Observation (CEACR) - adopted 2005, published 95th ILC session (2006)

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

The Committee notes the Government’s report. It also notes the discussions in the Conference Committee on the Application of Standards in 2005 and the comments made by the Confederation of Burundi Trade Unions (COSYBU) (see below).

1. Article 2 of the Convention. Right of public employees without distinction whatsoever to establish and join organizations of their own choosing. With regard to the right of association of magistrates, the Committee notes, according to the information provided by the Government, that Act No. 1/018 of 20 October 2004 does not prohibit magistrates from being organized, but provides that the exercise of the right to strike may be regulated with regard to certain occupational categories. The Government indicates in its report that the Minister of Justice considered that the registration of the Union of Magistrates of Burundi (SYMABU) was not valid as section 14 of the Labour Code excludes magistrates from its scope, but that regulations on the right to organize of magistrates are currently under examination and that an evaluation is being carried out by an ad hoc commission of the situation of all trade unions in relation to the legislation on labour and the public service. Recalling that all public service employees should have the right to establish occupational organizations, the Committee urges the Government to indicate the provisions guaranteeing the right to organize of magistrates.

Right to organize of minors. For several years, the Committee has been raising the matter of the compatibility of section 271 of the Labour Code with the Convention. Section 271 provides that minors under the age of 18 may not join a trade union without the explicit permission of their parents or guardians. While noting the information provided by the Government that this obligation is not taken into account in practice, the Committee once again hopes that the right to organize of young persons under 18 years of age engaged in an occupational activity will be fully recognized without parental authorization being necessary, in the context of the revision of the current Labour Code.

2. Article 3. Right of workers’ and employers’ organizations to draw up their constitutions and rules, elect their representatives in full freedom, organize their administration and activities and formulate their programmes without interference from the public authorities. 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.

(a) Criminal record. Under section 275(3) of the Labour Code, holders of trade union office may not have been sentenced to imprisonment without suspension of sentence for more than six months. In its report in 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 comments that conviction for an act which, by its nature, does not call into question the integrity of the person and implies no real risk for the performance of trade union duties should not constitute grounds for exclusion from trade union office.

(b) 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 previously requested the Government to make the legislation more flexible by allowing persons who had previously worked in the occupation to stand for office or by lifting this requirement for a reasonable proportion of trade union officers.

The Committee notes the Government’s reaffirmation of its intention to amend section 275 of the Labour Code along the lines called for by the Committee. It trusts that the Labour Code will be revised rapidly and that the revision will take fully into account the principles set out above.

Right to strike. In its previous comments, the Committee raised the matter of the series of compulsory procedures to be followed before calling a strike (sections 191-210 of the Labour Code), which appear to authorize the Minister of Labour to prevent all strikes. The Committee noted in this connection the ICFTU’s assertion that there are procedural requirements empowering the authorities to determine whether or not a strike is lawful. In practice, the authorities have been able to prevent or bring an end to strikes on the grounds that they were prejudicing the national economy and were intended to support "the enemies" of the Government. Finally, several trade union leaders have been imprisoned over the past three years for calling strikes. The Committee notes that the Government has confined itself to recalling that the implementing provisions of the Labour Code respecting the conditions for the exercise of the right to strike have not yet been issued. The Committee emphasizes that the right to strike is one of the essential means available to trade unions to further and defend the interests of their members. Accordingly, the Committee urges the Government to reply to the ICFTU’s comments on this matter and to provide the draft text to be issued under the Labour Code on the conditions for the exercise of the right to strike, to which it referred in its previous reports, so that the Committee can examine its conformity with the provisions of the Convention.

Further, the Committee noted 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 by the workers has been required and a consensus has sufficed. The Committee recalled that, when voting on strikes, the ballot method, the quorum and the majority required should not be such that the exercise of the right to strike becomes very difficult in practice. If a member State sees fit to establish in its legislation provisions requiring a vote by workers before a strike can be held, it should ensure that account is taken only of the votes cast and that the required majority and quorum are fixed at a reasonable level (see General Survey on freedom of association and collective bargaining, 1994, paragraph 170). Noting the Government’s statement that the Committee’s proposals for the amendment of section 213 of the Labour Code will be discussed by the social partners, the Committee urges the Government to indicate in its next report the measures adopted or envisaged to amend section 213 in the light of the comments recalled above.

Finally, the Committee notes the information communicated by COSYBU according to which the Government has issued a Legislative Decree prohibiting the exercise of the right to strike and to demonstrate throughout the national territory during the period of the elections. The Committee recalls that the right to strike is one of the essential means available to trade unions to further and defend the interests of their members and that it may only be restricted in the context of the public service (public servants exercising authority in the name of the State), essential services in the strict sense of the term and in cases of acute national crisis (see General Survey, op. cit., paragraphs 148, 158 and 159). The Committee requests the Government to reply to these comments in its next report and to provide information on the abovementioned Legislative Decree.

3. The Committee also notes the information provided by COSYBU concerning the grave violations of trade union rights in relation to several trade union leaders, including the president of COSYBU, and also interference in the representativeness and everyday administration of COSYBU. In addition, COSYBU reports the absence up to now of organizations in the private sector, with workers who endeavour to organize being threatened with dismissal or demotion from their posts. The Committee requests the Government to reply to these comments and expresses the firm hope that the Government will take the necessary measures to ensure that trade union organizations can exercise in full their right to organize their activities freely without interference from the public authorities.

The Committee also requests the Government to provide information on the progress of the work of revising the Labour Code, as well as a copy of the new text once it is adopted. It recalls that the Government has requested the technical assistance of the Office and hopes that this will be provided in the near future.

In addition, a request relating to the legislation on the right to organize of public servants is being addressed directly to the Government.