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

1. 902. The Committee last examined this case at its March 2013 meeting, when it presented an interim report to the Governing Body [see 367th Report, approved by the Governing Body at its 317th Session (March 2013), paras 1127–1141].
2. 903. At its October 2013 meeting [see 370th Report, para. 11], the Committee noted that a technical assistance mission visited the country in July 2013 in order to gather relevant information on the case.
3. 904. 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. 905. In its previous examination of the case in March 2013, the Committee made the following recommendations [see 367th Report, para. 1141]:
   • (a) The Committee regrets that, despite the time that has elapsed since the presentation of the complaint, the Government has not replied to the complainant’s allegations, even though it has been requested several times, including through an urgent appeal, to present its comments and observations on this case. The Committee notes with deep concern that this is the sixth successive case since 2009 for which the Government has failed to provide any information in reply to the allegations presented by the complainants. The Committee firmly urges the Government to be more cooperative in future.
   • (b) The Committee urges the Government to carry out an investigation without delay into the allegations of anti-union harassment and stoppage of pay of members of the Congolese Labour Confederation (CCT)/Land Affairs union committee, namely Mr Ruphin Kisenda, Mr Léon Bakaka, Mr Zacharie Lukabya, Mr Benjamin Milabyo and Mr Justin Lohekele, and to provide detailed information on their current employment status and the situation of the CCT/Land Affairs within the administrative department in question.

B. The Committee’s conclusions

1. 906. The Committee notes with interest that the Government accepted a technical assistance mission from the International Labour Office in order to gather information on the various cases that the Committee has been examining for many years, without any real progress being noted regarding action taken further to its recommendations. The Committee has taken note of the report of the technical assistance mission (see the appendix to the present document) and welcomes the new spirit of cooperation demonstrated by the Government. It hopes that the recommendations that it makes will be acted upon in the same spirit.
2. 907. The Committee recalls that the present case is concerned with alleged acts of harassment against trade union members of the CCT/Land Affairs, in particular the stoppage of pay and social benefits and subsequent dismissal from the Department of Land Affairs.
3. 908. The Committee notes that the ILO mission met the trade union representatives involved in the present case, namely Mr Ruphin Kisenda, Mr Léon Bakaka, Mr Zacharie Lukabya and Mr Benjamin Milabyo. It notes that Mr Justin Lohekele, who the complaint also concerns, took compulsory retirement further to a presidential ordinance of 31 July 2009. The Committee notes that the mission also met representatives of the Department of Land Affairs at its headquarters in Kinshasa. The mission was also received by Mr Bokoko, assistant to the Secretary-General for Land Affairs, the director of human resources and an inter-union committee. The Committee notes that the mission received documentation from the CCT relating to correspondence in support of its allegations, but that the documents requested by the mission from the administration that could support the statements of the representative of the Department of Land Affairs were not handed over to the mission on the spot or subsequently sent to the Office. The Committee regrets this situation, which prevents it from reaching a decision in full knowledge of the facts. However, the Committee considers that, in the light of the mission report, the information now available provides some clarification of the events that have occurred in the present case.
4. 909. Firstly, the Committee notes the indication that the union representatives in question were all members of the Free Trade Union of the Congo (SLC) at the start of the case in 2008. It was in the capacity of SLC representatives that the persons concerned were initially subjected to anti-union harassment and disciplinary measures. Allegedly, they were wrongfully removed from union office by their original union (September 2009) and subsequently joined the CCT (July 2010), still within the Department of Land Affairs.
5. 910. The Committee notes that Mr Léon Bakaka, first vice-president of the SLC committee (and later of the CCT committee), challenged an assignment order in September 2008, invoking his trade union mandate, and immediately received notification of his suspension for defamatory remarks against those in authority and of the opening of disciplinary proceedings. The Committee notes the statement by the CCT that, under the disciplinary regulations for public service employees, the latter may not be penalized in this way before having the opportunity to defend themselves during the disciplinary proceedings. The Committee notes the indication that, since the date of his suspension, Mr Bakaka has not been receiving the part of his pay corresponding to the bonus for assignment to the Department of Land Affairs (which is in addition to basic pay and constitutes the biggest component in a public employee’s remuneration). The Committee observes in this respect that the information at its disposal shows that the administration has not provided any more details regarding the defamatory remarks which Mr Bakaka is alleged to have made.
6. 911. The Committee is bound to draw attention to Convention No. 135, ratified by the Government, which provides explicitly that workers’ representatives in the undertaking shall enjoy effective protection against any act prejudicial to them, including dismissal, based on their status or activities as workers’ representatives or on union membership, or participation in union activities, in so far as they act in conformity with existing laws or collective agreements or other jointly agreed arrangements [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 800]. Furthermore, observing that no information has been supplied on the outcome of the disciplinary proceedings, and noting that the person concerned has filed an appeal with the judicial bodies but no response appears to have been made, the Committee recalls that respect for the principles of freedom of association clearly requires that workers who consider that they have been prejudiced because of their trade union activities should have access to means of redress which are expeditious, inexpensive and fully impartial. An excessive delay in processing cases of anti-union discrimination, and in particular a lengthy delay in concluding the proceedings concerning the reinstatement of the trade union leaders dismissed by the enterprise, constitute a denial of justice and therefore a denial of the trade union rights of the persons concerned [see Digest, op. cit., paras 820 and 826].
