Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 371, Mars 2014

1. 863. The Committee last examined this case at its November 2012 meeting, when it presented an interim report to the Governing Body [see 365th Report, paras 1279–1289, approved by the Governing Body at its 316th Session (November 2012)].
2. 864. The Government provided part of the information requested in a communication dated 28 January 2013. The complainant provided a response in a communication dated 15 April 2013.
3. 865. At its November 2013 meeting [see 370th Report, para. 11], the Committee noted the Office visited the country for a technical mission in July 2013 to gather relevant information on the case.
4. 866. The Democratic Republic of the Congo has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and the Workers’ Representatives Convention, 1971 (No. 135).

A. Previous examination of the case

1. 867. In its previous examination of the case in June 2011, the Committee made the following recommendations [see 365th Report, para. 1289]:
   • (a) The Committee once again deeply deplores that, despite the time that has elapsed since the presentation of the complaint in April 2009, the Government has still not replied to the complainant’s allegations, even though it has been requested several times, including through four urgent appeals, to present its comments and observations on the allegations and its response to the recommendations made by the Committee in its previous examination of the case [see 362nd Report, 360th Report, 359th Report and 356th Report, para. 5]. The Committee notes with regret that the Government continues to fail to comply, despite the assurances given to the Chairperson of the Committee at a meeting held in June 2011, and urges the Government to be more cooperative concerning this case.
   • (b) The Committee, recalling the principle of the inviolability of trade union premises and property, and in the absence of any reply from the Government, once again requests the latter to provide its observations on the allegations relating to the forcible entry by the police onto the SYNECAT premises, and to indicate whether the action taken by the police was based on a judicial warrant.
   • (c) The Committee urges the Government to investigate, without delay, the allegations concerning the suspension of the SYNECAT General Secretary from his teaching functions following a strike and the retention of his salary for a period of 36 months, to communicate the outcome of the investigations and, if it is found that the union official in question was suspended due to his exercise of legitimate trade union activities, to ensure that the salary arrears owed to him are paid in full.
   • (d) The Committee once again requests the Government to provide its observations on the allegations of harassment of the SYNECAT General Secretary without delay, and to report on the current situation and on the action taken regarding the matter referred to the Gombe higher court, which resulted in him receiving a summons.
   • (e) The Committee requests the Government to accept a high-level mission to discuss all the complaints pending before the Committee concerning the Democratic Republic of the Congo.

B. The Government’s reply

1. 868. In a communication dated 28 January 2013, the Government indicates that Mr Jean Bosco Puna Nsasa, General Secretary of the National Union of Teachers in Registered Schools (SYNECAT), who alleges that he has been the victim of harassment, deserted his post as a French teacher at the Notre Dame de Fatima Institute in Kinshasa, where he had been posted. He is reported to have accumulated unjustified absences of over 155 days during the 2009–10 and 2010–11 school years. The Government emphasizes that the Institute adopted an indulgent attitude in punishing him so belatedly, as the rules in schools in the catholic network classify 15 days of unjustified absence over a school year as “desertion”. With regard to the allegations of the withholding of his salary for 36 months, the Government indicates that, following his posting, it was the responsibility of the Notre Dame de Fatima Institute to make the necessary arrangements for the payment of his salary with the Teachers’ Pay Supervisory Service (SECOPE). However, according to the Government, Mr Puna expressed the wish to make the arrangements himself for his pay and it was agreed to provide him with his assignment order so that the necessary measures could be taken with the SECOPE, thereby relieving the Institute of its responsibility in that respect.
2. 869. Finally, the Government adds that SYNECAT is experiencing internal conflict between a faction led by the former president of the organization, Mr Malasi, and the faction led by Mr Puna. The first of these factions is reported to have taken legal action against Mr Puna’s faction.

