employer fails to respect the principle of grading sanctions and that the directors of the enterprise have a tendency to dismiss workers without warning regardless of the seriousness of the offence committed and its further allegation that the employer exercises its power arbitrarily without complying with the regulations of the enterprise, which stipulate that a disciplinary board must be convened and prior warning given for any offence. The Committee recalls that no person should be dismissed or prejudiced in employment by reason of trade union membership or legitimate trade union activities, and it is important to forbid and penalize in practice all acts of anti-union discrimination in respect of employment [see Digest, op. cit., para. 771]. The Committee requests the Government to take steps, in consultation with the social partners concerned, including through the adoption of legislative provisions, to ensure comprehensive protection against anti-union discrimination in the future, providing for recourse to rapid procedures that may impose sufficiently dissuasive sanctions against such acts. It requests the Government to keep it informed in this respect.