Observation (CEACR) - adopted 2022, published 111st ILC session (2023)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Togo (Ratification: 1960)

The Committee notes the adoption of Act No. 2120-012 of 18 June 2021 issuing the Labour Code. In this regard, the Committee notes the joint observations of the Synergy of Workers of Togo (STT) and the National Union of Independent Workers of Togo (UNSIT), received on 31 October 2022. The Committee requests the Government to provide its comments in this respect.

Article 2 of the Convention. Right of workers and employers, without distinction whatsoever, to establish organizations. Trade union rights of minors. The Committee notes with satisfaction that the provisions of section 12 of the Labour Code of 2006 have been repealed, thereby removing any obstacle to the exercise of the trade union rights of minors who have access to the labour market.

Length of the registration procedure. However, the Committee notes that, with reference to section 13 of the new Labour Code, the authorities have 90 days to complete the registration of a union. Recalling that a long registration procedure constitutes a serious obstacle to the establishment of organizations without previous authorization, contrary to Article 2 of the Convention, the Committee requests the Government to take the necessary measures, in consultation with the social partners, to amend section 13 of the Labour Code.

Article 3. Right of organizations to draw up their constitutions and rules, to elect their representatives in full freedom, to organize their administration and to formulate their programmes. Limitations on access to trade union office. The Committee notes that, in accordance with section 14(1) of the new Labour Code, the members with responsibility for the administration and direction of an occupational union of workers shall be active in the enterprise or establishment covered or in the branch or sector concerned. In the view of the Committee, such provisions infringe the right of organizations to draw up their constitutions and to elect their representatives in full freedom by preventing qualified persons (such as full-time officers or pensioners) from being elected (2012 General Survey on the fundamental Conventions, paragraph 102). The Committee requests the Government to make the legislative provisions more flexible, for example, by admitting as candidates persons who have previously been employed in the occupation concerned, or by exempting from the occupational requirement a reasonable proportion of the officers of the organization. The Committee also notes that, in accordance with section 14(3) of the new Labour Code, “persons may not exercise responsibility for the administration or direction of a union who have received a conviction involving loss of civic rights or a conviction to a correctional penalty, with the exception of: (a) convictions for offences involving imprudence, unless they have also taken flight in that context; and (b) convictions for misdemeanours for which the penalty is not subject to proof of bad faith and which only involve liability to a fine, with the exception of misdemeanours qualified as offences by company laws.” The Committee wishes to recall that conviction for an act the nature of which is not such as to call into question the integrity of the person concerned and is not such as to prejudice the performance of trade union duties should not constitute grounds for disqualification from trade union office (2012 General Survey on the fundamental Conventions, paragraph 106). The Committee therefore requests the Government to take the necessary measures, in consultation with the social partners, to amend section 14 of the Labour Code in line with the above comments.

The Committee finally notes that, under the terms of section 15 of the new Labour Code, “the bodies responsible for the administration and direction of the union shall be renewed at least once every five years by the general assembly or the congress”. The Committee wishes to recall in this regard that such provisions which regulate in detail the alternation in the leadership of certain workers’ or employers’ organizations are incompatible with the Convention as they amount to interference by the public authorities in trade union affairs. The Committee requests the Government to take the necessary measures, in consultation with the social partners, to repeal section 15 of the Labour Code, in line with the above comment.

Exercise of the right to strike. In its previous comments, the Committee requested the Government to amend section 275 of the Labour Code, which required the parties, during the course of a strike, to continue negotiations under the authority of a person designated by the Minister of Labour. The Committee notes with satisfaction the Government’s indication that section 275 has been revised in order to permit the parties to a dispute to choose the procedure for the settlement of the dispute. Section 329 of the new Labour Code has accordingly removed the requirement to continue negotiations under the authority of a person designated by the Minister of Labour. It provides that “during the course of the strike, the parties shall be under the obligation to continue negotiations – The parties may, by common agreement, have recourse to a mediator.”

However, the Committee observes that provisions such as those of section 322, under the terms of which the right to strike shall be exercised under conditions of duration and according to procedures that are compatible with the intrinsic requirements of the activity of the enterprise or establishment, and section 331(b), which prohibits any strike action from being pursued at the workplace, at its perimeter or within its immediate vicinity, all constitute limitations on the exercise of the right to strike. The Committee therefore requests the Government to take the necessary measures to amend sections 322 and 331 of the Labour Code.

Essential services. The Committee notes the Government’s indication that the issue of the determination of essential services in the event of a strike has been regulated by section 327 of the new Labour Code, and particularly subsections 3 and 4: “Services shall be considered essential the partial or total interruption of which is likely to seriously prejudice the peace, security, public order or public finances, or endanger the life or health of the whole or part of the population. Services shall also be essential which relate to security, health, education, justice, prison administration, energy, water, State financial institutions, banks and financial establishments, air and maritime transport, and communications, with the exception of private radio and television stations.”

In this regard, while recalling that States may restrict or prohibit the right to strike of public servants exercising authority in the name of the State, for example in the field of justice or fiscal administration, as referred to by the legislator, the Committee observes that services such as those relating to security, education, banks and financial establishments, as well as air and maritime transport, cannot be considered essential within the strict sense of the term, that is their interruption would not endanger the life, personal safety or health of the whole or part of the population. The Committee nevertheless emphasizes that, in order to prevent irreversible or disproportionate harm to the professional interests of the parties to a dispute, the authorities could establish a system of a negotiated minimum service in the event of a strike in these services. It also recalls that such a service should genuinely and exclusively be a minimum service, that is one which is limited to the operations that are strictly necessary to meet the basic needs of the population or the minimum requirements of the services, while maintaining the effectiveness of the pressure brought to bear. Moreover, as this system restricts one of the essential means of pressure available to workers to defend their interests, their organizations should be able to participate in defining such a service, along with employers and the public authorities (2012 General Survey on the fundamental Conventions, paragraphs 131, and 137). The Committee therefore requests the Government to take the necessary measures to amend section 327 of the Labour Code so as to adjust the definition of essential services and provide, where appropriate, for a minimum negotiated service in the event of strikes in such services, in accordance with the principles recalled above.

Application of the Convention in export processing zones. The Committee notes the general information provided by the Government concerning the application of the rights guaranteed by the Convention in export processing zones, as well as the data on the conciliation of individual and collective disputes.

The Committee recalls that the Government may avail itself of technical assistance of the Office in order to ensure the full conformity of the provisions of the new Labour Code with the Convention.