Seguimiento dado a las recomendaciones del Comité y del Consejo de Administración - Informe núm. 363, Marzo 2012

Effect given to the recommendations of the Committee and the Governing Body

1. 134. The Committee examined this case at its March 2011 meeting and on that occasion made the following recommendations [see 359th Report, para. 394]:
   • (a) The Committee notes the efforts made by the Government to respond to certain questions which have been under examination in the present case for many years. The Committee notes visible progress in the form of the legislative amendments that have been requested by the ILO supervisory bodies, and urges the Government to inform it when the legislative text amending sections 41, 214 and 215 of the Labour Code enters into force and to send a copy of the said text.
   • (b) The Committee notes with great concern, however, that questions remain regarding a number of serious issues. The Committee firmly expects the Government to show real willingness to improve the situation in this case by making specific and definitive responses to its recommendations. The Committee therefore firmly urges the Government once again to take specific steps towards this end without delay and thus facilitate transparent and sustainable social dialogue in Djibouti.
   • (c) As regards the issue of the workers dismissed in 1995 following a strike who have not yet been reinstated, the Committee requests the Government to supply information on the situation of Ms Mariam Hassan Alin and Mr Habib Ahmed Doualeh, whose reinstatement it claims to be under negotiation. As regards the workers whose names have been supplied by the complainant organizations and concerning whose situation it claims to have no information, the Committee expects the Government to take all necessary steps to resolve their situation without delay, at least for those who reside within the national territory or have indicated their wish to be reinstated. As regards the question of payment of wage arrears, the Committee requests the Government to reconsider its position.
   • (d) The Committee requests the Government to supply detailed information without delay on the situation of Mr Adan Mohamed Abdou and Mr Kamil Diraneh Hared, concerning whom it indicates, on the one hand, that it agrees to their reinstatement in their original department or another government department together with payment of their social security contributions and, on the other hand, that these two men have declined to be reinstated. If the Government maintains that they have declined to be reinstated, the Committee expects it to provide details accordingly.
   • (e) The Committee repeats once again its request to the Government to launch an inquiry without delay into the circumstances of the September 2006 dismissal of Mr Hassan Cher Hared and to inform it of the results and of any follow-up action taken.
   • (f) The Committee firmly expects the Government to guarantee the right to hold free and transparent elections to all trade unions in the country, particularly the UDT and its affiliated organizations. Such elections will enable the workers to choose their representatives in full freedom, without interference by the public authorities, whether it be deciding the terms of eligibility for union officers or holding the actual elections. Thus, in a framework which fully respects the capacity of workers’ organizations to act in total independence, the Government will be in a position to determine, together with these organizations, objective and transparent criteria for nominating worker representatives to national tripartite bodies and to the International Labour Conference.
   • (g) Taking into account the history of this case and the questions still pending, the Committee requests the Government to accept a tripartite mission.
2. 135. In a communication dated 16 June 2011, the General Union of Djibouti Workers (UGTD), through its General Secretary Mr Kamil Diraneh Hared, condemned the organization of a “clone” trade union congress in August 2010 with the support of the Government and an international trade union organization.
3. 136. In a communication dated 29 August 2011, the complainant organizations, the Djibouti Labour Union (UDT) and the UGTD, draw attention to the situation with regard to the outstanding issues in this case. With regard to the legislative amendments requested by the ILO supervisory bodies, they indicate that three sections of the Labour Code have been amended as requested. However, in their opinion, the Labour Code remains highly antisocial and violates the continental and international legal instruments by which the country is bound. With regard to the reinstatement of the workers dismissed in 1995 who have not yet been reinstated, the complainants indicate that the Government continues to refuse to take the necessary steps to reinstate them as it had undertaken to do. Furthermore, the complainants condemn the Government’s creation of social institutions such as the National Council for Labour, Employment and Vocational Training in which workers’ representatives are nominated by the Government, which undermines social and tripartite dialogue. The complainants indicate that the physical punishment and harassment of trade union leaders continues, and regret the assistance given to the Government by international and regional trade union organizations and the ILO, despite the fact that the UDT and the UGTD continue to be prevented from organizing their activities normally and that their leaders and their leaders’ friends and families continue to be harassed. Lastly, the complainants report that the proceedings brought in 2006 against Mr Mohamed Ahmed Mohamed, Legal Affairs Officer for the Union of Port Workers (UTP), Mr Djibril Ismael Egueh, General Secretary of the Maritime and Transit Services Staff Union (SP-MTS), Mr Hassan Cher Hared and Mr Adan Mohamed Abdou for “delivering information to a foreign power” remain pending in court.