C. The complainant’s response

1. 870. The complainant provided a response to the Government’s reply in a communication dated 15 April 2013. SYNECAT indicates that the punishment inflicted on Mr Puna for “desertion” was after the organization’s congress in April 2009 and was an unjustified punishment handed down on the instructions of the Ministry of Primary, Secondary and Vocational Education. Moreover, with regard to the sanction for “desertion”, SYNECAT expresses surprise that the direct manager of employees can allow an absence of 155 days to be built up by an employee before issuing a sanction. The complainant alleges that Mr Puna’s absences during the school years were authorized by his direct superior, as explicitly indicated by a letter of the Ministry of the Public Service. SYNECAT, recalling that the SECOPE pay system is automatic and is not the responsibility of individuals, and observing that Mr Puna has not received any remuneration for 60 months (that is, two months after his posting in November 2008), concludes that the situation is the result of an instruction issued by the Ministry of Primary, Secondary and Vocational Education.
2. 871. Finally, SYNECAT adds that there has been no legal action to challenge its congress held in April 2009, during which a national committee was elected under the leadership of its General Secretary, Mr Puna. According to the complainant, Mr Malasi, who was removed from union office by a congress, is being used by the political authorities, as demonstrated by his appointment as a district commissioner.

D. The Committee’s conclusions

1. 872. The Committee notes with interest the Government’s acceptance of a technical assistance mission by the International Labour Office to gather information on the various cases that the Committee has been examining for many years, without any real progress being made in giving effect to its recommendations. The Committee notes the report of the technical assistance mission (annexed to the present report) and welcomes the new spirit of collaboration shown by the Government. It hopes that its recommendations will be given effect in the same spirit.
2. 873. The Committee recalls that the present case concerns allegations of the interruption of the congress of the complainant organization, the National Union of Teachers in Registered Schools (SYNECAT), by police forces in April 2009 and acts of harassment against the General Secretary of the union since then (suspension of his pay, and punishment for “desertion”).
3. 874. The Committee notes the elements provided in reply by the Government in January 2013 and the response by the complainant organization in a communication in April 2013. The Committee also notes the additional information provided to the mission by the various parties to the present case. However, the Committee observes that certain points raised by the mission required time for the Government to provide adequate replies, which have not yet been supplied to the Office by the Government.
4. 875. The Committee notes that, according to the complainant, its activities are still subject to interference by the authorities. It reports that the Ministry of Primary, Secondary and Vocational Education is continuing to work with a committee of the dissident union led by its former president, who was removed from office in March 2008, and whose position was abolished by the extraordinary congress of the union held in April 2009. In this regard, the Committee notes the general report of the union’s extraordinary congress, held in April 2009, which reports the election of a new national committee under the leadership of a General Secretary (Mr Puna) and two Deputy General Secretaries (Mr Tshimbalinga Kasanji and Mr Nguizani Za Makiona), and which contains the indication that the congress was opened and closed by a representative of the Ministry of Employment, Labour and Social Welfare. The Committee further notes the notarized document dated 16 May 2013 of the Chancellor’s Office certifying the submission to the authorities of the general report of the extraordinary general congress of SYNECAT in 2009. The Committee observes that the existence of an internal conflict within SYNECAT between a faction led by Mr Malasi and the one led by Mr Puna is confirmed both by the Government and by the representative of the sub-provincial coordination office for registered catholic schools of Lukunga, whom the mission met.
5. 876. The Committee recalls that in the event of internal conflicts within a union, and particularly when two executive committees each proclaim themselves to be the legitimate one, the dispute should be settled by the judicial authority or an independent arbitrator, and not by the administrative authority [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 1121]. As there does not appear to have been a judicial ruling on the case, the Committee requests the Government to indicate whether the national committee elected by the extraordinary congress in April 2009 is recognized by the authorities as representing SYNECAT and, if so, whether its leaders participate in consultations and negotiations in the sector.
