Direct Request (CEACR) - adopted 2010, published 100th ILC session (2011)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Democratic Republic of the Congo (Ratification: 2001)

The Committee notes with regret that the Government’s report does not reply to the points raised in its previous direct request, which read as follows:

Article 3 of the Convention. The Committee had noted that Order No. 12/CVAB.MIN/TPS/113/2005 of 26 October 2005 establishes the rights and obligations of parties during the suspension of the labour contract and in the event of a strike, of which a copy has been provided by the Government. The Committee had noted that, under section 11 of this Order, workers on strike are forbidden to enter and remain in work premises affected by the strike. In this respect, the Committee wishes to draw the Government’s attention to the fact that restrictions on the occupation of premises by strikers should be limited to cases in which the strike ceases to be peaceful and when the freedom to work of non-strikers, as well as the right of the management of the enterprise to enter the premises, are infringed. The Committee requests the Government to take the necessary measures to amend section 11 of Order No. 12/CVAB.MIN/TPS/113/2005 of 26 October 2005, in accordance with the abovementioned principle.

In its previous comments, the Committee had requested the Government to amend section 326 of the Labour Code, which provides that a fine and/or a sentence of penal servitude of a maximum of six months might be imposed on an individual who is in breach of the conditions established for the exercise of the right to strike. The Committee had recalled that: (1) penal sanctions should be possible only where the strike prohibitions are in conformity with the principles of freedom of association; (2) all penalties in respect of actions linked to illegitimate strikes should be proportionate to the offence or fault committed; and (3) the authorities should not have recourse to measures of imprisonment of workers for the mere fact that they have organized or participated in a peaceful strike. The Committee takes due note of the Government’s proposed amendment to section 326 of the Labour Code, by adding the principles that it listed above. Nonetheless, the Committee recalls that the application of disproportional penal sanctions does not favour the development of harmonious and stable industrial relations and that, if measures of imprisonment are to be imposed at all, they should be justified by the seriousness of the offences committed (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 177). The Committee suggests including an additional provision stipulating that penalties against strikers must be proportionate to the offence committed and that no prison sentence shall be imposed unless criminal or violent acts have been committed. The Government is requested to indicate any developments in the amendment of section 326 of the Labour Code on the lines suggested above.

Furthermore, the Committee recalled its previous comments concerning recourse to the labour tribunal in the event of a strike. The Committee had pointed out that: (1) section 304 of the Labour Code and section 27 of Act No. 016/2002 concerning the establishment, organization and functioning of labour tribunals provides that recourse is possible to the labour tribunal once the conciliation and mediation procedures have been exhausted; (2) under section 28(1) of Act No. 016/2002, once the strike notice period has expired, one of the parties might apply to the tribunal to rule on the collective labour dispute between them; (3) section 28(3) of the same Act provides that such referral to the tribunal should have the effect of suspending the strike or lockout. The Committee had noted the Government’s statement that labour tribunals have not yet been set up and that referral to the tribunal might only take place once the conciliation and mediation procedures instigated by one of the parties or the labour inspection services have been exhausted. The Committee recalls that arbitration to resolve a labour dispute must be voluntary on the part of both parties and not prevent recourse to strike action, with the exception of specific circumstances, such as the provision of essential services in the strict sense of the term. The Committee points out that arbitration which can be imposed at the request of one of the parties and the effect of which is binding is equivalent to compulsory arbitration, and that this is not in conformity with the principle of freedom of association (see General Survey, op. cit., paragraphs 256 and 257). The Committee requests the Government to take the necessary measures to amend section 28 of Act No. 016/2002 to ensure that referral to the labour tribunal, once the conciliation and mediation procedures have been exhausted, can only take place after a voluntary decision by both parties to the dispute.

In its previous comments, the Committee had noted the bill to amend a number of provisions of the Labour Code, including section 241, which sets forth the conditions to be fulfilled by a person to be entrusted with the administration and management of a trade union organization. It had nevertheless recalled that the proposed amendments had not taken into account the need to allow foreign workers to hold trade union office, at least after a reasonable period of residence in the host country. It had indicated that the requirement of a 20-year residence period as a condition of eligibility, stipulated under section 241, was excessive and requested that this section be amended. The Committee had noted the Government’s statement that it is considering replacing the 20-year residence period by the fact of holding of a permanent residence permit. The Committee requests the Government to provide information on the conditions required to obtain a permanent residence permit. It also asks the Government to indicate any steps it has taken to amend the condition of eligibility of foreign workers to hold trade union office.

Article 4. The Committee had noted that, according to the Government, due note has been taken of the need to amend section 251 of the Labour Code to ensure that the dissolution of trade union organizations should be resolved by their statutes and rules. The Committee requests the Government to indicate any steps taken with a view to amending section 251 of the Labour Code to that effect.

The Committee urges the Government to take the necessary measures without delay to ensure that its legislation is in conformity with the Convention and reminds it that it may seek technical assistance from the Office on the above matters.