4. 137. In its communication dated 20 October 2011, the Government refutes the allegations of the UGTD concerning the organization of the congress of the trade union confederation led by Mr Abdou Sikieh Dirieh. The Government states that the UGTD, led by Mr Sikieh Dirieh, organized its congress in a fully transparent manner before an international trade union delegation consisting of observers from the World Federation of Trade Unions (WFTU), the Arab Labour Organization (ALO), the Trade Union of the Community of Sahelo-Saharan States and trade union confederations from Sudan and Yemen. The Government states that the congress took place without any interference whatsoever on its part. Lastly, the Government indicates that Mr Kamil Diraneh Hared has no mandate to speak on behalf of the UGTD and is, in fact, merely a militant from an opposition party.
5. 138. With regard to the amendments to the Labour Code, the Government provided a copy of Act No. 109/AN/10/6 L, partially amending sections 41, 214 and 215 of the Labour Code, promulgated on 16 February 2011. As regards the issue of the reinstatement of the workers dismissed in 1995 who have not yet been reinstated, the Government provides the same list as it provided previously, mentioning workers reinstated between 2002 and 2005, two workers whose reinstatement is under negotiation (Ms Mariam Hassan Ali and Mr Habib Ahmed Doualeh), two workers who refuse to be reinstated (Mr Adan Mohamed Abdou and Mr Kamil Diraneh Hared) and workers about whose situation the Government has no information (Mr Abdoufathah Hassam Ibrahim, Mr Houssien Dirieh Gouled, Mr Moussa Waiss Ibrahim, Mr Abdillahi Aden Ali, Mr Bouha Daoud Ahmed, Mr Souleiman Mohamed Ahmed and Mr Mohamed Doubad Waiss), to which the name of Mr Hassan Cher Hared has been added. As on earlier occasions, the Government indicates that it is willing to accept the recommendation made by the direct contacts mission of 2008 concerning the reinstatement of the following persons who are present in the country to their original department, and that it agrees to pay contributions to the National Social Security Fund to enable them to qualify for, or receive, a standard retirement pension (Mr Adan Mohamed Abdou, Mr Kamil Diraneh Hared, Mr Habib Ahmed Doualeh and Mr Ahmed Djama Egueh). The Government also points to the need to devise ways of covering gaps in annuities payable to Mr Ahmed Djama Egueh and Mr Kamil Diraneh Hared, who have reached retirement age. However, as regards the mission’s recommendation concerning the payment of salary in arrears backdated to 1995, the Government reiterates that it definitively rejects this request.
6. 139. As regards the situation of Mr Hassan Cher Hared, the Government provides information concerning the circumstances of his dismissal. It points out that Mr Cher Hared, who at that time was staff delegate and leader of the postal workers’ union, and the then Director of the Post Office were guilty of abuse of power and misuse of company funds in a dispute that had become personal. The decision to dismiss them was taken by the Post Office Governing Board after all other statutory disciplinary measures had been exhausted. Furthermore, the Government adds that there are no legal proceedings against Mr Cher Hared whatsoever, contrary to his claim, and that he is therefore free to move and engage in all legal activities, except in public service and semi-public service activities.
7. 140. The Government again indicates that it issues a written invitation to recognized organizations to appoint their representatives to participate in the International Labour Conference. With regard to employers’ representation, there is only the Business Federation of Djibouti (FED). With regard to workers’ representation, the Government states that there are two confederations, namely, the UGTD led by Mr Sikieh Dirieh, which held its congress in August 2010, and the UDT. The Government indicates that the UDT is going through a serious internal crisis and that none of its representatives has a clear and unambiguous mandate obtained through free elections. In these circumstances, the Government states that until the UDT organizes free, transparent and open elections, it could be excluded from all national and international meetings and will not be able to take part in the International Labour Conference.
8. 141. The Committee takes note of the complainants’ new allegations and of the Government’s new observations. The Committee welcomes the adoption of Act No. 109/AN/10/6 L, partially amending sections 41, 214 and 215 of the Labour Code, promulgated on 16 February 2011. It expects the Government to show the same will to comply with the requirements of the Conventions that it has ratified on freedom of association and the right to collective bargaining by taking, without delay, the necessary steps to amend its legislation with regard to the other matters that have been raised by the supervisory bodies of the ILO for many years.
9. 142. The Committee has taken note of the information provided by the Government with regard to the reinstatement of the workers dismissed in 1995 who have not yet been reinstated. In this respect, the Committee observes that the situation remains unchanged. It therefore requests the Government once again to provide information, if any, on the outcome of the negotiations with Ms Mariam Hassan Ali and Mr Habib Ahmed Doualeh. As regards the workers concerned whose situation the Government claims to have no information, the Committee expects the Government to take all necessary steps to resolve their situation without delay, at least for those who reside within the national territory or have indicated their wish to be reinstated. Lastly, the Committee notes that the Government provides the same contradictory information concerning Mr Adan Mohamed Abdou and Mr Kamil Diraneh Hared, in respect of whom it indicates, on the one hand, that it agrees to their reinstatement in their original department and to pay their social security contributions and, on the other hand, that they have declined to be reinstated. The Committee once again requests the Government to indicate the current employment situation of Mr Adan Mohamed Abdou and, if he has declined to be reinstated, to specify the date of the negotiations and his reasons for declining. As regards Mr Kamil Diraneh Hared, the Committee asks the Government to indicate whether the issue of the gap in annuities has been resolved so that he can draw his retirement pension.
