Report in which the committee requests to be kept informed of development - Report No 371, March 2014

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

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

1. 888. The Committee last examined this case at its November 2012 meeting, when it presented an interim report to the Governing Body [see 365th Report, paras 1290–1300, approved by the Governing Body at its 315th Session (November 2012)].
2. 889. The Government provided partial information on the case in a communication dated 28 January 2013.
3. 890. At its October 2013 meeting [see 370th Report, para. 11], the Committee noted that an ILO technical assistance mission visited the country in July 2013 to collect relevant information on the case.
4. 891. 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. Previous examination of the case

1. 892. In its previous examination of the case in November 2012, the Committee made the following recommendations [see 365th Report, para. 1300]:
   • (a) The Committee regrets that the Government has not replied to the complainants’ allegations, even though it has been requested several times, including through two urgent appeals, to present its comments and observations on the case. The Committee once again notes with deep regret that the Government has still not provided any information whatsoever regarding the five consecutive complaints submitted since 2009, which have already been examined in the absence of a response from the Government, and which allege grave violations of freedom of association. Furthermore, the Committee once again notes with deep regret that the Government continues to fail to comply, despite the assurances given to the Chairperson of the Committee at a meeting held in June 2011, and urges the Government to be more cooperative concerning this case.
   • (b) The Committee is particularly concerned by the fact that this case concerns the dismissal of a large number of public servants, including many trade union members and officials, and requests the Government to provide, without delay, its observations on the complainants’ allegations. Should it be found that the officials in question were dismissed due to 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.
   • (c) The Committee requests the Government to accept a high-level mission to discuss all the complaints pending before the Committee concerning the Democratic Republic of the Congo.

B. The Government’s reply

1. 893. In a communication dated 28 January 2013, the Government indicates that appeals were lodged against the administrative act that dismissed the employees of the fiscal authorities, which resulted in the Ministry of the Public Service setting up an ad hoc committee to review these appeals. The committee has completed its work. The Government consequently observes that the procedure is still ongoing and also recalls the possibility of filing judicial appeals against the contested act.

