Rapport intérimaire - Rapport No. 96, 1967

1. 72. The complaint presented by the Union of Congolese Trade Unions is contained in a communication dated 17 February 1966, supplemented by a communication dated 5 April 1966. The text of the complaint was transmitted to the Government for its observations, and the Government forwarded its reply in a letter dated 21 March 1966.
2. 73. The Congo (Kinshasa) has ratified neither the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), nor the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. A. The complainants' allegations

1. 74. The essence of the complainant's allegations is that, by an order dated 15 February 1966, the Head of State suppressed the right to strike and that this, in the complainant's view, constitutes not only a violation of the free exercise of the right to freedom of association but also of article 28 of the Congolese Constitution.
2. 75. In its reply dated 21 March 1966 the Government indicated that the action taken by the Head of State to suspend momentarily the exercise of the right to strike was due solely to the circumstances currently obtaining and in no way abolished the right to strike.
3. 76. In furnishing the above details for the " information " of the I.L.O, the Government declared that " the Union of Congolese Trade Unions is not a government-approved trade union and, consequently, it would be out of place for the Congolese Government to furnish observations and explanations in respect of allegations made against it by an unlawful trade union, since such a complaint is irreceivable ".
4. 77. The matter was submitted to the 43rd Session of the Committee, held in May 1966: the latter felt that before envisaging an examination of the substance of the case, it should decide whether the organisation which made the complaint was entitled to do so under the procedure. The Office, although it had been aware for some time of the existence of this organisation, did not have any precise information as to its legal status, its size or its links with other industrial organisations, whether national or international.
5. 78. The Committee was therefore of the opinion that, in order to enable it to decide, with full knowledge of the facts, whether the complaint was receivable or not, information should be obtained from the complainant organisation respecting its status, membership and affiliation, and it requested the Director-General to contact the said organisation for the purpose of obtaining this information.
6. 79. At the same time, since non-recognition by the public authorities of a trade union organisation is not in itself a sufficient reason to deprive such organisation of its right to have recourse before the Committee to the complaint procedure in respect of infringement of freedom of association, the Committee considered it also desirable to request the Government to supply information concerning the exact legal status of the complainant organisation, the import and effects of recognition of a trade union, the relevant legislation applying and, in particular, the conditions for granting recognition. The Committee, therefore, requested the Director-General to obtain this information from the Government.
7. 80. At its 44th Session held in November 1966 the Committee noted that the Director-General, in a letter dated 30 May 1966, had requested the complainant to provide the additional information referred to in paragraph 78 above. No reply to this letter has so far been received.
8. 81. In this connection the Committee pointed out that, in a communication dated 5 April 1966, the complainant alleged that the Director-General's letter of 1 March 1966, in which the latter informed the complainant of its right to furnish further information in substantiation of the complaint, had been extracted from the post by the Confederation of Free Trade Unions of the Congo, examined, and forwarded to the Ministry of Labour.
9. 82. The Committee held that if such an allegation were true, the circumstances to which it referred might imply that the Director-General's letter of 30 May 1966 had never been delivered, thus explaining why no reply to it had been received.
10. 83. Be this as it may, since the Committee had not received the information which it deemed necessary for examination of the matter, and since there was some uncertainty as to whether the communication asking for this information had been received, the Committee requested the Director-General to repeat his request to the complainant organisation.
11. 84. In respect of the information referred to in paragraph 79 above, which the Committee wished to obtain from the Government, the Director-General requested the said information in a letter dated 30 May 1966, to which the Government replied in a communication dated 18 August 1966.
12. 85. In its reply the Government first pointed out that the Union of Congolese Trade Unions was not an industrial organisation recognised by the Minister of Labour, and that it therefore had no legal existence; the Government inferred from this that the said organisation could not carry on trade union activities of any sort, either in any part of the national territory or before international bodies.
13. 86. The Government went on to state that, in reply to the application for approval lodged by the complainant organisation, the competent authorities informed the said organisation that it should wait for its rules and regulations to be examined " in accordance with the relevant legislation now awaiting the signature of the President of the Republic ".
14. 87. The Government stated that the Minister of Labour had drawn up new instruments setting forth the conditions which a trade union should fulfil in order to be registered, and that these instruments were in the spirit of article 28, paragraph 1, of the National Constitution, which was worded as follows: " All Congolese shall have the right to peaceful and unarmed assembly and to establish trade unions and other associations or to join the same for the promotion of their well-being and the defence of their political, social, economic, religious and other interests." The Government stated that this draft legislation gives " full freedom to industrial associations " and that it lays down only formal conditions.
15. 88. At its session of November 1966 the Committee stated that the Government's comments seemed to imply that new legislative provisions on registration (or recognition) had been drafted but had not yet come into force and that, under the circumstances, they did not appear to have been applicable to recognition at the time the complaint was lodged. On the basis of the information available the Committee found that the 1957 texts governing the right to organise were rescinded in 1964, apparently without being replaced by other provisions-at least as regards recognition.
16. 89. The Committee established that the complainant trade union did exist de facto, at least in February 1966, when it lodged its complaint. In view of the fact that the Government was arguing the complainant's de jure non-existence as grounds for its complaint to be deemed irreceivable by the Committee, the latter considered that the onus fell on the Government to specify the reasons for which the trade union had failed to be registered and was to be considered as having no legal existence.
17. 90. The Committee recalled, in this context, that in its First Report it had held that it would be altogether inconsistent with the purpose for which the procedure for the examination of allegations concerning the infringement of trade union rights had been established for it to admit that the dissolution or non-recognition of an organisation by governmental action extinguished the right of the organisation to invoke the procedure.
18. 91. In the circumstances, before proposing to examine the substance of the matter, the Committee felt that in order to decide whether the organisation lodging the complaint was entitled to do so it would have to obtain exact information from the Government as to any, legislative provisions governing the recognition of trade unions at the time when the complaint was lodged, or any other relevant rule, and, in particular, the terms on which such rules, or provisions had been applied in the specific case of the Union of Congolese Trade Unions. It therefore requested the Director-General to obtain the said information from the Government.
19. 92. In his letter of 15 November 1966 the Director-General requested the complainant organisation to provide the information referred to in paragraph 78 above; no reply has been received to this letter. In a letter of the same date the Director-General requested the Government to provide the further information mentioned in the preceding paragraph. The Government replied by a communication dated 12 December 1966.
20. 93. In this communication the Government first of all states that it would not have hesitated to answer the questions concerning the substance of the complaint had the body in question been an industrial organisation with legal status. The letter, signed on behalf of the Government by the Minister of Labour and Social Welfare, continues thus: " I believe the Committee on Freedom of Association has a duty to take into consideration the laws of the country and recognise only established national institutions. It would be unlawful for my Government to deal with an organisation that has no legal existence; national practice would not allow it. Nor should the Committee, notwithstanding its aim of promoting the observance of freedom of association, encourage disrespect for national institutions or contribute to creating a climate of instability, particularly in developing countries, by recognising organisations which are not known to the governments of those countries. Rather, the Committee should endeavour to establish the legal aspects of such situations."
21. 94. The Government nevertheless enclosed the earlier texts establishing the conditions for the authorisation of trade unions, and that of Legislative Ordinance No. 122 of 1 May 1964, which, by its section 7, paragraph 1, repealed these texts. The Government specified that at the present time there was no legislation in force concerning the right to organise, but a Bill was being prepared.

