Demande directe (CEACR) - adoptée 2007, publiée 97ème session CIT (2008)

Article 1(c) of the Convention. Sentences of imprisonment involving an obligation to work for breaches of labour discipline. In its previous comments, the Committee noted with regret that the Government had not taken the opportunity afforded by the adoption of the new Merchant Shipping Code (Act No. 2002-22 of 16 August 2002) to amend the provisions which it had been commenting on for many years. Under sections 624, 643 and 645 of the new Merchant Shipping Code, unapproved absence from the vessel, verbal insults, gestures or threats towards a superior and a formal refusal to obey a service order are still punishable by imprisonment, involving compulsory prison labour, in accordance with section 692 of the Code of Penal Procedure and section 32 of Decree No. 2001-362 of 4 May 2001 concerning the implementation and organization of penal sanctions. In view of the fact that the scope of these provisions is not confined to cases in which the breach of discipline would endanger the ship or the persons on board, the Committee has considered them to be contrary to the Convention, which prohibits recourse to forced labour, including in the form of compulsory prison labour, as a means of labour discipline.

In its last report, the Government recognizes that these provisions are not in conformity with the Convention. It adds that, in practice, no prison sentence involving compulsory labour is applied and that the merchant navy itself has considered as excessive the penalties provided for and the contraventions penalized. For this reason, penal sanctions are always discarded in cases of breaches of discipline. The merchant navy has received instructions to identify all provisions of the Code which are contrary to international conventions and to take steps for the situation to be settled definitely. In view of this information, the Committee considers that the Government should have no difficulties in making the necessary changes to the Merchant Shipping Code so that the legislation is brought into conformity with the Convention and with the established practice.

Article 1(d). Prison sentences involving an obligation to work as a punishment for participation in strikes. 1. In its previous comments, the Committee drew the Government’s attention to section L.276 of the Labour Code, which enables the administrative authority to requisition workers from private enterprises and public services and establishments who are engaged in jobs that are essential for the security of persons and property, the maintenance of public order, the continuity of public services and the satisfaction of the essential needs of the nation. Any worker who does not comply with the requisition order is liable to a fine and/or imprisonment ranging from three months to one year (section L.279(m)). The Committee asked the Government to supply a copy of the Decree implementing section L.276 containing the list of jobs concerned and information on cases in which the competent administrative authority had recourse to section L.276. In this respect, the Committee recalled that requisition can only be justified with regard to essential services, i.e. services the interruption of which would endanger the life, personal safety or health of the whole or part of the population.

In reply, the Government states that the requisition of workers is certainly justified in the case of essential services. It is only for this reason that the provision is laid down, namely as a measure of public security. On no account is it designed to constitute a penalty. The Government points out that the Decree implementing section L.276 is in the process of being adopted and, pending this, it is Decree No. 72-017 of 11 March 1972 establishing the list of posts, jobs or functions of which the occupants may be subject to requisition which continues to apply.

In comments communicated in November 2006 by the Government, the National Confederation of Workers of Senegal (CNTS) states that the requisition of certain workers in certain situations constitutes an abuse of authority intended to break strikes initiated by workers. Certain employers in the private sector use this process to force workers to remain in their posts when there is no need for them to do so.

The Committee notes all this information. It notes, as it did in 2006 in its observation on the application of Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), by Senegal, that Decree No. 72-017 provides for the requisitioning of workers in relation to many posts, jobs or functions to which the definition of essential services in the strict sense of the term (i.e. those the interruption of which would endanger the life, personal safety or health of the whole or part of the population) does not apply. The Committee also emphasized in the same observation that having recourse to the replacement of striking workers is a serious violation of the right to strike. Noting that, firstly, workers who do not comply with a requisition order are liable to imprisonment (section L.279(m) of the Labour Code) and, secondly, powers of requisitioning may be exercised with regard to workers whose posts, jobs or functions are not essential services in the strict sense of the term, the Committee requests the Government to take the necessary steps to ensure that the Decree implementing section L.276 of the Labour Code, which is in the course of being adopted, is in conformity with the Convention. To this end, the list of posts, jobs or functions whose occupants may be subject to requisitioning should be limited to the posts, jobs or functions which are strictly necessary to ensure the operation of essential services in the strict sense of the term, and workers who do not comply with a requisitioning order should not be liable to imprisonment.

2. In its previous comments, the Committee drew the Government’s attention to the need to amend the last paragraph of section L.276 of the Labour Code, which states that any exercise of the right to strike accompanied by occupation of the workplace or its immediate surroundings is liable to the penalties provided for by sections L.275 and L.279(o), namely: loss of entitlement to the payments and benefits provided for in the event of termination of a contract; imprisonment ranging from three months to one year and/or a fine. In its report, the Government indicates that the restrictions concerning occupation of the workplace in the event of a strike are actually limited to cases in which strikes cease to be non-violent and that the penalties provided for have never been applied, situations having always been settled by means of negotiation. The Committee notes this information. It reminds the Government that the current wording of the last paragraph of section L.276, by not being limited to cases in which strikes cease to be non-violent, contains an excessive restriction on the exercise of the right to strike, any person contravening this provision being liable to imprisonment. While noting that the penalties laid down by section L.276 have never been applied in practice, the Committee considers that, in order to guarantee legal certainty and ensure the conformity of the legislation with the Convention, the provisions of section L.726 of the Labour Code should be amended by removing the penal aspect of the penalties laid down and ensuring that the right to occupy the workplace or its immediate surroundings is guaranteed as long as the strike remains non-violent.