C. The Committee’s conclusions

1. 894. The Committee notes with interest that the Government accepted a technical assistance mission from the International Labour Office to gather information on the various cases that have been examined by the Committee over the years without any real progress being made in following up on its recommendations. The Committee has taken note of the report of the technical assistance mission (set out in the appendix to this report) and welcomes the new spirit of cooperation demonstrated by the Government. It expects the recommendations it makes to be put into effect in the same spirit.
2. 895. The Committee notes that this case concerns the mass dismissal of trade union officials 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), following a strike called in the fourth quarter of 2009. The Committee recalls that, in January 2010, Ordinance No. 10/001 of the President of the Republic and Order No. CAB.MIN/FP/MBB/ TAS/SDB/185/2009 of the Minister of the Public Service were adopted, removing almost 200 managers and employees of the financial and budget ministries from their posts, including 27 trade union delegates, on the grounds that the officials in question had engaged in misconduct constituting serious dereliction of honour, dignity and duty, leading to disciplinary action, or had incurred, on at least one occasion, a term of penal servitude of more than three months. The complainant organizations have indicated, in respect of the dismissed trade union delegates, that the employees concerned had clean administrative records, and some of them had already been subjected to sanctions following disciplinary proceedings. Furthermore, according to the complainant organizations, these trade union delegates were not notified individually of the decision to remove them from their positions, which is contrary to the provisions of the texts governing the status of career officials in the state services and the disciplinary rules applicable to them.
3. 896. The Committee notes that the ILO mission conducted in July 2013 gathered additional information on this case from the complainant organizations. The Committee notes in particular the indication that the Ministry of the Public Service set up ad hoc committees to review the appeals relating to the dismissal of the trade union delegates. However, the results of these reviews have apparently not yet been made public. The Committee notes in this regard that the Government confirmed in its communication of 28 January 2013 that the Ministry of the Public Service had set up an ad hoc committee to review the administrative appeals lodged against the decision to remove the employees from office and that the committee had completed its work. Finally, the Committee notes that the mission asked the Ministry of the Public Service to send any conclusions reached by the ad hoc committee in respect of the dismissed trade union delegates. Noting that the Office has still not received the information requested, the Committee urges the Government to provide information on the conclusions of the ad hoc committees set up to review the appeals lodged in respect of the dismissal of the trade union delegates and on any follow up thereto.
4. 897. Moreover, the Committee notes the statement that, in parallel to the administrative procedure, a group of officials affected by the decisions to remove the employees from office lodged a judicial complaint against the ordinances, which in April 2013 led the Ministry of the Public Service to request an advisory opinion from the Supreme Court of Justice on certain points concerning the presidential ordinances. The Committee notes that on 11 June 2013 the Supreme Court issued an opinion on the questions raised. In this opinion, the Supreme Court of Justice, while indicating that the President of the Republic is competent to decide on the compulsory retirement and the removal from office of officials in positions of responsibility in the DGDA, recalls that the Prime Minister is the only person with the authority to remove officials in the implementation and collaboration category from office, on the proposal of the Director General of Customs and Excise and after requesting the views of the Ministers of Finance and the Public Service, respectively, within their remit (article 76 of Decree No. 011/08 of 2 February 2011 concerning the rules relating to DGDA personnel administration).
5. 898. The Committee also notes that the complainant organizations have provided the mission with copies of several communications from the Prime Minister’s Office dating back to March 2010, recalling the exclusive authority of the Prime Minister in respect of removing officials in the implementation and collaboration category in all the financial authorities (DGI, DGRAD and DGDA) from office and urging the Minister of the Public Service to draw the necessary conclusions (communications dated 4 March, 18 June and 14 October 2010).
6. 899. The Committee notes that, according to the complainant organizations, the normal consequence of communications from the Prime Minister’s Office addressed to the Minister of the Public Service and of an advisory opinion from the Supreme Court of Justice would be to declare the decision of 6 January 2010 to remove the employees from office null and void. However, the Government has not yet taken any steps in this direction. In this respect, the Committee notes that the Minister of the Public Service confirmed to the mission that the conclusions to be drawn from the advisory opinion of the Supreme Court of Justice were still under examination.
7. 900. The Committee notes with deep concern the information provided to the mission relating to the adverse consequences of the dismissals on the everyday life of the trade union delegates concerned and their families since January 2010, namely the death of six trade unionists and the family conflicts caused by this longstanding situation. The Committee consequently firmly expects the Government to undertake, without delay, concrete measures in this case, taking due account of the various elements recalled above. In the event of the reinstatement of the trade union delegates, the Committee expects that the delegates, or their dependants, will receive at least the emoluments due since their removal from office, based on the understanding that the indemnities and sanctions imposed should be sufficiently dissuasive to ensure that such situations do not recur. The Committee urges the Government to indicate without delay the measures being taken in this regard.

The Committee’s recommendations

1. 901. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee urges the Government to provide information on the conclusions of the ad hoc committees set up to review the appeals lodged in respect of the dismissal of the trade union delegates and on any follow-up thereto.
   • (b) Noting with deep concern the information provided to the mission relating to the adverse consequences of the dismissals on the everyday life of the trade union delegates concerned and their families, the Committee firmly expects the Government to undertake, without delay, concrete measures in this case, taking due account of the various elements recalled in its conclusions. In the event of the reinstatement of the trade union delegates, the Committee expects that the delegates, or their dependants, will receive at least the emoluments due since their removal from office, based on the understanding that the indemnities and sanctions imposed should be sufficiently dissuasive to ensure that such situations do not recur. The Committee urges the Government to indicate without delay the measures being taken in this regard.
2. The Inter-Union Association recalled that the Ministry of the Public Service set up successive ad hoc committees to examine the appeals lodged in relation to the dismissal of the trade union delegates. However, the results of these reviews are not known. In parallel, a group of officials lodged a judicial appeal against the ordinances, which, in March 2013, led the Minister of the Public Service to request an advisory opinion from the Supreme Court of Justice on certain points relating to the presidential ordinances. On 11 June 2013, the Supreme Court issued an opinion on the questions raised and, at the same time, recalled that the Prime Minister was the only person with the authority to remove career implementation and collaboration officials in the state services from office, and not the Minister of the Public Service. The Inter-Union Association considers that the immediate consequence of the Court opinion should be to declare the Order of 6 January 2010, issued by the Minister of the Public Service, null and void. However, the Inter-Union Association observes with regret that no steps have yet been taken in this direction by the Minister of the Public Service in respect of the Court opinion.