6. 877. With regard to the allegations of the intervention by the police forces during the April 2009 congress of SYNECAT, and in the absence of information from the Government on this point, the Committee once again recalls the principle of the inviolability of trade union premises and assets and urges the Government to ensure compliance in future with the principle that the public authorities may not insist on entering union premises without prior authorization from the union or without having obtained a legal warrant to do so.
7. 878. The Committee also notes the complainant’s allegations that the Government refuses to deduct the union dues of the members of the organization at source. In that respect, the Committee, recalling that the deduction of trade union dues by employers and their transfer to trade unions is a matter which should be dealt with through collective bargaining between employers and all trade unions without legislative obstruction [see Digest, op. cit., para. 481], invites the Government and the complainant organization to negotiate arrangements for the deduction at source of the union dues of teachers who are members of the organization. The Committee requests the Government to keep it informed of any developments in this regard.
8. 879. Moreover, the Committee notes with concern the information provided to the mission by the complainant concerning the personal situation of the General Secretary of SYNECAT, Jean Bosco Puna. The Committee notes in particular the allegation that he was the target of an attempted murder in March 2013, during which his wife is reported to have been seriously wounded, and that no investigation is reported to have been opened yet by the police despite the lodging of a complaint. The Committee recalls that, in the event of assaults on the physical or moral integrity of union leaders or members, an independent judicial inquiry should be instituted immediately with a view to fully clarifying the facts, determining responsibility, punishing those responsible and preventing the repetition of such acts [see Digest, op. cit., para. 50]. The Committee urges the Government to indicate any investigation conducted into the complaint filed by Mr Puna in March 2013 and its findings.
9. 880. The Committee also notes with concern the indication that Mr Puna was the subject of arbitrary arrest on 12 July 2013 during a public general meeting with State officials and is reported to have been detained for 24 hours in Lufungula prison. The Committee notes that, according to the complainant, Mr Puna’s rapid release was only due to the arrival of the ILO mission the next day. Noting the lack of information from the Government on this incident, and recalling that the arrest and detention of trade unionists without any charges being laid or court warrants being issued, constitutes a serious violation of trade union rights [see Digest, op. cit., para. 69], the Committee urges the Government to indicate the reasons for the arrest of the General Secretary of SYNECAT on 12 July 2013, and his detention for 24 hours.
10. 881. Finally, the Committee notes the indication by the complainant that Mr Puna’s salary has been withheld for 60 months without any valid reason. SYNECAT explains that Mr Puna was declared a “deserter” in 2011 because of his absences for part of the school year due to his nomination in December 2010 on the Inter-Institutional Commission entrusted with the examination of the appeals lodged following the Ordinances of 31 July 2009 and 2 January 2010. In this respect, the Committee notes a communication from the Ministry of the Public Service to the Secretary-General for Primary, Secondary and Vocational Training dated 9 April 2011 (ref. CAB.MIN/FP/USKD/Syn/535/LAW/187/2011), indicating that the work of the Inter-Institutional Appeals Commission for State Employees and Officials was still continuing on 9 April 2011 and that, in view of the workload, which was described as intensive, the members appointed by the Order of 20 December 2010, including Mr Jean Bosco Puna, General Secretary of SYNECAT and an active member of the Commission, should be classified administratively as being detached, in accordance with the Conditions of Service of Career Personnel of State Public Services, until otherwise indicated.
11. 882. In this regard, the Committee notes the Government’s indication in its reply that Mr Puna was punished for “deserting” his post as a French teacher at the Notre Dame de Fatima Institute in Kinshasa, to which he had been assigned. He is reported to have accumulated over 155 days of unjustified absence during the 2009–10 and 2010–11 school years. The Government emphasizes that the Institute was indulgent in issuing the punishment so belatedly as the rules of the schools in the catholic network classify 15 days of unjustified absence during a school year as “desertion”.