10. 143. The Committee once again recalls that the Government had stated to the direct contacts mission of 2008 that it was not opposed to the principle of paying compensation to the workers, since they had agreed to be reinstated in their posts and, accordingly, the Ministry of Employment and National Solidarity had been instructed to conduct individual negotiations. The Committee notes, once again, with deep regret the Government’s categorical rejection of the recommendation of the direct contacts mission concerning the payment of salary arrears since 1995. The Committee is bound to recall that, in cases of the dismissal of trade unionists on account of their trade union membership or activity, the Committee invariably calls for their reinstatement in their posts without loss of earnings in addition to the appropriate legal penalties to prevent such a situation from recurring in future. Moreover, should reinstatement prove impossible, steps should be taken to ensure that they receive adequate compensation for the damage suffered that would represent a sufficiently dissuasive sanction. The Committee firmly expects the Government to reconsider its position.
11. 144. The Committee has taken due note of the additional information provided by the Government concerning the circumstances of the dismissal of Mr Hassan Cher Hared from the Post Office in September 2006. The Committee notes the statement to the effect that he was guilty of abuse of power and misuse of company funds, in view of which the Post Office Governing Board had decided to dismiss him, having exhausted all statutory disciplinary measures. The Committee further notes the statement to the effect that there are currently no legal proceedings against Mr Hassan Cher Hared and that he is therefore free to move and engage in all legal activities, except in public service and semi-public service activities. The Committee requests the Government to provide all pertinent documents (reports, correspondence, judicial decisions) in support of its claims with regard to the dismissal of Mr Hassan Cher Hared and his present situation.
12. 145. The Committee asks the Government to provide information on the situation concerning the proceedings brought, since 2006, against Mr Hassan Cher Hared, Mr Adan Mohamed Abdou, Mr Mohamed Ahmed Mohamed and Mr Djibril Ismael Egueh for “delivering information to a foreign power”.
13. 146. The Committee notes that the Government merely indicates once again in its communication that it invites recognized organizations to freely choose their representatives to the International Labour Conference. It notes that, according to the Government, there are two confederations: the first of these is the UGTD, led by Mr Abdou Sikieh Dirieh, which held its congress in August 2010 in the presence of numerous international observers; and the second is the UDT, which is going through a serious leadership crisis involving its President, Mr Mohamed Youssouf Mohamed, and General Secretary, Mr Adan Mohamed Abdou, which is bringing it to a standstill. The Committee notes that the Government states once again that if the UDT does not hold free, transparent and open elections in the immediate future it may be excluded from all tripartite bodies and will no longer be able to take part in national and international meetings. Recalling that one of the outstanding issues relates to interference by the Government in the affairs of the UDT, the Committee is bound to express its deep concern at the persistent allegations of Government interference in and harassment of the UDT, which it is considering in the context of another case [see Case No. 2753, paras 468–486 of the present report].
14. 147. Moreover, taking into account the allegations of the UGTD, expressed through its General Secretary, Mr Kamil Diraneh Hared, and the observations of the Government, the Committee is bound to recall the history of this case with regard to the dispute between the UGTD and the Government concerning its legitimate leaders: the organization, by the Government, of the UDT and UGTD congresses in 1999, bypassing their leaders; the fact that the former leaders of the UDT regained leadership of the confederation in 2002, unlike in the case of the UGTD; the coexistence since the 1999 congress of two confederations with the same name, the UGTD, the first being the complainant in the present case, led by Mr Kamil Diraneh Hared, which the Government does not recognize as legitimate, and the second being the confederation recognized as legitimate by the Government, the leadership of which emerged at the congress of 1999 and the General Secretary of which was confirmed as Mr Sikieh Dirieh at the congress of August 2010.
15. 148. In this regard, the Committee is bound to insist once again on the need for the Government to guarantee the right to hold free and transparent elections to all trade unions in the country, particularly the UDT and its affiliated organizations or, as appropriate, the UGTD led by Mr Diraneh Hared and its affiliated organizations. These elections must enable workers to designate their representatives freely, in accordance with their own statutes and without interference by the public authorities, whether in determining eligibility requirements for the leadership or in the conduct of the elections themselves. It is only in a framework which fully respects the capacity of workers’ organizations to act in total independence that the Government will be in a position to determine, with these organizations, objective and transparent criteria for nominating workers’ representatives to national and international tripartite bodies and to the International Labour Conference.
16. 149. Recalling with concern, that it has referred to the outstanding issues in the present case in its recommendations for many years without any effective measures having been taken to resolve them, the Committee firmly expects the Government to provide specific replies without delay indicating that they have been resolved.