Interim Report - Report No 362, November 2011

Case No 2797 (Democratic Republic of the Congo) - Complaint date: 22-APR-10 - Follow-up

Allegations: The complainant organizations allege the mass dismissal of trade union officials, managers and employees of the financial authorities following a strike

1. 1438. The complaint is contained in a communication dated 22 April 2010 from the following trade union organizations: the Trade Union Confederation of Congo (CSC), the Workers’ National Union of Congo (UNTC), the United Organization of Workers of Congo (OTUC), the Democratic Confederation of Workers (CDT), SOLIDARITÉ, the Conscience of Workers and Peasants (CTP), the Solidarity of Workers and Peasants (SOPA), ACTIONS, the Coalition of Workers of Congo (ATC), the New Union Dynamique (NDS) replaced by the General Federation of Workers of Kongo (FGTK) and the Union Power of Congo (FOSYCO).
2. 1439. Since there has been no reply from the Government, the Committee has been obliged to postpone its examination of the case twice. At its May–June 2011 meeting [see the 360th Report, para. 5], the Committee made an urgent appeal to the Government indicating that, in accordance with the procedural rules set out in paragraph 17 of its 127th Report, approved by the Governing Body (1972), it could present a report on the substance of the case at its next meeting, even if the requested observations or information had not been received in time. To date, the Government has not sent any information.
3. 1440. The Democratic Republic of the Congo has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and the Workers’ Representatives Convention, 1971 (No. 135).

A. The complainant organization’s allegations

1. 1441. In a communication dated 22 April 2010, the complainant organizations (CSC, UNTC, OTUC, CDT, SOLIDARITÉ, CTP, SOPA, ACTIONS, ATC, NDS, FGTK and FOSYCO) allege the mass dismissal of trade union officials and of managers and employees of the fiscal authorities following a strike.
2. 1442. The complainant organizations state that on 7 October 2009, trade union delegates demanded payment from the Government, for the first three quarters of 2009, of a performance-related bonus owed to employees of the fiscal authorities, namely, the General Directorate for Administrative, Judicial, State and Contributory Revenues (DGRAD), the General Directorate for Taxes (DGI) and the General Directorate for Customs and Excise Duties (DGDA). According to the complainant organizations, faced with the Government’s refusal to pay the bonus, a strike was called. Following the strike the Government agreed to pay the bonus and work was resumed.
3. 1443. The complainant organizations allege that in January 2010, Ordinance No. 10/001 of the President of the Republic and Order No. CAB.MI/FP/MBB/TAS/SDB/185/2009 of the Minister of the Public Service were issued with the aim of revoking the grades and posts of many of the employees concerned, including around 30 union delegates.
4. 1444. The complainant organizations state that the individuals concerned have been accused of serious dereliction of honour, dignity and duty. They consider that the decision to revoke their grades was in fact motivated by their participation in a legal strike, and explain that on the date of the communication no individual notifications had been sent to the officials in question. Furthermore, according to the complainant organizations, the employees concerned either had clean administrative records or had already been subjected to sanctions following disciplinary proceedings.
5. 1445. The complainant organizations also report that approaches were made to the public authorities demanding the repeal of Presidential Ordinance No. 10/001 and Ministerial Order No. CAB.MI/FP/MBB/TAS/SDB/185/2009. In the absence of any reply from the authorities, the complainant organizations referred the matter to the Committee in order to bring about the reinstatement of the persons concerned.

