Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 389, Juin 2019

1. 365. The present complaint is contained in a communication dated 29 May 2017 from the National Organization of Oil Industry Employees (ONEP). The complainant organization provided additional information in communications dated 12 August 2017 and 30 January 2018.
2. 366. The Government sent its observations on 5 March 2018 and 15 May 2019.
3. 367. Gabon 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. The complainant’s allegations

1. 368. In a communication dated 29 May 2017, ONEP alleges that it was excluded from a collective bargaining process under the dual influence of the Maurel & Prom oil company (hereinafter: the enterprise) and the Government, to the benefit of a group of unelected workers. The complainant organization indicates that, following a strike launched by ONEP at the enterprise, a facilitation agreement was signed on 11 March 2017 between ONEP, the enterprise and the ministers for labour and the oil industry to resume collective bargaining. The complainant alleges that, on 15 March 2017, in violation of the agreement signed on 11 March, the above-mentioned government ministers demanded that ONEP, while collective bargaining was in progress, provide proof of its legality and legitimacy with regard to defending the interests of enterprise employees before any continuation of discussions, further to the resignation of certain members of the ONEP national executive committee and a drop in the number of union members who were up to date with the payment of their dues. ONEP considers that this demand constitutes an act of interference and discrimination that violates freedom of association. It rejects the Government’s claim that the union’s executive committee currently comprises three officers out of the ten stipulated in the union rules, whereas these rules require executive committee decisions to be adopted by a simple majority to be valid, in other words by six members (five members plus one).
2. 369. The complainant organization explains that its national executive committee, which was elected at its congress on 14 September 2013 for a four-year term, lost four of its officers through resignation, namely: (i) the national secretary for regulations, external relations and communication, in October 2014; (ii) the national secretary for the budget and finance, in December 2014; (iii) the national secretary for education and training, in June 2015; and (iv) the general secretary, in June 2016. However, on 13 March 2016, the first three of the above-mentioned officers were replaced, in accordance with section 60 of the union rules, as attested to by the memorandum of 14 March 2016, which was disseminated to the ONEP membership. As regards the post of general secretary, section 25 of the union rules provides that, in the event of prolonged absence or unavailability of the general secretary for whatever reason, formally notified by the latter, the deputy general secretary shall act as a replacement in the meantime.
3. 370. In response to the Government’s allegations that ONEP lost a number of members because they were no longer up to date with the payment of their union dues, the complainant organization explains, referring to its union rules, that any failure to pay dues shall only result in loss of ONEP membership if thus decided by the union’s national council.
4. 371. Moreover, ONEP denounces the acts perpetrated by the police and security forces against employees who were on strike at the enterprise’s onshore site on 23 February 2017, despite the fact that plant safety was maintained and the site was operational through the minimum service which had been established. The union states, with supporting photos, that the police and security forces (equipped with firearms, tear-gas canisters, balaclavas and truncheons) violently dispersed the workers on the strike picket without any valid reason, injuring a number of workers, four of whom had to be taken to hospital, and alleges that the strikers – comprising all the staff of Gabonese nationality (90 per cent of the workforce) – were taken in army trucks from the workplace (a production plant) to a location more than 5 km away in the forest.
5. 372. In a communication dated 12 August 2017, the complainant organization indicates that the Court of Appeal in Port-Gentil issued a temporary injunction on 23 March 2017, rejecting the claim that ONEP lacked legal capacity to act owing to a flaw in the composition of its executive committee because the enterprise had not supplied any proof.
6. 373. In a communication dated 30 January 2018, ONEP indicates that, in the context of a dispute between ONEP and the Petroleum Products Storage Corporation of Gabon (SGEPP), the minister for the oil industry again challenged the legitimacy of the current ONEP executive committee and stated that he wished to hold direct discussions with the group of staff representatives. Another example cited in support of the complaint concerns the collective dispute between ONEP and the company Eurest Support Services SA, in which the minister for the oil industry was only willing to deal with the staff representatives, who, after refusing to accept any invitation without the presence of ONEP, were reprimanded and even threatened with removal from office.

