Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Djibouti (Ratification: 1978)

The Committee notes that the Government’s report has not been received.

1. Comments from workers’ organizations. The Committee notes the comments of the International Trade Union Confederation (ITUC), dated 28 August 2007, reiterating those of the International Confederation of Free Trade Unions (ICFTU) of 2006 concerning violations of the Convention in law (and particularly the new Labour Code) and practice. The ITUC also denounces the brutal repression of strikes, arrests of trade union leaders and the expulsion from the country of the members of an international trade union solidarity mission and an ILO official. The Committee regrets to note that the Government, in a communication of 15 October 2007, confines itself to rejecting the observations made by the ITUC, without providing information on these grave allegations. The Committee recalls that the ICFTU denounced numerous arrests of trade unionists, physical aggression against demonstrators and strikers, measures to banish unionists from their homes, acts of anti-union harassment and, finally, the prohibition to hold trade union elections in the National Mint. The Committee recalls that civil liberties and trade union rights are interdependent and that a truly free and independent trade union movement can only develop in a climate of respect for fundamental human rights.

The Committee also notes the communication dated 11 August 2007 of the General Union of Djibouti Workers (UGTD), also relating to restrictions on trade union rights contained in the new Labour Code.

The Committee urges the Government to order inquiries into the acts of violence that are denounced and to provide without delay its reply to the observations relating to the very serious acts referred to by the ITUC.

The Committee notes Case No. 2450 of the Committee on Freedom of Association (348th Report, November 2007, paras 533 to 560) which relates, among other matters, to the issues raised by the ICFTU and the ITUC.

The Committee also notes the discussion which took place in the Committee on the Application of Standards at the 96th Session of the International Labour Conference (June 2007) concerning the application of the Convention by Djibouti. It notes in particular that the Government accepted a direct contacts mission in order to clarify the situation with regard to all the issues raised. The Committee trusts that it will be possible for this mission to take place in the near future and that the Government’s next report will show real progress in the application of the Convention in both law and practice.

2. New labour regulation since 2006. The Committee notes the adoption of Act No. 133/AN/05/5thL of 28 January 2006 issuing the Labour Code. It notes that, according to the ITUC, this Act, which challenges fundamental rights relating to freedom of association, was prepared and adopted without the participation of the social partners. The Committee notes that, in a communication of March 2007 provided by the Government in the context of Case No. 2450 pending before the Committee on Freedom of Association, the Government indicates that the social partners were fully consulted at all stages of the process. According to the Government, consultations were held on several occasions with the social partners and, although comments were received from the employers’ association, the trade union confederations (UDT and UGTD) did not provide their comments on the grounds that they did not have the necessary technical expertise.

While noting that certain of the provisions referred to below are also the subject of observations by the ITUC and the UGTD, the Committee wishes to make the following comments on certain provisions of the new Labour Code:

–      sections 41 and 42 of the Labour Code concerning the suspension of employment contracts. Section 41 provides that the employment contract shall be suspended, among other cases, for the duration of any regular, political or trade union office held by the worker which is not compatible with paid employment (subsection 8). Section 42 provides in addition that the period during which the employment contract is suspended shall not be counted for the purpose of determining the worker’s seniority within the undertaking. In this respect, the Committee considers that the holding of trade union office is not incompatible with paid employment, and consequently any worker holding trade union office should be able to remain employed. The Committee therefore considers that sections 41 and 42 of the Labour Code, in providing for a more or less automatic suspension of the employment contract when a worker holds trade union office, are likely to be detrimental to the rights of all workers to establish and to join the organization of their own choosing or to hold trade union office (Article 2 of the Convention). The Committee therefore requests the Government to amend sections 41 and 42 of the Labour Code by providing that the possibility of suspending the employment contract during a period of trade union office where such office is incompatible with the demands of work is a matter for negotiation between the parties concerned, who must establish the relevant modalities, and that in any event such suspension cannot be automatic.