7. 912. In view of these circumstances, the Committee can only deplore the time that has elapsed since the opening of the disciplinary proceedings and deeply regret the lack of information from the authorities, more than five years later, concerning the outcome of these proceedings. The Committee therefore urges the Government to take all the necessary steps to ensure the immediate reinstatement of Mr Bakaka in his post at the Department of Land Affairs and the payment of the salary that has been due to him since his suspension, pending a final decision on his case from the administration and subject to any appeal. The Committee expects the Government to report on the measures taken to this end in the very near future.
8. 913. Moreover, the Committee notes with concern the allegations reiterated by the CCT to the mission concerning the harassment of trade union representatives of the CCT/Land Affairs committee for complaining of poor management in their administrative department. The acts of harassment include attempts at forcible confinement reported by the persons concerned in January 2009, “punitive” assignments, suspension of payment of the assignment bonus and even of the whole salary from April to June 2011, the opening of disciplinary proceedings and the barring of entry to the workplace. The Committee observes, according to the information supplied to the mission, that the union representatives in question complained in communications to various administrative and judicial authorities about the treatment they had received but there has been no response.
9. 914. The Committee notes that, according to the administration, all attempts at dialogue with Mr Kisenda, Mr Bakaka, Mr Lukabya and Mr Milabyo have failed since they systematically acted in such a way as to prevent the smooth functioning of the department (obstruction of entrances, public disturbances). They reportedly refused to answer any summons from the disciplinary board or to comply with assignment orders, with the result that their original trade union removed them from office. Nevertheless they joined another union (the CCT) and continue to create public disturbances in order to be heard. According to the administration, in view of the obstructions caused, the Minister for Land Affairs referred their case to the Minister for the Public Service in 2011. They were summoned to appear before a disciplinary board but they failed to appear. The disciplinary board reportedly recommended that they be removed from trade union office in June 2011. On the instruction of the Minister for Land Affairs, the four union representatives are now barred from the premises of the Department of Land Affairs for disturbances of public order, pending the outcome of the disciplinary proceedings.
10. 915. The Committee notes that there are discrepancies in the analysis of the situation of union representatives Mr Kisenda, Mr Bakaka, Mr Lukabya and Mr Milabyo. However, the exchanges of correspondence at its disposal enable it to reach the following conclusions.
11. 916. Within both the SLC and the CCT, the union representatives asked for clarification concerning the management of the administrative department concerned (2009–2011). The Committee notes the administration’s refusal to agree to the request for a public debate on a number of grounds which appear to be contrary to the principles of freedom of association, in particular that the union committee included a civil servant who had reportedly taken compulsory retirement further to a presidential ordinance and was therefore no longer entitled to hold union office. The Committee also observes that, further to the information from the CCT concerning the establishment of the new CCT/Land Affairs union committee, the Secretary-General for Land Affairs, in his reply to the organization, indicates that since one of the committee members (Mr Lohekele) took compulsory retirement further to a presidential ordinance, he can no longer perform union functions. In this regard the Committee recalls the principle that, given that workers’ organizations are entitled to elect their representatives in full freedom, the dismissal of a trade union leader, or simply the fact that a trade union leader leaves the work that he or she was carrying out in a given undertaking, should not affect his or her trade union status or functions unless stipulated otherwise by the constitution of the trade union in question [see Digest, op. cit., para. 411].
12. 917. The Committee also notes that the Secretary-General, in his reply, observes that the conduct of trade union affairs can only be entrusted to persons “who show respect for laws and regulations”. This formulation amounts to questioning the credibility of the CCT representatives and not recognizing their status. Apart from the principle according to which the determination of conditions of eligibility for union membership or union office is a matter that should be left to the discretion of union by-laws and the public authorities should refrain from any intervention which might impair the exercise of this right by trade union organizations [see Digest, op. cit., para. 405], the Committee wishes to draw the Government’s attention to the fact that such remarks by the public employer questioning the integrity of trade union leaders through sweeping statements concerning failure to “show respect for laws and regulations” is not at all conducive to the development of harmonious labour relations and infringes the right to elect trade union leaders in full freedom.
13. 918. Finally, the Committee notes the circular of 19 April 2011 from the Secretary-General for Land Affairs to all property registrars and chiefs of land registry divisions in Kinshasa describing employees Mr Bakaka, Mr Lukabya, Mr Kisenda and Mr Milabyo as “deserters” and denying them access to their workplace (“the premises of their division”) pending the resolution of their disciplinary case referred to the Minister for the Public Service. He further notes that, on 20 January 2012, an official communiqué from the Secretary-General for Land Affairs states that the four employees are barred from entering their office pending the closure of the disciplinary proceedings and threatens severe penalties for any employee disrupting the smooth operation of the department. Lastly, in a letter of August 2012 to the Secretary-General for Land Affairs, the Minister for Land Affairs takes note of a letter received from the Land Affairs inter-union committee castigating the anti-administration conduct of the four employees and confirming the ban on entry to the premises of the central administration and the divisions pending the closure of the cases before the disciplinary board.
