Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 318, Novembre 1999

1. 431. In a communication of 2 October 1998 the National Union of Autonomous Trade Unions of Senegal (UNSAS) lodged a complaint of violation of trade union rights against the Government of Senegal. The Government sent its observations in a communication dated 29 January 1999. The complainant supplied additional information in a communication dated 8 March 1999.
2. 432. Senegal 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. 433. The National Union of Autonomous Trade Unions of Senegal (UNSAS) alleges violations of trade union rights and refers specifically to the case of the Single Trade Union of Electricity Workers (SUTELEC). This union operates within the National Electricity Company of Senegal (SENELEC), a state-owned company which has a monopoly in the generation, delivery and distribution of electrical power in Senegal.
2. 434. The complainant alleges that the General Secretary of SUTELEC, Mr. Mademba Sock, who is also General Secretary of UNSAS, was arrested on 20 July 1998 together with 26 other trade unionists, and that in all 38 trade unionists were dismissed by the management of SENELEC. The complainant considers that these actions were the doing of the Managing Director of SENELEC, acting in connivance with the Government and the National Confederation of Workers of Senegal. The actions allegedly form part of a pattern of events, described below, during the course of which the Government and the SENELEC management violated the most fundamental principles of freedom of association.
3. 435. The complainant alleges, first, that the Government obstructed free collective bargaining within SENELEC. Specifically, UNSAS claims that the Government failed to honour an agreement concluded on 2 June 1997 with SUTELEC as part of the reform programme in the electricity sector the purpose of which was to privatize the generation, distribution and sale of electricity. The aim of the agreement was to provide a way of solving the problem of investment, maintaining the public service and safeguarding workers' interests. In addition, it was expressly stipulated that any subsequent changes to the agreement would have to be discussed by the parties and included in a signed amendment.
4. 436. According to the complainant, the Government deliberately flouted this agreement by deciding unilaterally and without any prior consultation that the transformation of SENELEC would be effected only on an interim basis and that it would be carried out through the immediate sale of shares to private investors, rather than by increasing the capital before flotation.
5. 437. Similarly, the complainant considers that the Managing Director and Board of Directors of SENELEC are obstructing free collective bargaining. The complainant explains that on 16 February 1998, SUTELEC submitted a request to the company's Board of Directors for talks on matters including wage increases, cancellation of debt for employees who were not signed up for voluntary severance, indexation of bonuses and merit promotions. The complainant alleges that, following three meetings with senior management on 17 and 20 March and 3 April 1998, the SENELEC management resorted to blatant delaying tactics. The complainant also alleges that the Managing Director for over two months failed to follow up the proposed amendment concerning talks on merit promotions which had been drafted in the usual way by representatives of the personnel department and two members of SUTELEC. The complainant also claims that, although the matter was drawn to the attention of SENELEC's Board of Directors as early as February 1998, that body has still not taken any decision on wage increases, qualifications and staff debts, or expressed any view on the lack of good faith on the part of the Managing Director during talks on management restructuring.
6. 438. It was this attitude of indifference on the part of the authorities, together with the persistent attempts by SENELEC management to persuade staff to accept voluntary severance, despite the negative impact of this policy on the general running of the company, which prompted SENELEC during its general assembly on 9 July 1998 to ask workers affected by multiple job holding and overtime work to keep to their original posts and to work only normal working hours. The complainant stresses that there is no link between these measures and the general power cuts that took place on 15 July, and recalls that similar power cuts had occurred on 29 June. The complainant stresses that the power cuts in question were not the result of any deliberate acts of sabotage.
7. 439. On 20 July 1998, following these events and a complaint from the Managing Director of SENELEC alleging sabotage of electrical power installations, the police arrested Mr. Mademba Sock, the General Secretary of SUTELEC, together with 26 of his colleagues, without a warrant, just as the third of the power cuts occurred. After being held in custody for four days, the detainees were brought before a magistrate and charged with, among other things, "interfering with the free operation of industry or labour through a coordinated plan to damage public installations" and "acts likely to jeopardize public safety". The detainees were remanded in custody on 23 July 1998 on the orders of the investigating magistrate.