–      section 214 of the Labour Code, under which a person sentenced “by any court” may not hold office as a trade union leader. In this respect, the Committee recalls that a law which generally prohibits access to trade union office because of any conviction is incompatible with the principles of freedom of association (Article 3 of the Convention), when the activity condemned is not prejudicial to the aptitude and integrity required to exercise trade union office. In this case, the Committee considers that section 214 of the Labour Code, in deeming any person who has been convicted to be unsuitable for trade union office, is formulated too broadly and would cover situations in which the nature of the conviction is not inherently such as to rule out the holding of trade union office. The Committee therefore requests the Government to amend section 214 of the Labour Code, in consultation with the social partners, so as to ensure that only court sentences for offences which by their nature are prejudicial to the integrity of the individual are deemed to be incompatible with the holding of trade union office.

–      section 215 of the Labour Code concerning the formalities for the registration and verification of the legality of a trade union. Under the terms of this section, the founders of any occupational trade union are required to deposit their by-laws and the list of persons responsible for their administration and management; within a period of 30 days following their deposit, copies of the by-laws and the list of persons responsible for the administration and management of the union are transmitted by the labour inspector to the Labour Minister and the Attorney-General of the Republic; the documents are accompanied by a report prepared by the labour inspectorate; the Labour Minister then has 15 days to issue a receipt granting legal recognition to the union; the Attorney-General of the Republic then has 30 days to verify the by-laws and review the situation of each of the officials responsible for the administration and management of the union and to notify the Minister of the Interior, Minister of Labour and the union officials concerned of her/his conclusions; any modification to the by-laws and any changes to the composition of the officials responsible for the management or administration of the trade union have to be brought to the knowledge of the same authorities and are subject to verification under the same conditions. The Committee firstly wishes to recall that Article 2 of the Convention guarantees the right of workers and employers to establish organizations “without previous authorization” by the public authorities. The Committee therefore considers that national legislation which requires the deposit of the by-laws of organizations is compatible with this provision if it is a mere formality intended to ensure that the by-laws are available to the public. Nevertheless, problems of compatibility with the Convention may arise if the registration procedure is lengthy or complicated, or if the rules concerning registration are applied in such a way as to defeat its purpose and the registration authorities make excessive use of their discretionary power. The Committee notes that section 215 of the Labour Code, under which the decision of the Minister of Labour requires not only the deposit by the founders of the trade union of the relevant documents, but also a detailed report by the labour inspector, would appear to grant the administration more or less discretionary power in deciding whether or not an organization meets the registration criteria. This situation could amount in practice to denying the right of workers and employers to establish organizations “without previous authorization”, in contravention of Article 2 of the Convention. The Committee therefore requests the Government, in consultation with the representative organizations of employers and workers, to amend section 215 of the Labour Code so as to guarantee the right to establish workers’ and employers’ organizations without previous authorization, to remove the provisions which give de facto discriminatory powers to the administration and to ensure that the registration procedure is merely a formality.

Finally, the Committee refers to its previous comments and also reminds the Government of the need to repeal or amend the following provisions of the legislation:

–      section 5 of the Act on associations, which requires organizations to obtain authorization prior to their establishment as trade unions (Article 2 of the Convention); and

–      section 23 of Decree No. 83-099/PR/FP of 10 September 1983, which confers upon the President of the Republic broad powers to requisition public servants who are indispensable to the life of the nation and the proper operation of essential public services, with a view to restricting the power of requisition to public servants who exercise authority in the name of the State or in essential services in the strict sense of the term (Article 3 of the Convention).

The Committee urges the Government to take the necessary measures, in full consultation with the representative organizations of employers and workers, to revise and amend the legislative provisions, including provisions of the Labour Code, taking into account the above comments. It trusts that the Government will be in a position to indicate the progress achieved in this respect in its next report.

A request on certain other points is being addressed directly to the Government.