Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 374, Mars 2015

1. 505. The complaint is contained in a communication dated 15 May 2013 from the Trade Union Confederation of Workers of Mali (CSTM).
2. 506. The Government forwarded its observations in a communication dated 27 May 2014.
3. 507. Mali 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), the Workers’ Representatives Convention, 1971 (No. 135), and the Labour Relations (Public Service) Convention, 1978 (No. 151).

A. Allegations by the complainant organization

1. 508. In a communication dated 15 May 2013, the CSTM denounces the mass dismissals in the mining sector as the result of strike action.
2. 509. By way of introduction, with reference to a previous case examined by the Committee on freedom of association which it had submitted (Case No. 2756), the complainant organization regrets that the Committee’s recommendations requesting the complainant’s participation in the national consultative and dialogue bodies had not been followed up. Furthermore, the complainant denounces the Government’s continued interference in the process of appointing the workers’ delegation to the International Labour Conference (ILC), in so far as the Government continues to appoint, to the national delegation, two representatives of the National Union of Workers of Mali (UNTM), including the workers’ titular delegate, and a representative of the CSTM. These appointments, without consultation of the organizations concerned, continue to discriminate against the CSTM. Yet, as regards the representativeness of trade unions, the Government had recognized that the Labour Code was unsuitable and imprecise, and had decided to adopt a draft amendment to the Code.
3. 510. Furthermore, the complainant organization denounces mass dismissals as a result of strike action in the mining sector. According to the CSTM, a total of 531 workers were dismissed. The workers dismissed include 11 trade unionists from the Sadiola Gold Mine Operating Company (SEMOS SA), 27 trade unionists and 31 activists from the company LTA–MALI SA, and 26 trade unionists and 436 workers from the company BCM SA in Loulo. The complainant organization specifies that the trade unionists from the company SEMOS SA were dismissed without the agreement of the labour administration, in violation of sections L.231 and L.277 of the Labour Code of Mali. As regards the other dismissals affecting 84 other trade unionists and 436 workers, the labour administration gave, by contrast, its consent.
4. 511. In accordance with current legislation, an arbitration council presided over by a judge was set up to deal with the two cases. According to the complainant organization, the council supported the workers’ position. The Government stated, however, that it was unable to apply the decision taken by the arbitration council. The complainant requests that the workers be reinstated, as per the provisions of the Labour Code and the decision taken by the arbitration council.
5. 512. Finally, the complainant organization denounces the dismissal of two trade unionists by the Analytical Chemistry and Testing Service–Mali (ALS-MALI) laboratories as a result of having demanded medical appointments for all the workers. This claim was made since 11 workers from the company show levels of lead in their blood two to three times higher than the norm. The complainant organization regrets that the labour administration has never reacted, whereas the case has been referred to it.
6. 513. The CSTM requests that Malian law relating to social protection, the Organisation for Co-operation and Development (OECD) Guidelines for Multinational Enterprises and the collective agreement of mining, geological and hydrogeological enterprises of Mali be observed.