B. The Committee’s conclusions

1. 1446. The Committee regrets that, despite the time that has elapsed since the presentation of the complaint, the Government has not replied to the complainant organizations’ allegations, even though it has been requested several times including through an urgent appeal, to present its comments and observations on this case. Noting furthermore that this case is the fifth successive case for which the Government has failed to provide information in reply to the allegations presented, the Committee firmly urges the Government to be more cooperative concerning this case and invites it to avail itself of the technical assistance of the Office.
2. 1447. Hence, in accordance with the applicable procedural rules [see 127th Report, para. 17, approved by the Governing Body at its 184th Session (1972)], the Committee is obliged to present a report on the substance of the case without being able to take account of the information which it had hoped to receive from the Government.
3. 1448. The Committee reminds the Government that the purpose of the whole procedure established by the International Labour Organization for the examination of allegations of violations of freedom of association is to ensure respect for trade union rights in law and in practice. The Committee is confident that, while this procedure protects governments against unreasonable accusations, they must recognize the importance of formulating, for objective examination, detailed replies concerning allegations brought against them [see First Report of the Committee, para. 31].
4. 1449. The Committee notes that during the 100th Session of the International Labour Conference (June 2011), the Chairperson of the Committee met with the Government delegation of the Democratic Republic of the Congo to discuss the Government’s defaults and to seek solutions.
5. 1450. The Committee notes that the present case concerns the mass dismissal of trade union officials and of managers and employees of the fiscal authorities, following a strike.
6. 1451. The Committee observes that on 7 October 2009, union delegates demanded payment from the Government, for the first three quarters of 2009, of a performance-related bonus owed to employees of the fiscal authorities, namely, the DGRAD, the DGI and the DGDA. It also notes that, in the light of the Government’s refusal to pay the bonus, a strike was called, and that following the strike, the Government agreed to pay the bonus and work was resumed.
7. 1452. In January 2010, Ordinance No. 10/001 of the President of the Republic and Order No. CAB.MI/FP/MBB/TAS/SDB/185/2009 were adopted, removing almost 200 managers and employees of the financial and budget ministries from their posts. The Committee notes that the complaints made against the officials in question, as specified in the Ordinance and the Order (copies are provided by the complainant organizations), concern misconduct constituting serious dereliction of honour, dignity and duty, leading to disciplinary action, or offences such as to have incurred, on at least one occasion, a term of penal servitude of more than three months.
8. 1453. The Committee notes that, according to the complainant organizations, the officials were dismissed for their participation in a legal strike. It also notes the statements of the complainant organizations to the effect that the employees in question had clean administrative records or had already been subjected to sanctions following the initiation of disciplinary proceedings. Furthermore, the officials were not notified individually of the decision to revoke their positions.
9. 1454. The Committee recalls the principle that the dismissal of workers because of a strike constitutes serious discrimination in employment on grounds of legitimate trade union activities and is contrary to Convention No. 98 [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 661]. Furthermore, when trade unionists or union leaders are dismissed for having exercised the right to strike, the Committee can only conclude that they have been punished for their trade union activities and have been discriminated against [see Digest, op. cit., para. 662]. Moreover, imposing sanctions on unions for leading a legitimate strike is a grave violation of the principles of freedom of association [see Digest, op. cit., para. 658].
10. 1455. The Committee is particularly concerned by the fact that this case concerns the dismissal of a large number of officials, including many trade union members and officials, and requests the Government to provide without delay its observations on the allegations made by the complainant organizations. If it is confirmed that the officials in question were dismissed because of their involvement in a legitimate and peaceful strike, the Committee urges the Government to take any steps that may be necessary to ensure their reinstatement with full payment of back wages. If that is not the case, the Committee requests the Government to provide any information on the reasons for the decision to remove the officials from office as set out in Presidential Ordinance No. 10/001 and Ministerial Order No. CAB.MI/FP/MBB/TAS/SDB/185/2009.
11. 1456. In addition the Committee notes that according to a letter of 4 March 2010 from the Prime Minister to the Minister of the Public Service (provided by the complainant organizations as an attachment to the complaint), an appeal against Presidential Ordinance No. 10/001 was lodged with a review commission. The Committee requests the Government to keep it informed of any conclusions reached by this commission and of any follow-up thereto.

The Committee's recommendations

1. 1457. In the light of its foregoing interim conclusions, the Committee requests the Governing Body to approve the following recommendations:
   • (a) The Committee regrets that the Government has not replied to the complainant organizations’ allegations, even though it has been requested several times, including through an urgent appeal, to present its comments and observations on the case. Noting furthermore that this case is the fifth successive case for which the Government has failed to provide information in reply to the allegations presented, the Committee firmly urges the Government to be more cooperative concerning this case and invites it to avail itself of the technical assistance of the Office.
   • (b) The Committee is particularly concerned by the fact that this case concerns the dismissal of a large number of officials, including many trade union members and officials, and requests the Government to provide without delay its observations on the allegations of the complainant organizations. If it is confirmed that the officials in question were dismissed because of their involvement in a legitimate and peaceful strike, the Committee urges the Government to take any steps that may be necessary to ensure their reinstatement with full payment of back wages. If that is not the case, the Committee requests the Government to provide any information on the reasons for the decision to remove the employees from office, as per Presidential Ordinance No. 10/001 and Ministerial Order No. CAB.MI/FP/MBB/TAS/SDB/185/2009. It also requests the Government to keep it informed of any conclusions reached by the review commission which has examined the appeal against the Ordinance and of any follow-up thereto.