B. B. The Committee's conclusions

1. 95. From the points made by the Government it is thus clear that both now and at the time when the complaint was lodged, no text exists, or existed, governing the conditions of recognition of trade unions.
2. 96. The fact remains that, even according to the Government's statements, the complainant organisation was refused recognition by the authorities, which was tantamount to a refusal of legal existence.
3. 97. It is possible that, once the grounds on which the Government adopted its present position with regard to the complainant organisation have been made known to the Committee, the latter will find them justified and share the Government's view that the organisation making the complaint was not entitled to do so. Nevertheless, for the reasons given in paragraphs 79 and 89 to 91 above, the Committee feels that it is incumbent on itself to settle the preliminary question of whether the complaint is receivable, and not on the Government, as the latter appears to consider.
4. 98. The Committee must also point out here, as it has done in earlier cases, that under the procedure governing the submission of complaints relating to violation of freedom of association, such complaints must come either from employers' or workers' organisations, or from governments. In its First Report the Committee noted that it was sometimes suggested that persons purporting to act on behalf of such an organisation were not entitled to do so because the organisation had been dissolved or was not recognised. In such cases the exact authority of the persons claiming to act on behalf of the organisation concerned might be disputed and the Committee stated that it would be prepared to consider such questions on their merits but would not regard any complaint as being irreceivable simply because the government in question had dissolved or not recognised the organisation on behalf of which the complaint was made. In taking this view it had been influenced by the conclusions unanimously approved by the Governing Body in 1937 in the Labour Party of the Island of Mauritius case when considering a representation under article 24 of the Constitution of the Organisation (then article 23). In the Mauritius case the Governing Body laid down the principle that it would exercise its discretion in deciding whether or not a body was to be regarded as an industrial association for the purpose of the Constitution of the Organisation and would not consider itself bound by any national definition of the term " industrial association ". The Committee had always followed the same principles when considering the receivability of complaints which came before it. It accordingly took the view that a complaint would not be irreceivable simply because the government against which it was lodged had dissolved or had not recognised the organisation lodging it.