Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 373, Octobre 2014

Cas no 3041 (Cameroun) - Date de la plainte: 24-MAI -13 - Clos

Allegations: The complainant organization alleges interference by the authorities and the employer in an internal conflict concerning its leadership

1. 79. The complaint is contained in communications dated 24 May and 19 October 2013 from the National Union of Electric Energy (SNEE).
2. 80. Since there has been no reply from the Government, the Committee has been obliged to postpone its examination of the case on three occasions. At its May–June 2014 meeting [see 372nd Report, para. 6], 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, it could present a report on the substance of the case at its next meeting, even if the requested information or observations had not been received in time. To date, the Government has not sent any information.
3. 81. Cameroon has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 82. In a communication dated 24 May 2013, the SNEE states that it was registered in January 2006 and that it represents 1,000 workers in the electricity sector, having as their main employer the enterprise AES SONEL, a subsidiary of the multinational AES Corporation. The complainant organization also states that it is the most representative organization in the sector, and in the enterprise in question, having achieved the following results in the elections of staff delegates: 61 per cent in 2007, 82 per cent in 2009 and 55 per cent in 2011.
2. 83. The complainant organization alleges that its independence, its prevalence and its protest actions, started to disturb the enterprise, and that the labour administration authority did not adopt the neutral position that it should have in the circumstances.
3. 84. The complainant organization indicates that the difficulties began when the labour administration authority convened the trade union organizations to the sixth session of the ad hoc tripartite committee set up to examine the criteria for awarding productivity bonuses to AES SONEL on 21 February 2012. The notice was sent to the Chairperson of the SNEE, Mr Julien Fouman. However, the administration authority also, for no valid reason, invited two members of the SNEE to the meeting, Mr Paul Monji, a simple member, and Mr Njoumé Oyacka, a staff delegate elected in 2011, but without a defined function in the organization, although these two persons did not appear on the list of SNEE negotiators originally sent to the authorities. During the meeting, not only did the Chairperson of the SNEE contest the presence of the two members of his trade union, but the other trade unions present also expressed their discontent with the uneven representation thus established in favour of the SNEE. As a result, the meeting did not go ahead.
4. 85. The SNEE indicates that, instead of suggesting to certain individuals, including Mr Monji, claiming to have been elected as the new representatives of the organization in January 2012, that they should take legal action in pursuit of their rights, the labour administration authority recognized them as such, thus creating confusion regarding the SNEE leadership. Subsequently, the labour administration authority proposed mediation, which the individuals claiming to be the new SNEE officers refused. This failure led the administration authority to threaten the SNEE, in a letter dated 23 May 2012 (attached to the complaint), that it would suspend its collaboration with the organization and pursue the work of the ad hoc committee set up to examine the criteria for awarding productivity bonuses to AES SONEL with the other trade unions at the enterprise.
5. 86. Faced with this threat, the Chairperson of the SNEE, Mr Fouman, proposed convening a unitary extraordinary congress on 31 July 2012, with the election of the national executive board and the appointment of five representatives of the SNEE for social dialogue forums as the only items on its agenda. This proposal received the support of the Ministry of Labour and Social Security, which sent the Chairperson of the SNEE a letter of encouragement dated 11 July (attached to the complaint).
6. 87. The opposing faction tried unsuccessfully to have the congress blocked by the courts, but it went ahead on 4 August 2012, in the presence of two scrutineers from the National Committee for Human Rights and Freedoms, a public body serving as a human rights observatory. Following the congress, the minutes and the related bailiff’s report were sent to the Ministry of Labour and Social Security and to the registrar of trade unions. However, according to the complainant organization, there has been no response from these authorities.