B. The Government’s reply

1. 374. In a communication dated 5 March 2018, the Government reviews the background of the matter at issue. The Government explains that ONEP gave notice of the strike to the enterprise on 15 February 2017 and negotiations relating to it were initiated under the supervision of the ministries responsible for labour and the oil industry. During the negotiations, ONEP decided on an indefinite strike and there were several instances of physical assault and abuse endangering the operations of the enterprise and the freedom to work. The enterprise management therefore had recourse to the courts to challenge the declaration of an indefinite strike and seek to have it revoked. The interim relief judge, by an injunction of 25 February 2017, ordered the revocation of the strike declaration, having established non-compliance with section 343 of the Labour Code and, in particular, a failure to establish a minimum service and having considered that the strike constituted a manifestly unlawful disturbance on the premises of the enterprise. This order was upheld by the ruling of 25 April 2017 of the Port-Gentil Court of Appeal. The Government observes that ONEP did not seek a review of the appeal ruling and indicates in its communication dated 15 May 2019 that legal proceedings have been closed.
2. 375. The Government declares on two occasions that its intervention in the dispute between the enterprise and ONEP took place at the request of the enterprise management pursuant to the judicial ruling issued in this matter and with the sole purpose of maintaining the instruments of work of this enterprise operating in a key sector of the national economy.
3. 376. As regards the allegation of a violation of collective bargaining, the Government indicates, producing correspondence dated 26 November 2016 and 13 February 2017 relating to this matter, that it was at the explicit request of ONEP that the enterprise management removed from office all the staff representatives previously elected under the ONEP banner. Since they now had nobody to represent them in the negotiations in progress, the employees signed a petition to continue the negotiations “without ONEP” and appointed ten members from among their colleagues, including three representative spokespersons. It was these three spokespersons who signed the collective labour dispute conciliation agreement, dated 22 March 2017. The Government observes that its action in this process was solely on the grounds that the parties needed support in the planned negotiations and, in particular, that the enterprise management needed a legitimate discussion partner in the context of the negotiations.
4. 377. The Government considers that ONEP’s conduct was aimed at serving particular interests, to the detriment of those of the employees, going so far as to undermine the structure and balance of the enterprise, and that in many cases the employees did not identify with the demands made and strikes initiated by ONEP. As proof of this, the Government cites the recent case at the SGEPP, where the employees distanced themselves from the strike launched by ONEP, and refers in support of its argument to a note dated 25 January 2018 from the special labour inspectorate responsible for the oil industry.

