Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

Abolition of Forced Labour Convention, 1957 (No. 105) - Senegal (Ratification: 1961)

Article 1(c) of the Convention. Imposition of sentences of imprisonment involving an obligation to work for breaches of labour discipline. In its previous comments, the Committee noted with regret that the Government had not taken the opportunity afforded by the adoption of the new Merchant Shipping Code (Act No. 2002-22 of 16 August 2002) to amend the provisions which it had been commenting on for many years. Under sections 624, 643 and 645 of the new Merchant Shipping Code, unapproved absence from the vessel, verbal insults, gestures or threats towards a superior and a formal refusal to obey a service order are still punishable by imprisonment, involving compulsory prison labour, in accordance with section 692 of the Code of Penal Procedure and section 32 of Decree No. 2001-362 of 4 May 2001 concerning the implementation and organization of penal sanctions. In view of the fact that the scope of these provisions of the Merchant Shipping Code is not confined to cases in which the breach of discipline would endanger the ship or the persons on board, the Committee considered these provisions to be contrary to the Convention, which prohibits recourse to forced labour, including in the form of compulsory prison labour, as a means of labour discipline.

In its last but one report, the Government recognized that these provisions were not in conformity with the Convention. It indicated that, in practice, no prison sentence involving compulsory labour was applied and that the merchant navy had itself considered as excessive the penalties provided for and the violations penalized. For this reason, according to the Government, penal sanctions were always discarded in cases of breaches of discipline. The merchant navy had received instructions to take steps to find a definitive solution to this situation. In view of this information, the Committee considered that the Government should have no difficulties in making the necessary changes to the Merchant Shipping Code so that the legislation reflects the practice already established and is in conformity with the Convention.

The Committee notes that, in its latest report, the Government indicates that the measures announced are indeed being considered with a view to making the necessary changes to the Merchant Shipping Code. In view of the above, and considering that it has been commenting on this point for more than 40 years, the Committee trusts that the Government will be able to provide information, in its next report, on the steps taken to amend sections 624, 643 and 645 of the new Merchant Shipping Code and therefore ensure conformity with the Convention in law and practice.

Article 1(d). Imposition of prison sentences involving an obligation to work as a punishment for participation in strikes. In its previous comments, the Committee drew the Government’s attention to section L.276 of the Labour Code which allows the administrative authority to requisition workers from private enterprises and public services and establishments who are engaged in jobs that are essential for the security of persons and property, the maintenance of public order, the continuity of public services and the satisfaction of the essential needs of the nation. Any worker who does not comply with the requisition order is liable to a fine and/or imprisonment ranging from three months to one year (section L.279(m)). The Committee requested the Government to supply a copy of the decree implementing section L.276 containing the list of jobs concerned as well as information on the cases in which the competent administrative authority had had recourse to section L.276. In reply, the Government indicated that the requisition of workers is certainly justified in essential services, that it is a measure of public security and that it is on no account designed to constitute a penalty. The Government pointed out that the decree implementing section L.276 was in the process of being adopted and that, pending this, it was Decree No. 72‑017 of 11 March 1972 establishing the list of posts, jobs and functions of which the occupants may be subject to requisition which continued to apply. The Committee noted this information, as well as the comments of the National Confederation of Workers of Senegal (CNTS), sent in November 2006 by the Government, that the requisition of certain workers in certain situations constituted an abuse of authority intended to break strikes initiated by workers. According to the CNTS, certain employers in the private sector used this process to force workers to remain in their posts when there was no need to do so.

The Committee notes that, in its latest report, the Government merely indicates that the requisition only concerns jobs that are essential for the security of persons and property, the maintenance of public order, the continuity of public services or the satisfaction of the essential needs of the nation. The Committee refers to the comments that it has been making on this matter since 1998 in relation to the application of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). In these comments, the Committee has recalled on many occasions that recourse to this type of measure should be limited exclusively to the maintenance of essential services in the strict sense of the term (those the interruption of which would endanger the life, safety or health of the whole or part of the population), to public servants exercising authority in the name of the State or to acute national crises.

Noting that, firstly, workers who do not comply with a requisition order are liable to imprisonment involving the obligation to work (section L.279(m) of the Labour Code) and, secondly, powers of requisitioning may be exercised with regard to workers whose posts, jobs or functions are not essential services in the strict sense of the term, the Committee expresses the firm hope that the Government will take the necessary steps to ensure that the Decree implementing section L.276 of the Labour Code, which is in the process of being adopted, is in conformity with the Convention. To that end, the list of posts, jobs and functions whose occupants may be subject to requisitioning should be limited to the posts, jobs and functions which are strictly necessary to ensure the operation of essential services in the strict sense of the term, to public servants exercising authority in the name of the State and to acute national crises, and workers who do not comply with a requisitioning order should not be liable to imprisonment involving the obligation to work.

In its previous comments, the Committee drew the Government’s attention to the need to amend the provisions of the last paragraph of section L.276 of the Labour Code, which states that any exercise of the right to strike accompanied by occupation of the workplace or its immediate surroundings is liable to the penalties provided for by sections L.275 and L.279, namely: loss of entitlement to the payments and benefits provided for in the event of termination of the contract (section L.275); and imprisonment ranging from three months to one year and/or a fine (section L.279). The Government indicated that the restrictions concerning the occupation of workplaces in the event of a strike were actually limited to cases in which strikes cease to be non-violent and that the penalties provided for had never been applied, such situations having always been settled by means of negotiation. The Committee notes that, in its latest report, the Government indicates that it will take all the necessary steps to ensure that the legislation is in conformity with the Convention.

The Committee hopes that in its next report, the Government will be able to report on the steps taken to amend sections L.276, last paragraph, and L.279 of the Labour Code by removing the provisions imposing prison sentences involving the obligation to work on striking workers who occupy the workplace or its immediate surroundings and by ensuring that this right is guaranteed as long as the strike remains non-violent, therefore ensuring conformity with the Convention in law and practice.