7. 88. Three weeks after the extraordinary congress, the dissident faction initiated legal proceedings (interim relief judge and trial judge) to annul the resolutions adopted. The complainant organization submits copies of the exchange of correspondence between the enterprise, asking the labour administration authority how to proceed (letter dated 27 September 2012 attached to the complaint), and the Ministry of Labour, recommending that it wait for the ruling on the appeal lodged by the dissident faction and that in the meantime it adopt a strict neutrality vis-à-vis the two factions (letter dated 23 October 2012 attached to the complaint). On 1 November 2012, the interim judge indicated that he lacked jurisdiction in the case and ordered the dissident faction to pay the costs. In the meantime, the annulment proceedings lodged with the High Court are still pending and the hearings are repeatedly being postponed. At the time the complaint was presented to the Committee, the matter had once again been postponed (excerpt of hearing attached).
8. 89. The complainant organization has tried to contact the Ministry of Labour and Social Security on a number of occasions regarding the legal decision to refuse the suspension of the resolutions adopted by the congress in August 2012, and asking that the AES SONEL ad hoc committee resume its work. It was only in April 2013 that the administration authority replied, indicating that it was awaiting legal decisions on the matter; thus the decision of the interim judge has not been taken into account.
9. 90. Furthermore, the complainant organization indicates that, in the context of the conflict opposing the two factions, Mr Monji, declaring himself to be the elected national Chairperson of the SNEE since January 2012, brought legal proceedings against Mr Fouman in June 2012 for wrongful withholding of the property of another, misappropriation of office, attempted theft and breach of trust. However, on 18 April 2013, the Court of First Instance of Douala-Ndokoti issued a ruling acquitting Mr Fouman, judging him not guilty of the facts of the case and ordering Mr Monji to pay the costs.
10. 91. The SNEE questions the conduct of the labour administration authority in respect of the internal conflict in which it has been embroiled. The SNEE, recalling that an extraordinary congress, supported by the administration authority, was held in August 2012 to settle the conflict, questions the Government’s neutrality in view of its refusal to recognize the resolutions issued by the congress, while the legal system refuses to suspend them, and its blocking of social dialogue within an enterprise that penalizes trade union action. The SNEE thus denounces a situation of confusion intentionally created by the Government to weaken action by the majority trade union in the enterprise and undermine it in the next elections.
11. 92. In a communication dated 19 October 2013, the complainant organization indicates that it has brought legal proceedings against the AES Corporation, which owns 56 per cent of AES SONEL, before the Federal Court of Virginia (United States), for breach of social rights. The enterprise is accused of not having paid back 5 per cent of share capital to workers, although it was contractually committed to do so when it was privatized in 2001. It is also accused of abusively withholding productivity bonuses (an element in its staff’s wages) since March 2005, to a value of 25 billion CFA francs.
12. 93. The complainant organization denounces the fact that in its August 2013 defence before the United States courts, the AES Corporation focuses on Mr Fouman’s lack of legal capacity to act on behalf of the SNEE, on the grounds that he had been replaced as Chairperson by Mr Monji, who is therefore explicitly recognized by the enterprise as the Chairperson of the SNEE. Thus, in the documents submitted to the United States courts by the enterprise, Mr Monji appears in the capacity of Chairperson of the SNEE. According to the complainant organization, by taking sides, the employer is not adhering to the position of neutrality to be adopted vis-à-vis the internal conflict within the SNEE advised by the Government in its letter of October 2012. The complainant organization notes that the dual leadership situation in the trade union has furthered the enterprise’s cause before the courts and questions the link between the actions taken by Mr Monji to take over the leadership of the trade union and the defence of the enterprise’s interests.
13. 94. In this connection, the complainant recalls a case previously examined by the Committee on Freedom of Association involving the same enterprise and relating to interference in the affairs of a newly constituted trade union, harassment of its officers and favouritism towards a rival trade union (Case No. 2439).