8. 440. On 8 December 1998 the court ordered the release of all the persons charged with "causing deliberate damage to public electrical installations belonging to SENELEC" and "complicity in acts aimed at causing deliberate damage to public electrical installations belonging to SENELEC". However, Mr. Mademba Sock and Mr. Samba Yoro Dieye were found guilty of acts likely to jeopardize public safety under the terms of section 80 of the Penal Code and sentenced to six months' imprisonment. The court considered that the actions taken following the July general assembly (referred to above) had the predictable consequence of "reducing output and disrupting the generation and distribution of electricity owing to the age of the equipment" and that "serious threats of disturbances were made against an essential service". In finding Mr. Sock and Mr. Dieye guilty, the court made it clear that the Penal Code applies to the possible consequences of an action, rather than just the actual result of it. Mr. Sock and Mr. Dieye served their sentences and were released on 23 January 1999.
9. 441. In addition to these arrests, the complainant adds that the Managing Director of SENELEC initiated dismissal proceedings against 38 members of SUTELEC including the two persons who had been arrested. On 24 July 1998 the Managing Director was given permission by the regional labour inspectorate in Dakar to dismiss 13 staff representatives on the grounds that they had incited colleagues to work-to-rule, encouraged insubordination among staff, abandoned their posts and carried out actions likely to disrupt the service. The Minister of Labour and Employment confirmed this decision on 16 September 1998.
10. 442. The complainant also alleges that there have been systematic attempts to interfere with and suppress its peaceful meetings and demonstrations. UNSAS states that all its requests for permission to hold peaceful marches or public meetings have been systematically turned down. While no reasons were given at first, more recent decisions have been based on public order considerations. Lastly, the complainant maintains that its attempts to hold demonstrations have all been broken up by force.
11. 443. Finally, the complainant alleges that its premises have been broken into. On 19 August 1998, law enforcement officials threw tear-gas grenades into the union's premises with the aim of breaking up a meeting.

B. The Government's reply

1. 444. The Government states, first, that there is no dispute between it and UNSAS or SUTELEC and that the dispute is rather between the management of SENELEC and SUTELEC and concerns matters such as pay rises, debt cancellation, indexation of bonuses, merit promotions and the suspension of incentives for voluntary severance. The Government states that apart from sectoral claims, most of which have been resolved by the power company and the union, the dispute has been caused by planned reforms in the power sector. The Government explains that, given the disappearance of traditional sources of finance and the growing need for investment, the State has undertaken a wide-ranging programme of reforms. As part of these reforms it has initiated a broad dialogue with the social partners which led to the adoption by the National Assembly of Act No. 98-06 on 28 January 1998 authorizing the transformation of SENELEC into a joint-stock company in which the State would own the majority of the shares. The Government points out that, before the Act in question was adopted, consultations with SUTELEC had led to the signature of the agreement of 2 June 1997 concerning SENELEC's continued role as principal operator responsible for the delivery, distribution and sale of electricity; the introduction of independent electricity producers; and the transformation of SENELEC into a joint-stock company in which the State would own a 51 per cent majority of the shares, including 10 per cent which would be offered to employees. The Government claims that only seven months after the enactment of Act No. 98-06, SUTELEC declared a work-to-rule with the clear aim of preventing the implementation of the agreement.
2. 445. The Government maintains that SENELEC was swamped by demands which culminated in the order given by SUTELEC to its members during the general assembly of 9 July 1998 to refuse to do legally authorized overtime or to do more than one job. This state of affairs continued until 15 July 1998, when a power cut affected almost the entire country. According to the Government, investigations by SENELEC's own technical departments found evidence of attempts to damage production equipment, and it was following these incidents that the SENELEC management lodged a complaint; an investigation by the judicial authorities led to the arrest of the General Secretary of SUTELEC and 26 of his colleagues. The SENELEC management then took steps to cancel the employment contracts of the 38 trade union officials involved. The Government maintains that the arrests and detentions of the SUTELEC officials are not connected with their trade union activities and that individuals were not dismissed because they had exercised their trade union rights.
3. 446. The Government examines in detail each of the allegations contained in the complaint. With regard to the allegations concerning failure to honour the agreement of 2 June 1997, the Government explains that the only changes brought about by the adoption of Act No. 98-06 concerned the proportion of shares reserved for employees, which is fixed at exactly 10 per cent, and a deadline for exercising the purchase option which was open to employees until 31 December 1998. If SENELEC decides, before shares are floated, to increase the company's capital, only the State, which is the sole shareholder, can fund the increase. Furthermore, the Government states that before Act No. 98-06 was adopted, the Minister of Energy had a meeting with SUTELEC officials to inform them of the new situation.
