Observation (CEACR) - adoptée 2010, publiée 100ème session CIT (2011)

The Committee notes the Government’s report received in June 2010. In its previous comments the Committee expressed concern at the fact that the Government had not provided information on the application of the Convention since July 2004 and had emphasized that technical assistance might be useful to rectify the situation. The ILO undertook a mission to Kinshasa in May 2010 precisely for this purpose. The Committee notes with interest the provisions of the Labour Code, adopted in October 2002, and of the Ministerial Orders adopted in October 2005 and August 2008 implementing the Convention. The Government also indicates that some 250 cases of termination of employment are examined each month by the General Labour Inspectorate. Approximately 100 cases are the subject of conciliation, 100 cases have been brought before the courts, and the other cases remain pending. The Committee requests the Government to continue to supply information on the practice of the labour inspectorate and the courts on matters of principle relating to the application of Articles 4, 5 and 7 of the Convention. The Committee hopes that the next report will contain further information on the number of appeals against termination, the outcome of such appeals, the nature of the remedy awarded and the average time taken for an appeal to be decided (Parts IV and V of the report form). In view of the circumstances of the country, it would also be important to know the number of terminations for economic or similar reasons (Articles 13 and 14).

Article 2(4). Exclusions. The Committee previously noted that career civil servants were excluded from the scope of the 1967 Labour Code. These particular categories of employees were made subject to special regulations determined by Act No. 81/003 of 18 July 1981. The Committee notes that section 1 of the 2002 Labour Code excludes from its scope judges and magistrates, career civil servants governed by the general employment regulations and those governed by special employment regulations, and also certain members of the Congolese armed forces, the Congolese national police and the National Service. The Committee notes Organic Act No. 06/020 of 10 October 2006 establishing employment regulations for judges and magistrates, which states that judges are irremovable (section 14) and contains provisions on their dismissal (section 48 ff.). The Committee requests the Government to supply information in its next report on the protection afforded against wrongful dismissal to other categories of public sector employees such as officials in the armed forces and the national police.

Article 7. Procedure prior to or at the time of termination. The Government indicates in its report that the possibility for workers to defend themselves before termination is provided for in collective agreements. The Committee requests the Government to send copies of the collective agreements which provide for this possibility and to indicate in its next report the manner in which the application of this provision of the Convention to workers not covered by collective agreements is ensured.

Article 12. Severance allowance and other income protection. The Committee recalls its previous comments and notes that the 2002 Labour Code does not provide any indication on the severance allowance to be paid to workers. The Committee recalls that Article 12 provides that a worker whose employment has been terminated is entitled to a severance allowance or any other form of income protection or benefit. The Committee trusts that the Government will provide information on how it gives effect to this provision of the Convention.