B. The Government’s response

1. 514. The Government submitted its observations in a communication dated 27 May 2014. By way of introduction, as regards the CSTM’s representation on the administrative councils of public authorities and social dialogue bodies, the Government considers that the forthcoming organization of professional elections, which will establish the representativeness of the two national trade union organizations, will resolve the situation. All the parties are in agreement to organize such elections and preparations have begun with technical support from the ILO as of March 2014.
2. 515. As to the alleged interference in the appointment of the workers’ delegation to the ILC, the Government states that, as a rule, the social partners come to an understanding among themselves to appoint the titular and substitute delegates. However, since the social partners were unable to reach agreement on the appointment, the Government decided to maintain the status quo in the representation of workers, i.e. the appointment of the UNTM representative as the titular delegate and the CSTM representative as substitute. The Government specifies that a meeting organized by the Ministry of Labour on the eve of the 2014 Conference did not allow either a compromise to be reached on the matter. It was therefore decided, in agreement with the two trade union organizations, to keep the same configuration, in the expectation that an agreement would be reached on a rotation system, in relation to which the parties have expressed their agreement as of 2015.
3. 516. In general terms, the Government specifies that the issue of the dismissal of workers in the mining sector has been the subject of discussion within the Forum for Democracy, which is a popular platform where officials are called upon by citizens to speak on how to manage public affairs.
4. 517. As regards the company LTA–MALI SA, the Government states that trade union delegates, affiliated to the National Federation of Mining and Energy (FENAME–CSTM), deposited a list of claims relating to the year 2012. On 28 and 29 June 2012, with no prior negotiation, the trade union committee organized a staff strike action on the pretext that it had not been informed sufficiently in advance of the arrival on the site of the labour inspector, dispatched there on 18 June 2012 by the regional labour director in order to undertake conciliation, in which the staff delegates refused to take part. Thereafter, the company requested the Regional Labour Department to authorize the dismissal of 27 trade union representatives for abusing the exercise of the right to strike and the clear intention to harm the company. The workers concerned were summoned by the regional labour director to the regulatory investigation, but they refused to respond to the summons. As a result, the labour inspector granted the requested authorization for dismissal on the merits of the employer’s request.
5. 518. As to the company SEMOS SA, the Government states that the trade union committee, which is also affiliated to FENAME–CSTM, submitted to the company its list of claims for 2012. Following the failed attempt at conciliation undertaken on 28, 29 and 30 May 2012 by the Regional Labour Department, the trade union representatives launched a two-day strike on 31 May and 1 June 2012. The company then referred a request to the labour inspectorate for authorization to dismiss 14 trade unionists as a result of incitement to undertake an illegal strike. The labour inspector refused to authorize the dismissals. However, the company decided to override the labour inspector’s refusal and dismissed the workers concerned in October 2012.
6. 519. Following the dismissals of the trade union representatives of the companies LTAMALI SA and SEMOS SA, the Ministry of Labour was requested by the CSTM on three occasions to: (1) demand referral to an arbitration council, pursuant to section L.225 of the Labour Code; (2) request a hierarchical appeal to annul the dismissals and also to implement the ruling of the arbitration council; and (3) request referral to the Council of Ministers, under section L.229 of the Labour Code (1 August 2013).
7. 520. The Government states that, as regards referral to the arbitration council, section L.224 of the Labour Code provides that, in the absence of agreement, the conciliator drafts a report on the state of the dispute, which it sends to the minister responsible for labour. Under section L.225, the minister summons the arbitration council as soon as the non-conciliation report is received. Pursuant to these legal provisions, the Ministry of Labour set up the arbitration council by decision of 28 September 2012. The council ruled on the demands made by the trade unionists and handed down its ruling on 7 January 2013, as follows: (1) on the lifting of the dismissal measures taken by LTA–MALI SA: “The arbitration council considered that this dismissal decision in no way violated legality. It remains obvious, however, that the dismissal authorization issued by the labour inspector violates sections L.231 and L.277 of the Labour Code. Consequently, the arbitration council notes that the Kayes labour inspector is at fault and not the employer”; and (2) on the dismissals made by SEMOS SA, “the council considered that these dismissals did not form part of the referral and decided to retain the suspension measure. In consequence, it ordered SEMOS SA purely and simply to lift the measure to suspend the 14 union representatives.”
8. 521. As to the request to annul the individual dismissals, the Ministry of Labour informed FENAME that the common law on dismissals excluded any intervention by the minister responsible for labour in the dismissal procedure (letter of 13 February 2013).
9. 522. Finally, as regards the referral to the Council of Ministers, section L.229 of the Labour Code states that: “The decision of the arbitration council is immediately notified and commented on to the parties by the president of the arbitration council. If, within eight days following such notification to the parties, none of those parties has expressed its opposition, the decision becomes enforceable. For disputes relating to essential services, which if interrupted would be likely to endanger human life, security or health, to compromise the normal operation of the national economy, or relating to a vital professional sector, the minister responsible for labour shall, in the case of disagreement on the part of one or both parties, refer the dispute to the Council of Ministers which may enforce the arbitration council’s decision.” The Government states that, in this particular case, the referral to the Council of Ministers was not considered to be appropriate, in so far as mining companies are not considered to be essential services, as per the relevant legislation.
10. 523. Finally, the Government refers to decisions handed down by the Kayes labour court following appeals by certain employees of LTA–MALI SA and the complaint filed by the company, SEMOS SA, claiming damages for the harm caused as a result of the strike.
11. 524. As for the dismissal of 434 workers, including 26 staff delegates, by the company BCM SA in Loulo, the Government indicates that, following a strike launched by the workers on 3 August 2012, the company requested, on 9 August 2012, the regional labour director to authorize the dismissal of 434 workers, including trade union delegates, for an illegal stoppage of work. Following an investigation, the regional labour director granted his authorization to dismiss the workers concerned by letter of 15 August 2012. On 17 August 2012, the company notified each of the workers concerned of his/her dismissal.
12. 525. On 23 August 2012, a group of staff delegates lodged with the national labour director a hierarchical appeal to annul the decision taken by the Kayes regional labour director. Following examination of the case, on 30 August 2012 the national labour director annulled the decision taken by the regional labour director. The company therefore lodged with the Employment Division of the Supreme Court an appeal to annul the decision taken by the national labour director for abuse of authority. For their part, the workers brought a case in the Kita labour court for illegal dismissal. The Government states that in this case justice must follow its natural course.
13. 526. As regards the dismissal of the secretary-general of the trade union committee of ALS MALI laboratories, the Government states that the contradictory investigation conducted by the Regional Labour Department of the district of Bamako, in the presence of a CSTM representative, revealed that Mr Yacouba Traoré made disparaging remarks concerning the director, when the director informed him that he was no longer able to receive him without a prior appointment. Ruling on the case, the regional labour director gave his agreement to the dismissal, on the grounds that the reason put forward was well founded. Following his dismissal, Mr Traoré lodged a hierarchical appeal to annul the authorization decision with the national labour director. The director declared that the appeal was non-receivable by letter of 13 September 2012.
14. 527. As to the case concerning the workers who were victims of high levels of lead, the Government specifies that the Ministry of Health and Public Hygiene set up an investigation mission, consisting of doctors from the health inspectorate, the Health Department and the National Public Health Research Institute. According to the mission report, the blood tests carried out did indeed show a level of lead higher than the norm in certain workers. Experts therefore made recommendations concerning the laboratory and recommendations were sent to the Minister of Labour. Subsequently, on 23 May 2014 the national labour director sent a letter of formal notice to the laboratory in order that it comply with the legal rules relating to occupational health and safety.
15. 528. In conclusion, the Government states that all the technical services of the Ministry of Labour had always assumed their obligations in managing the dismissal of the workers in the mining sector. There were 502 such workers, and not 531 as alleged by the complainant organization.