C. The Committee’s conclusions

1. 378. The Committee notes that the complainant organization’s allegations relate to: (i) interference by the Government in the functioning of the National Organization of Oil Industry Employees (ONEP) and the exclusion of this trade union from the collective bargaining process; and (ii) obstruction of the right to strike and undue deployment of the police.
2. 379. As regards the allegations of government interference in the functioning of ONEP and the exclusion of this trade union from the collective bargaining process, the Committee notes that the complainant organization alleges that: (i) following the strike action launched by ONEP at the oil enterprise, a facilitation agreement was signed on 11 March 2017 by ONEP, the enterprise and the ministers for labour and the oil industry to resume collective bargaining and that; (ii) on 15 March 2017, the aforementioned government ministers demanded that ONEP, while collective bargaining was in progress, provide proof of its legality and legitimacy with regard to defending the interests of enterprise employees before any continuation of discussions, further to the resignation of certain officers of the ONEP national executive committee and a drop in the number of union members who were up to date with the payment of their dues. In this regard, the Committee notes the contradictory observations brought to its attention: according to the Government, the current ONEP executive committee has three officers out of the ten stipulated by the union rules, which prevents it from achieving the required majority for taking decisions, whereas ONEP states that all the members who had resigned were replaced by 13 March 2016, except for the general secretary, whose duties are being performed by the deputy general secretary, in accordance with union rules.
3. 380. The Committee notes that the conciliation agreement of 22 March 2017 states that “instead of ONEP, which has been unable, at the request of members of the Government, to give proof of its legitimacy or legality for defending the interests of the employees [of the enterprise], the latter have freely appointed, further to general assemblies, ten representatives including three spokespersons”. The Committee observes that 11 days earlier neither the Government nor the enterprise, both of which were signatories to the facilitation agreement of 11 March 2017, had raised such an objection, and the facilitation agreement had been signed by the ONEP deputy general secretary. The Committee notes in this regard that the information concerning the replacement of the members who had resigned from the ONEP national executive committee, as communicated in the context of the present complaint, was not brought to the attention of the other signatories by the complainant, since the latter considered it a case of interference in the union’s internal affairs, especially as the Government’s request also related to proving the number of union members who were up to date with the payment of their dues.
4. 381. The Committee also observes, according to the information supplied by the Government, that: (i) ONEP, by communications dated 26 November 2016 and 13 February 2017, asked the enterprise management to remove from office on disciplinary grounds all the staff representatives elected under the ONEP banner; (ii) since they no longer had anybody to represent them in the negotiations in progress, the employees signed a petition to continue the negotiations “without ONEP” and appointed ten members from among their colleagues, including three representative spokespersons; and (iii) it was these three spokespersons who signed the collective labour dispute conciliation agreement, dated 22 March 2017.
5. 382. The information brought to the Committee’s attention by the Government shows that the issue of legitimacy for representing workers at the enterprise seems to involve the composition of the national executive committee, the presence of ONEP representatives at the enterprise (without making it clear whether the latter had already been removed from office in March 2017), and the status of ONEP members, since one of the conditions laid down by the Government for the continuation of negotiations with ONEP was the need for the union to indicate whether its members were up to date with the payment of their dues.
6. 383. The Committee considers that the latter question cannot be a prerequisite for the continuation of negotiations, including on the grounds that the union rules provide that any failure to pay dues shall only result in loss of membership if thus decided by the ONEP national council, the union’s supreme authority in the interval between congresses. The Committee wishes to recall that workers and employers should in practice be able to freely choose which organization will represent them for purposes of collective bargaining [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 1359]. However, the Committee observes that the issue of the removal from office of the staff representatives elected under the ONEP banner, at the union’s own request, created additional confusion regarding the legitimate representation of the workers. Lastly, the Committee notes the complainant organization’s indication that the Port-Gentil Court of Appeal issued an injunction on 23 March 2017 rejecting, for lack of proof, the claim that ONEP lacked legal capacity to act owing to a flaw in the composition of its executive committee. The Committee requests the Government and the complainant organization to indicate whether any appeal has been lodged against this decision.
7. 384. As regards the issue of violence perpetrated by the police at the enterprise’s onshore site on 23 February 2017, the Committee notes ONEP’s allegation, with supporting photos, that the police and security forces violently dispersed the workers on the strike picket without any valid reason, injuring a number of workers, four of whom had to be taken to hospital, and that the strikers - comprising all the staff of Gabonese nationality (90 per cent of the workforce) - were taken in army trucks from the workplace (a production plant) to a location more than 5 km away in the forest.
8. 385. The Committee notes that the interim relief judge, by an order of 25 February 2017, ordered the revocation of the strike declaration, finding non-compliance with section 343 of the Labour Code and in particular that no minimum service had been established and that the strike constituted a manifestly unlawful disturbance on the premises of the enterprise. The Committee notes that this order was upheld by the ruling of 25 April 2017 of the Port-Gentil Court of Appeal and that ONEP did not seek a review of the appeal ruling, as reaffirmed by the Government in its communication dated 15 May 2019.
9. 386. Without prejudice to the foregoing, the Committee notes that the Government limits itself to indicating that its intervention in the dispute between the enterprise and ONEP took place at the request of the enterprise management pursuant to the judicial ruling issued in this matter and with the sole purpose of maintaining the instruments of work of this enterprise operating in a key sector of the national economy. Observing that the Government has not supplied any details of the violence denounced by the complainant organization, the Committee wishes to recall that the authorities should resort to calling in the police in a strike situation only if there is a genuine threat to public order. The intervention of the police should be in proportion to the threat to public order and governments should take measures to ensure that the competent authorities receive adequate instructions so as to avoid the danger of excessive violence in trying to control demonstrations that might undermine public order [see Compilation, op. cit., para. 935]. In view of the serious nature of the allegations and the lack of information provided by the Government on this point, the Committee requests the authorities to open an independent investigation without delay to fully establish the facts, apportion responsibility, punish the perpetrators and prevent any repetition of such actions, and requests the Government to keep it informed in this regard.