Observation (CEACR) - adopted 2003, published 92nd ILC session (2004)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Burundi (Ratification: 1993)

The Committee notes that the Government’s report has not been received. It must accordingly repeat its previous comments. The Committee also notes that the International Confederation of Free Trade Unions (ICFTU) sent comments on the application of the Convention on 26 March 2003 and the Confederation of Burundi Trade Unions (COSYBU) sent comments on 3 November 2003 to which the Government has not as yet replied.

The Committee requests the Government to transmit any observations it might wish to make in respect of these comments.

Article 2 of the Convention. 1. Right of public employees without distinction whatsoever to establish and join organizations of their own choosing. In its previous comments, the Committee noted that section 14 of the Labour Code excludes state employees and magistrates from the scope of the Code. The Committee notes with interest the entry into force of Act No. 1/015 of 29 November 2002 issuing regulations on the exercise of the right to organize and the right to strike in the public service. The Committee raises a number of questions in this connection in a request addressed directly to the Government. With regard to magistrates, the Committee noted previously the entry into force of Act No. 1-001 of February 2000 amending the magistrates’ regulations, and observed that the Act contained no express reference to the magistrates’ right of association. Since magistrates are not governed by the same rules as public servants, the Committee again requests the Government to indicate in its next report the provisions that ensure the right to organize of magistrates.

2. Right to organize of minors. For several years, the Committee has been raising the issue of the compatibility of section 271 of the Labour Code with the Convention. Section 271 provides that young people under the age of 18 may not join a trade union without the express permission of their parents or guardians. In its report for 2002, the Government stated that it planned to amend section 271 of the Labour Code so as to enable minors to join trade unions without prior authorization from their parents. The Committee therefore asks the Government once again to indicate the measures taken or envisaged to enable minors who are legally entitled to work, whether as workers or as apprentices, to join trade unions without parental authorization.

Article 3. Right of workers’ and employers’ organizations to draw up their constitutions and rules, to elect their representatives in full freedom, to organize their administration and activities and to formulate their programmes without interference from the public authorities. 1. Election of trade union officers. In its previous comments the Committee noted that the Labour Code sets a number of conditions for holding the position of trade union officer or administrator.

-  Criminal record. Under section 275 of the Labour Code, anyone sentenced to more than six months’ imprisonment without suspension of sentence may not hold trade union office. In its report for 2002, the Government stated that it was planning to amend this provision, after consulting the National Labour Council, in the light of the Committee’s observation that conviction for an act which, by its nature, does not call into question the integrity of the person concerned and implies no real risk for the performance of trade union duties should not constitute grounds for exclusion from trade union office.

-  Belonging to the occupation. Section 275(4) of the Labour Code requires trade union leaders to have belonged to the occupation or trade for at least one year. The Committee requested the Government to make the legislation more flexible by allowing persons who formerly worked in the occupation to stand for office or by lifting this requirement for a reasonable proportion of trade union officers. In its report for 2002, the Government stated that it was planning to amend this provision after consulting the National Labour Council.

The Committee requests the Government to report on developments in the amendment of section 275(3) and (4) of the Labour Code and to provide copies of the amendments.

2. The right to strike. In its previous comments the Committee raised the matter of the series of compulsory procedures to be followed before taking strike action (sections 191-210 of the Labour Code) which appear to authorize the Minister of Labour to prevent all strikes. The Committee notes in this connection the observation by the ICFTU to the effect that there are conditions of a procedural nature which empower the authorities to determine whether or not a strike is lawful. In practice, this has enabled the authorities to prevent or end strikes on the grounds that they would be detrimental to the national economy and sought to support the enemies (sic) of the Government. Lastly, in the course of the last three years several trade union leaders have been imprisoned for calling strikes. The Committee recalls that the right to strike is one of the essential means available to trade unions in order to further and defend the interests of their members. It may be restricted or prohibited only in the following three instances: (1) where public servants exercise authority in the name of the State; (2) in essential services in the strict sense of the term, that is, services the interruption of which would endanger the life, health or safety of the whole or part of the population; (3) in the event of an acute national crisis. The Committee further recalls that penalties may be imposed on strikers only if the prohibitions, restrictions or conditions pertaining to the exercise of the right to strike are consistent with the principles of freedom of association. Furthermore, even in the event of non-compliance with prohibitions or restrictions that are consistent with the principles of freedom of association, the penalties imposed must be commensurate with the seriousness of the offence; measures of imprisonment should accordingly be avoided for peaceful strikes (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 179). In these circumstances, the Committee again requests the Government to provide the draft text implementing the Labour Code concerning procedures for the exercise of the right to strike to which it referred in its previous reports, so that the Committee may ascertain whether it is consistent with the provisions of the Convention, and to reply to the ICFTU’s observations on this matter.

The Committee likewise noted previously that under section 213 of the Labour Code strikes are lawful when they are called with the approval of a simple majority of the employees of the workplace or enterprise whereas, according to the Government, in practice no vote was required and a consensus sufficed. The Committee recalls that when voting on strikes, the ballot method, quorum and majority required should not be such that the exercise of the right to strike becomes difficult in practice. If a member State deems it appropriate to establish in its legislation provisions which require a vote by workers before a strike can be held, it should ensure that a count is taken only of the votes cast and that the required quorum and majority are fixed at a reasonable level (see General Survey, op. cit., paragraph 170). The Committee requests the Government to indicate in its next report the measures taken or envisaged to amend section 213 in the light of the above.

Lastly, the Committee notes the ICFTU’s observation that the Government is preventing trade union organizations from choosing their representatives on national tripartite bodies, as a result of which the work of the National Employment Council has come to a standstill. Recalling that trade unions have the right to organize their activities in full freedom without interference from the public authorities, the Committee requests the Government to send its comments in this connection.

The Committee expresses the firm hope that the Government’s next report will be sent and that it will reply to the above matters.

The Committee is also addressing a request on certain other points directly to the Government.