4. 447. As regards the alleged violations of free collective bargaining supposedly perpetrated by the Managing Director and Board of Directors of SENELEC, the Government emphasizes that the complainant itself recognizes that three meetings were held with SENELEC management (on 17 and 20 March and 3 April 1998); these resulted in significant pay rises in the order of 15 per cent for the lowest paid workers and of 5 per cent for those on higher pay scales. Furthermore, an agreement of 17 March 1998 provides for a further increase of 5 per cent for all employees with effect from December 1998.
5. 448. As regards the allegations concerning the arbitrary arrest and detention of 27 SUTELEC members including five of the most senior officials and 12 staff representatives, the Government states that at no time were the judicial authorities influenced. The Government, like the complainant, adds that the judicial authorities handed down a ruling on 8 December 1998 that was broadly favourable to SUTELEC, thus proving their total independence. On that occasion the court simply released the detainees and acquitted them of all the charges brought against them. The court only found Mr. Mademba Sock and Mr. Samba Yoro Dieye guilty of acts likely to jeopardize public safety and sentenced them both to six months' imprisonment. The Government provides a copy of the sentence handed down.
6. 449. As regards the offer of voluntary severance made to staff, the Government considers that the negative reaction to this on the part of SUTELEC is not binding on the SENELEC management, which is legally obliged to define company policy and under law enjoys a certain freedom to take management decisions. The Government nevertheless states that the policy in question is aimed at employees who are in poor health or close to retirement age, non-managerial staff aged 50 years or above, managerial staff aged over 55 years, employees without at least a completed secondary education and employees in posts which are to be phased out. The Government regrets that SUTELEC criticizes the proposals without suggesting possible improvements.
7. 450. As regards allegations concerning dismissals of trade unionists including 19 staff representatives and ten union officials, the Government states that these were authorized by the Dakar regional labour inspectorate following a request from SENELEC which was made on the following grounds: incitement of employees to work-to-rule, incitement of staff to insubordination, incitement of workers to reduce output, abandoning of posts, acts likely to cause disruptions in service, and undermining of confidence. The Government notes that by inciting workers to work-to-rule without warning, SUTELEC officials violated sections L.273 and L.274 of the Labour Code and put themselves at fault in such a way as to justify their dismissal under section L.275 of the Code. In addition, the Government recalls that under the terms of section 19 of the internal regulations of SENELEC, an employee can be dismissed in the following cases: incitation of workers to insubordination; deliberately cutting output; insubordination; and refusal to carry out tasks required in the course of the employee's normal duties. The Government considers that the ruling given by the Dakar regional labour inspectorate and confirmed by the Minister of Labour is based on law and on the company's internal regulations which complement the individual employment contracts of the employees concerned.
8. 451. As regards the allegations concerning the systematic prohibition and suppression of non-violent union meetings and demonstrations, the Government explains that the legislators have granted wide discretionary powers to the administrative authorities, who can prohibit public demonstrations if they believe these might lead to disorder. The Government states that all the banning orders signed by the administrative authorities are based on relevant legislation. Furthermore, the Government notes that UNSAS did not lodge any appeal before the Council of State.
9. 452. As regards the allegations concerning the attacks carried out on UNSAS premises, the Government recalls that the principle of the inviolability of trade union premises is embodied in section L.27 of the Labour Code. However, this principle is applicable only if the trade union organizations concerned comply with legislation concerning public meetings or demonstrations in public places. The Government regrets that the UNSAS activists use the union premises as a refuge or retreat when unauthorized demonstrations are broken up.
10. 453. Lastly, the Government recalls that in October 1992 almost all regions of Senegal had experienced blackouts under circumstances identical to those of 15 July 1998. At that time Mr. Mademba Sock himself had attributed these actions to his own union but did not suffer any sanctions.

C. The Committee's conclusions

1. 454. The Committee notes that the present case concerns numerous allegations of violations of trade union rights, including violations of free collective bargaining, arrests, detentions and dismissals of trade unionists and union officials, as well as prohibitions of public demonstrations and attacks against trade union premises.