B. The Committee’s conclusions

1. 95. The Committee regrets that, despite the time that has elapsed since the presentation of the complaint, the Government has not replied to the complainant’s allegations, even though it has been requested several times to do so, including through an urgent appeal. Noting, furthermore, that this is the fourth consecutive case on which the Government has failed to provide any information in response to the allegations presented, the Committee urges the Government to be more cooperative in the future.
2. 96. 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. 97. 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. 98. The Committee observes that the present case relates to allegations of interference by the authorities and the employer in an internal conflict within an organization, opposing two factions.
5. 99. The Committee recalls, firstly, that conflicts within a trade union should be resolved by its members, and that a matter involving no dispute between the Government and the trade unions, but which involves a conflict within the trade union movement itself, is the sole responsibility of the parties themselves. In the case of internal dissension within one and the same trade union federation, by virtue of Article 3 of Convention No. 87, the only obligation of the Government is to refrain from any interference which would restrict the right of the workers’ and employers’ organizations to draw up their constitutions and rules, to elect their representatives in full freedom, to organize their administration and activities and to formulate their programmes, and to refrain from any interference which would impede the lawful exercise of that right [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, paras 1113 and 1117].
6. 100. The Committee notes that the case concerns the SNEE, an organization that says it represents 1,000 workers in the electricity sector and that it is the most representative organization in the enterprise AES SONEL (hereinafter the enterprise).
7. 101. According to the information provided by the complainant organization, the Committee notes that a dissident faction of the SNEE organized an extraordinary congress in January 2012 that dissolved the existing board under the chairmanship of Mr Fouman and installed new officers under the chairmanship of Mr Monji. These events resulted in the SNEE having dual leadership.
8. 102. In view of this situation, the labour administration authority decided to convene the two factions to an ad hoc tripartite committee set up to examine the criteria for awarding productivity bonuses in the enterprise on 21 February 2012. However, the meeting could not go ahead due to the dual leadership of the SNEE, contested by all parties. The Committee notes that, according to the complainant organization, the labour administration authority contributed to the confusion by endorsing the situation. According to the documents submitted with the complaint, the Committee notes that, following the Government’s threat to suspend its collaboration with the trade union organization, the Chairperson of the SNEE, Mr Fouman, proposed holding a unitary extraordinary congress. This proposal received the encouragement of the Ministry of Labour and Social Security. The congress was held on 4 August 2012; however, the dissident faction initiated legal proceedings to invalidate it.
9. 103. The Committee notes that, in the meantime, the enterprise asked the labour administration authority how to proceed in these circumstances and that in its reply the Ministry of Labour suggested that it wait for the legal ruling on the appeal lodged by the dissident faction and that until then it adopt a strict neutrality vis-à-vis the two factions.
10. 104. The Committee notes that, on 1 November 2012, the interim judge indicated that he lacked jurisdiction in the case. According to the complainant organization, the decision on the merits of the case is still pending as the hearings scheduled before the High Court in question are repeatedly being postponed. Furthermore, the Committee notes that, in June 2012, Mr Monji brought legal proceedings against Mr Fouman for wrongful withholding of the property of another, misappropriation of office, attempted theft and breach of trust. In April 2013, the Court of First Instance of Douala-Ndokoti issued a ruling acquitting Mr Fouman, judging him not guilty.
11. 105. The Committee observes that, following the request by the complainant organization for the enterprise’s ad hoc committee to resume its work, the Ministry of Labour and Social Security indicated that it was still awaiting legal decisions on the matter. The Committee notes that, according to the complainant organization, the situation of confusion was maintained to weaken action by the trade union in the enterprise and to undermine it in the next elections.
12. 106. The Committee observes that, in Decision No. 571 dated 31 December 2013, the Court of First Instance of Douala-Ndokoti ruled null and void the extraordinary congress of the SNEE held on 4 August 2012 and the resolutions adopted during its work. The Committee recalls that it has pointed out in previously examined cases that, in the event of internal conflicts, judicial intervention would permit a clarification of the situation from the legal point of view for the purpose of settling questions concerning the management and representation of the trade union federation concerned [see Digest, op. cit., para. 1116]. Noting the legal decision handed down, the Committee urges the Government to indicate without delay the consequences of this decision on the SNEE leadership. The Committee also urges the Government and the complainant organization to indicate whether an appeal has been lodged against this judicial decision and, if so, to inform it of the outcome of the relevant judicial proceedings.
13. 107. The Committee notes that the SNEE, represented by Mr Fouman, brought legal proceedings against the AES Corporation, which owns 56 per cent of the enterprise, before the Federal Court of Virginia (United States), for breach of social rights. The Committee notes that, according to the complainant organization, its defence before the United States courts in August 2013, focuses on Mr Fouman’s lack of legal capacity to act on behalf of the SNEE, on the grounds that he had been replaced as Chairperson by Mr Monji, who is therefore explicitly recognized by the enterprise as the Chairperson of the SNEE. The Committee indeed notes that, in the documents submitted to the United States courts by the enterprise, Mr Monji appears in the capacity of Chairperson of the SNEE. Noting that these elements occurred prior to the decision dated 31 December 2013 being handed down by the Court of First Instance of Douala-Ndokoti, the Committee observes that they can be interpreted as a lack of neutrality by the enterprise. Consequently, the Committee urges the Government to ensure that the principles of freedom of association are fully respected in the enterprise with regard to the neutrality to be observed when a conflict occurs within a trade union, given that any premature endorsement by an employer constitutes serious interference.

The Committee’s recommendations

1. 108. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) Noting the judicial decision of 31 December 2013 handed down by the Court of First Instance of Douala-Ndokoti, the Committee urges the Government to indicate without delay the consequences of this decision on the leadership of the National Union of Electric Energy (SNEE). The Committee also urges the Government and the complainant organization to indicate whether an appeal has been lodged against this judicial decision and, if so, to inform it of the outcome of the relevant judicial proceedings.
   • (b) The Committee urges the Government to ensure that the principles of freedom of association are fully respected in the AES SONEL enterprise with regard to the neutrality to be observed when a conflict occurs within a trade union, given that any premature endorsement by an employer constitutes serious interference.