C. The Committee’s conclusions

1. 529. The Committee notes that this case relates to mass dismissals in several mining sector enterprises. According to the CSTM, the dismissals of workers and staff trade union delegates are the result of strike action and are therefore illegal.
2. 530. The Committee notes that, by way of introduction, the complainant organization refers to a complaint which it had submitted previously (Case No. 2756), denouncing the fact that the Committee’s recommendations had not been followed up. In addition, the Committee notes the Government’s response. The Committee will examine these elements as part of the follow up to Case No. 2756.
3. 531. The Committee notes the allegations by the complainant organization relating to the mass dismissals as the result of strike action in the gold mining sector in 2012. The CSTM specifies that the 531 dismissed workers include numerous trade unionists responsible for initiating the strikes in question. Thus, according to the complainant organization, 11 trade unionists were dismissed by SEMOS SA, 38 trade unionists were dismissed from the company LTA-MALI SA, and 26 trade unionists were dismissed by the company BCM SA in Loulo. The complainant organization specifies that the trade unionists from the company SEMOS SA were dismissed without the agreement of the labour administration, in violation of sections L.231 and L.277 of the Labour Code of Mali, while the dismissal measures affecting the other 84 trade unionists were approved in advance by the administration. The Committee notes that the complainant challenges the legality of the dismissals of trade unionists and also of the dismissal of the 436 workers as the result of strike action.
4. 532. The complainant organization states finally that, in accordance with current legislation, an arbitration council was set up to deal with the dismissals which took place in the companies SEMOS SA and LTA–MALI SA. However, the Government is allegedly unable to implement the arbitration council decision of 7 January 2013 to reinstate the workers.
5. 533. The Committee notes the Government’s detailed response on these cases. As regards the company LTA–MALI SA, the Government affirms that, on 28 and 29 June 2012, with no prior negotiation, the company’s trade union committee organized a staff strike action on the pretext that it had not been informed sufficiently in advance of the arrival on the site of the labour inspector, dispatched there on 18 June 2012 by the regional labour director in order to undertake conciliation, in which the staff delegates refused to take part. Following this strike action, the company requested the Regional Labour Department to authorize the dismissal of 27 trade union representatives for abusing the exercise of the right to strike and the clear intention to harm the company. The workers concerned appear to have been summoned by the regional labour director to the regulatory investigation, but they are alleged to have refused to respond to the summons. As a result, the labour inspector granted the requested authorization for dismissal.
6. 534. As to the company SEMOS SA, the Committee notes that following a failed attempt at conciliation the company’s union representatives launched a two-day strike on 31 May and 1 June 2012. The company then appears to have referred a request to the labour inspectorate for authorization to dismiss 14 trade unionists as a result of incitement to undertake an illegal strike. The labour inspector appears, however, to have refused to authorize the dismissals. The company thus appears to have decided to override the labour inspector’s refusal and dismissed the trade unionists concerned in October 2012.
7. 535. The Committee notes the Government’s statement that the Ministry of Labour received requests on several occasions from the CSTM concerning the dismissal of the union representatives, in particular to demand referral to an arbitration council, pursuant to section L.225 of the Labour Code. The Government specifies that, according to the Labour Code, as a result of failed conciliation proceedings, the minister responsible for labour may refer the matter to an arbitration council. Under these legal provisions, the Ministry of Labour set up an arbitration council by decision of 28 September 2012. The council ruled on the demands made by the trade unionists and handed down its ruling concerning the two companies on 7 January 2013. The Committee notes that the council ruled as follows: on the dismissal measures taken by the company LTA–MALI SA, “the arbitration council considered that this dismissal decision in no way violated legality. It remains obvious, however, that the dismissal authorization issued by the labour inspector violates sections L.231 and L.277 of the Labour Code. Consequently, the arbitration council notes that the Kayes labour inspector is at fault and not the employer.” Concerning the dismissals made by the company SEMOS SA, “the Council considered that these dismissals did not form part of the referral and decided to retain the suspension measure. In consequence, it ordered SEMOS SA purely and simply to lift the measure to suspend the 14 union representatives”.