2. 455. With regard to the allegations of violations of free collective bargaining, the Committee notes that the complainant alleges that the management of SENELEC adopted delaying tactics during talks on matters such as pay increases, cancellation of debt for employees not signed up for voluntary severance, indexation of bonuses and merit promotions, and that the Government did not honour an agreement signed on 2 June 1997 by the Government and SUTELEC. The Committee notes that the Government and the complainant refer to three meetings of the management of SENELEC and SUTELEC; the Government adds that these meetings resulted in an agreement between the parties on a number of areas, a fact which is not denied by the complainant. In the light of the information available to it, in particular concerning the meetings between the trade union and the company and the conclusion of a subsequent agreement, the Committee is unable to conclude that the SENELEC management violated the principle of free collective bargaining or failed to negotiate in good faith with SUTELEC. However, the Committee emphasizes the importance which it attaches to the principle that both employers and trade unions should negotiate in good faith and make efforts to reach an agreement, which means that any unjustified delay in the holding of negotiations should be avoided. (See Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 816.) The Committee therefore requests the Government to keep it informed of the progress in talks between the trade union SUTELEC and representatives of the power company SENELEC.
3. 456. As regards the agreement of 2 June 1997, the Committee notes that it states expressly that SENELEC is to be maintained as the principal operator responsible for the delivery, distribution and sale of energy in Senegal (article 1). In accordance with the agreement, the parties agree to transform SENELEC into a joint-stock company in which the State will own at least 51 per cent of the company's shares (article 3b). In addition, the State retains the option of offering some of its shares to SENELEC employees, at the request of SUTELEC (article 3c). Lastly, it is expressly stated that both parties must honour the agreement, any alteration to which must be discussed in advance and set out in a signed amendment (article 7). However, the Committee notes that under the terms of section 2 of Act No. 98-06 of 28 January 1998 the State shall own not more than 51 per cent of the company's share capital including the shares to be offered to workers (10 per cent), leaving not more than 41 per cent of the shares in state ownership, the majority of SENELEC shares then being owned by private shareholders. Under the circumstances, the Committee is bound to regret the clear contradictions between Act No. 98-06 and the agreement of 2 June 1997 and requests the Government to comply in future with agreements that have been duly negotiated and signed.
4. 457. As regards the allegations concerning the arbitrary arrest and detentions of 27 members of SUTELEC including the General Secretary of UNSAS and SUTELEC, union officials and staff representatives, the Committee recalls, firstly, that these are extremely serious allegations and that the detention of trade union leaders or members for reasons connected with their activities in defence of the interests of workers constitutes a serious interference with civil liberties in general and with trade union rights in particular. (See Digest, op. cit., para. 71.) The Committee notes that the persons in question were charged with "causing deliberate damage to public electrical installations", "violence and criminal damage", "interference with the free exercise of labour", "perpetrating acts likely to jeopardize public safety", and "complicity" in causing power cuts experienced by Senegal in the summer of 1998. The court which examined the case nevertheless concluded that the evidence submitted to it in support of these charges was insufficient and released all the accused, with the exception of Mr. Mademba Sock and Mr. Samba Yoro Dieye, who were found guilty on only one count, namely that of committing acts likely to jeopardize public safety under section 80 of the Penal Code. They were sentenced to six months' imprisonment and duly served the sentence. The Committee notes that the court bases its ruling on the fact that the predictable consequence of refusing to do more than one job and boycotting overtime -- measures which were agreed at the SUTELEC general assembly on 9 July 1998 -- would be "to reduce output and disrupt the generation and distribution of electricity owing to the age of the equipment" and that "serious threats of disturbances were made against an essential service". The court adds that section 80 of the Penal Code is aimed at just such situations as these since it "applies not to the actual result but to the possible consequences of actions" and that it can cover a wide range of possible consequences not only of an action but also of a written or spoken statement or even suggestions made in public. The court concluded that the actions of Mr. Sock and Mr. Dieye met these criteria and found them guilty.