12. 883. The Committee also notes that the mission met a representative of the sub-provincial coordination unit for registered catholic schools in Lukunga, Sister Philomène Muntumpe Cisopa. The Committee notes that the coordination unit is responsible for the Notre Dame de Fatima Institute, to which Mr Puna was posted in 2008 as a French teacher. The Committee notes the indication that the sub-provincial coordination unit assigned Mr Puna to the Notre Dame de Fatima Institute by an order of 17 November 2008 and that he came personally to pick up his assignment order on 19 November 2008. He is also reported to have decided to make the arrangements himself with SECOPE, instead of the school administration, and that the Institute did not subsequently concern itself with the payment of his salary. The Committee notes that, according to the representative of the sub-provincial coordination unit, Mr Puna had been an absentee teacher since his posting in 2008. Between 2008 and 2011, he was present very infrequently and seldom performed his job, thereby leaving the Institute to manage his absences through a replacement teacher. The result was that, in view of his absences (he was present for seven days during the 2009–10 school year, and five days out of 157 during the 2010–11 school year, according to a report of the Notre Dame de Fatima Institute that was provided to the mission), the sub-provincial coordination unit decided to declare Mr Puna a “deserter” so that it could obtain another posting to replace him. The decision of the coordination unit was taken following a meeting with the person concerned on 6 April 2011. According to the sub-provincial coordination unit, the nomination of Mr Puna to the Commission entrusted with examining the appeals filed following the Ordinances of 31 July 2009 and 2 January 2010, which was originally for 90 days as from January 2011, did not dispense him from carrying out his duties as a teacher in the school. The sub-provincial coordination unit also considers that the communication of 9 April 2011 of the Ministry of the Public Service to the Secretary-General for Primary, Secondary and Vocational Education justifying Mr Puna’s absences (produced after his “desertion” had been proclaimed on 8 April 2011), should have been submitted earlier and addressed in due time to the competent authorities as part of the procedure for the detachment of a replacement teacher.
13. 884. The Committee notes that, according to the information provided to the mission, the sanction for “desertion” handed down to Mr Puna goes back to April 2011, at the time when he was nominated by the Ministry of the Public Service as a member of the Appeals Commission for several months. Moreover, according to the allegations of the complainant, the Ministry of Primary, Secondary and Vocational Education decided, as a punishment, to suspend the payment of his salary from 2009, since when he has been without income. The Committee notes the Government’s explanation that, following the posting of Mr Puna in November 2008, it was the responsibility of the Notre Dame de Fatima Institute to make the necessary arrangements with SECOPE for the payment of his salary, but that Mr Puna expressed the desire to deal in person with the arrangements with SECOPE, thereby relieving the Institute of its responsibility in that regard.
14. 885. In light of the divergent information provided by the Government and the complainant on the circumstances and duration of the suspension of Mr Puna’s salary, the Committee urges the Government to take all the necessary measures to find an explanation for the non-payment of Mr Puna’s remuneration and to inform the Committee without delay. If it is found that this trade union leader’s salary has been withheld since 2009 for having carried out legitimate trade union activities, or if he has not received his salary due to a problem in the functioning of the electronic pay system, whoever may be responsible for the problem, the Committee expects the Government to take all the necessary measures to ensure the payment of the wages that are due.
15. 886. Finally, the Committee recalls that it is not competent to comment on a sanction issued against an official for objective reasons, unless the sanction appears to originate from considerations relating to the exercise of legitimate trade union activities. In the present case, the Committee believes that the situation which resulted in Mr Puna being punished as a “deserter” in April 2011 could have been the result of a misunderstanding or lack of communication between Mr Puna, who was at the time detached on official duties, in his capacity as a trade union leader, and the various administrative departments concerned, including the school to which he was posted at the time. If necessary, the Committee requests the Government, in a spirit of conciliation, to engage in dialogue with SYNECAT with a view to finding an adequate solution for the professional situation of its General Secretary. The Committee requests the Government to keep it informed of any developments in this regard.