14. 919. According to the Committee’s understanding, the disciplinary proceedings were opened because of the refusal by the persons concerned to take up their new assignments, which they view as punitive measures. The Committee further notes that, according to the administration, the disciplinary board recommended that the four employees be removed from union office in June 2011. In the absence of more up-to-date information and if the information is proven, the Committee is bound to regret the time that has elapsed between the recommendation being made and the implementation thereof, inasmuch as the administration confirmed during the mission of July 2013 that no decision had yet been taken with regard to the disciplinary cases involving the trade unionists concerned. The latter also confirmed to the mission that they did not know the outcome of the disciplinary proceedings, as well as contesting the manner in which these were conducted. The Committee urges the Government to send a copy, if applicable, of the recommendations of June 2011 of the disciplinary board concerning the proceedings against Mr Kisenda, Mr Bakaka, Mr Lukabya and Mr Milabyo, and also any information on action taken with respect to these recommendations.
15. 920. Noting the lack of information concerning the disciplinary board’s recommendations, the Committee can only deeply deplore the treatment to which CCT/Land Affairs union committee members (Mr Kisenda, Mr Bakaka, Mr Lukabya and Mr Milabyo) have been exposed for three years. In view of the above, and in view of the exceptionally long period of time that has elapsed since the disciplinary measures were initiated, the Committee urges the Government to take the necessary steps to ensure the immediate reinstatement of the trade unionists and the retroactive payment of the salaries owed to them, pending the notification of a final decision on their case and subject to any appeal. In view of the circumstances, if there are compelling objective reasons that make reinstatement at the original workplace impossible, the Committee expects the authorities to negotiate with the employees concerned to find an alternative solution that is satisfactory to the parties. The Committee requests the Government to indicate any measures taken in this respect. Under the present circumstances, the Committee cannot but firmly recall that protection against all acts of anti-union discrimination in respect of their employment is particularly desirable in the case of trade union officials because, in order to be able to perform their trade union duties in full independence, they should have a guarantee that they will not be prejudiced on account of the mandate which they hold from their trade unions [see Digest, op. cit., para. 799]. The Committee expects the Government to ensure full observance of this principle in the future.
16. 921. As regards the allegations that the assignment bonus for the trade union representatives was withheld, in the absence of more detailed information on the matter, the Committee urges the Government to conduct an inquiry without delay into the reasons for such a decision on the part of the competent ministry and to keep it informed of the outcome. If such a decision proves to have been taken in retaliation for legitimate trade union activities, the Committee expects the situation to be rectified immediately, particularly through the payment of all suspended bonuses that are still owed to the trade unionists.
17. 922. Moreover, the Committee observes that, by barring the four employees, all of them members of the CCT/Land Affairs union committee, from entry to the workplace, the decision taken by the administration may have had an adverse impact on the exercise of the activities of the trade union at the Department of Land Affairs.
18. 923. Noting the reasons put forward by the Government to justify this ban, namely that the trade union representatives in question were taking systematic action to prevent the smooth running of the department (obstruction of entrances, public disturbances), the Committee recalls that although the right of holding trade union meetings is an essential aspect of trade union rights, the organizations concerned must observe the general provisions relating to public meetings, a principle that is also contained in Article 8 of Convention No. 87, which provides that workers and their organizations, like other persons or organized collectivities, shall respect the law of the land. However, for the right to organize to be meaningful, workers’ organizations should be able to further and defend the interests of their members, by enjoying such facilities as may be necessary for the proper exercise of their functions as workers’ representatives, including access to the workplace of trade union members. Access to the workplace should not of course be exercised to the detriment of the efficient functioning of the administration or public institutions concerned. Therefore, the workers’ organizations concerned and the employer should strive to reach agreements so that access to workplaces, during and outside working hours, should be granted to workers’ organizations without impairing the efficient functioning of the administration or the public institution concerned [see Digest, op. cit., paras 143, 1106 and 1109]. The Committee therefore urges the Government to ensure that agreements are concluded to enable the CCT union leaders, including the members of the CCT/Land Affairs union committee, to have free access to the workers of the administrative department concerned in order to conduct normal trade union activities.
19. 924. The Committee notes with deep concern that, in the present case, the trade union representatives affected by measures that they considered to be of an anti-union nature have had recourse, on behalf of the SLC, the CCT and individually, to the various administrative and judicial authorities of the country but no response has been made to their requests. The Committee notes with concern the indication from the CCT that 89 items of correspondence sent to the authorities have received no reply. The Committee recalls that the Government is responsible for preventing all acts of anti-union discrimination and it must ensure that complaints of anti-union discrimination are examined in the framework of national procedures which should be prompt, impartial and considered as such by the parties concerned. Where cases of alleged anti-union discrimination are involved, the competent authorities dealing with labour issues should begin an inquiry immediately and take suitable measures to remedy any effects of anti-union discrimination brought to their attention [see Digest, op. cit., paras 817 and 835].