8. 536. In general terms, the Committee recalls the following internationally recognized principles of freedom of association as regards exercising the right to strike at the national level: no one should be penalized for carrying out or attempting to carry out a legitimate strike. When trade unionists or union leaders are dismissed for having exercised the right to strike, the Committee can only conclude that they have been punished for their trade union activities and have been discriminated against. However, the principles of freedom of association do not protect abuses consisting of criminal acts while exercising the right to strike [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, paras 660, 662 and 667].
9. 537. In this case, the Committee notes that the Government does not provide any information on the follow-up to the arbitration ruling of 7 January 2013. Recalling that more than two years have elapsed since the arbitration ruling was handed down, the Committee expects that appropriate measures have been taken by the public authorities to implement the ruling and requests the Government to report back on this without delay. Noting also the information on the appeals lodged with the Kayes labour court by employees of the company LTA–MALI SA and by the company SEMOS SA, the Committee requests the Government to keep it informed without delay of the decisions handed down in these cases.
10. 538. As for the dismissal of 434 workers, including 26 staff delegates, by the company BCM SA in Loulo, the Committee notes the Government’s statement that, following a strike launched by the workers on 3 August 2012, the company requested, on 9 August 2012, the regional labour director to authorize the dismissal of 434 workers, including trade union delegates, for an illegal stoppage of work. Following an investigation, the regional labour director granted his authorization to dismiss the workers concerned by letter of 15 August 2012. On 17 August 2012, the company notified each of the workers concerned of his/her dismissal. On 23 August 2012, however, a group of staff delegates lodged with the national labour director a hierarchical appeal to annul the decision taken by the Kayes regional labour director. Following examination of the case, on 30 August 2012 the national labour director annulled the decision taken by the regional labour director. The company therefore lodged with the Employment Division of the Supreme Court an appeal to annul the decision taken by the national labour director for abuse of authority. For their part, the workers brought a case in the Kita labour court for illegal dismissal. Noting that these proceedings are still under way, the Committee expects the Government to keep it informed without delay of the results of the different legal procedures, in particular the decision of the Supreme Court, and of the follow-up thereto.
11. 539. Taking into account the time that has elapsed since the dismissal measures, and should the Supreme Court decision be in their favour, the Committee expects that the workers dismissed as the result of strike action be compensated for the prejudice suffered and to avoid reprisals recurring in the future against the exercise of the right to strike at the national level, in accordance with the internationally recognized principles of freedom of association. Finally, if they cannot be reinstated in their posts for objective and compelling reasons, duly noted by the judicial authority, the workers should be compensated in full.
12. 540. Furthermore, the Committee notes the complainant’s allegations relating to the dismissal of two trade unionists by the ALS–MALI laboratories for having demanded medical appointments for all the workers. In this regard, the Committee has pointed out that one way of ensuring the protection of trade union officials is to provide that these officials may not be dismissed, either during their period of office or for a certain time thereafter except, of course, for serious misconduct [see Digest, op. cit., para. 804].
13. 541. The Committee notes that the Government states that the contradictory investigation conducted by the Regional Labour Department of the district of Bamako, in the presence of a CSTM representative, revealed that the Secretary-General of the company’s trade union committee, Mr Yacouba Traoré, made disparaging remarks concerning the director, when the director informed him that he was no longer able to receive him without a prior appointment. Ruling on the case, the regional labour director gave his agreement to the dismissal, on the grounds that the reason put forward was well-founded. Following his dismissal, Mr Traoré lodged a hierarchical appeal to annul the authorization decision with the national labour director. The director declared that the appeal was non-receivable by letter of 13 September 2012. The Committee notes this information.
14. 542. The Committee notes, however, that in its allegations the CSTM refers to the dismissal of two trade unionists. Consequently, the Committee invites the complainant organization to approach the authorities in order to provide the information on the second trade unionist affected by a dismissal measure in the company so as to allow the labour administration to make the necessary inquiries. The Committee requests the Government to keep it informed in this regard.