5. 458. Under the circumstances, the Committee notes that the power company SENELEC provides an essential service, that is to say, a service whose interruption may cause a clear and immediate threat to the life, safety and health of all or part of the population. In such cases, the Committee recalls that it has already acknowledged that the right to strike may be restricted in such essential services provided that adequate protection is given to the workers to compensate them for the limitation thereby placed on their freedom of action with regard to disputes affecting such undertakings and services. As regards the nature of the "appropriate guarantees", the Committee has indicated that restrictions on the right to strike should be accompanied by adequate, impartial and speedy conciliation and arbitration proceedings in which the parties concerned can take part at every stage and in which the awards, once made, are fully and promptly implemented. (See Digest , op. cit., paras. 546 and 547.) In the present case, the Committee considers that the lack of any compensatory measures together with the extremely wide scope of section 80 of the Penal Code, which applies not merely to the actual public safety consequences but to the possible consequences of certain acts, have helped to create a climate of tension which has led to the arrests and detentions referred to in the complaint; in order to prevent such regrettable situations arising again in future, the Committee reminds the Government that trade union activities should not serve as a pretext to the public authorities to arbitrarily arrest or detain trade unionists. The Committee requests the Government to take the necessary measures to ensure that SENELEC workers enjoy appropriate guarantees to compensate them for the restrictions imposed on their freedom of action; this may take the form of adequate, impartial and speedy conciliation and arbitration procedures. The Committee requests the Government to keep it informed in this regard.
6. 459. As regards the dismissals of SUTELEC members who were arrested and subsequently released, the Government maintains that the individual contracts of employment of these 25 workers and of 11 other trade unionists who were not arrested were cancelled by the Dakar regional labour inspectorate at the request of SENELEC as a result of problems caused by the general power cut of 15 July 1998. Nevertheless, noting that the criminal court acquitted the 25 employees who had been arrested, the Committee deplores the dismissal of the SUTELEC members who were acquitted as well as the dismissal of the workers who had not been arrested. In this context the Committee requests the Government to reassess the situation in the light of the ruling handed down in December 1998 and to take the necessary measures to ensure that all the SUTELEC trade unionists and officials who were dismissed following the events of July 1998 are offered reinstatement in their posts and without any loss of pay. The Committee requests the Government to keep it informed in this regard. Finally, the Committee notes that the dismissals of the staff representatives were authorized by the regional labour inspectorate and confirmed by the Minister of Labour, bodies which, in this case, appear to be partial, it being understood that before the adoption of Act No. 98-06 which had the effect of transforming SENELEC into a joint-stock company, SENELEC was a state-owned company. The Committee further requests the Government to ensure that bodies responsible for protecting trade union officials against anti-union dismissals act impartially and independently.
7. 460. As regards the allegations concerning the systematic prohibition and suppression of peaceful union meetings and demonstrations, the Committee notes that according to the Government the administrative authorities have wide discretionary powers to ban public demonstrations. The Committee recalls that trade union rights include the fundamental right to hold public demonstrations. Although the prohibition of demonstrations on the public highway in the busiest parts of a city, when it is feared that disturbances might occur, does not constitute an infringement of trade union rights, the authorities should strive to reach agreement with the organizers of the demonstration to enable it to be held in some other place where there would be no fear of disturbances. The authorities should resort to the use of force only in situations where law and order is seriously threatened. The intervention of the forces of law and order should be in due proportion to the danger to law and order that the authorities are attempting to control and governments should take measures to ensure that the competent authorities receive adequate instructions so as to eliminate the danger entailed by the use of excessive violence when controlling demonstrations which might result in a disturbance of the peace. (See Digest, op. cit., paras. 136 and 137.) In the present case, the Committee deplores any violent suppression of trade union demonstrations which might have taken place; it urges the Government to give the necessary instructions to ensure that such meetings can take place without interference by the public authorities. In addition, the Committee requests the Government to come to an agreement with the complainant to ensure that the latter can organize peaceful public meetings, this being an important aspect of trade union rights.
8. 461. Lastly, with regard to the allegations concerning the attacks carried out against the UNSAS headquarters, the Committee notes the Government's statements to the effect that UNSAS activists took refuge in their premises following the break-up by the police of a public demonstration. The Committee refers to the previous paragraphs concerning the use of force to break up public demonstrations. Furthermore, as regards the attacks on trade union premises and the threats made against trade unionists, the Committee recalls that activities of this kind create among trade unionists a climate of fear which is extremely prejudicial to the exercise of trade union activities and that the authorities, when informed of such matters, should carry out an immediate investigation to determine who is responsible and punish the guilty parties. (See Digest , op. cit., para. 179.) In the present case, the Committee requests the Government to ensure that such attacks on union premises do not recur in future, and requests the Government to take severe measures against those responsible for this incident to ensure that they are punished, and to keep it informed in this regard.