Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

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

The Committee notes the Government’s report and its reply to the comments of the International Confederation of Free Trade Unions (ICFTU), dated 31 August 2005.

The Committee also notes the comments by the ICFTU on 10 August 2006, as well as the comments made by the National Confederation of Employers of Senegal (CNES), the National Confederation of Workers of Senegal (CNTS) and the National Federation of Independent Unions of Senegal (UNSAS), forwarded by the Government on 26 October 2006. These refer to issues of a legislative nature and relating to the application of the Convention in practice which have already been raised by the Committee. The ICFTU also emphasizes that workers in the agricultural sector and the informal economy are not covered by the Labour Code, including in relation to their trade union rights, and that striking workers in the mining and cement industries have been subject to reprisals. The Committee requests the Government to provide its observations on this subject in its next report.

Article 2 of the Convention. Trade union rights of minors. The Committee has been emphasizing for several years that section L.11 of the Labour Code (as amended in 1997), which provides that minors over 16 years of age may join trade unions unless their membership is opposed by their father, mother or guardian, is not in conformity with Article 2 of the Convention.

The Government states in its report that such a measure is only intended to protect young workers under 18 years of age against possible abuses or denial of rights by the trade union, but that every effort will be made to amend the national legislation in accordance with the provisions of the Convention. Recalling that the objective of workers’ organizations is to defend the interests of their members, the Committee notes this information and requests the Government to keep it informed of any measure adopted or envisaged to guarantee the right to organize of minors who have access to the labour market, both as workers and as apprentices, without parental authorization being necessary.

Articles 2, 5 and 6. Right of workers to establish organizations of their own choosing without previous authorization. With reference to its previous comments concerning the need to repeal Act No. 76-28 of 6 April 1976 and to amend section L.8 of the Labour Code (as amended in 1997) so as to guarantee workers and workers’ organizations the right to establish organizations of their own choosing without previous authorization, the Committee notes that, according to the Government, governmental authorization is not intended to restrict the right to organize, but only to allow the State to exercise control over the morality and capacity of persons responsible for the direction and administration of a trade union, and to obtain precise statistics on the number of trade unions that exist. The Government adds that, if the receipt attesting to the legal existence of a trade union were to be refused, such refusal would be based solely on the morality and legal capacity of the leaders of the trade union, and not on other grounds. The Government nevertheless states that it is examining how to amend the Labour Code and repeal any provisions of laws or regulations that are contrary to the Convention as soon as possible. The Committee expresses the firm hope that the Government will take action to repeal legislative provisions that restrain workers’ freedom to form their own organizations, especially provisions directed at the morality and capacity of workers’ representatives. It asks the Government to keep it informed of any amendment to the legislation adopted in this respect.

Article 3. Requisitioning. The Committee has been emphasizing for several years that section L.276 grants the administrative authorities broad powers to requisition workers in private enterprises and public services and establishments who occupy posts considered to be essential for the security of persons and property, the maintenance of public order, the continuity of public services or the satisfaction of the country’s essential needs. The Committee emphasizes that on many occasions it has recalled that recourse to this type of measure should be limited exclusively to the maintenance of essential services in the strict sense of the term (those the interruption of which would endanger the life, safety or health of the whole or part of the population), public servants exercising authority in the name of the State or acute national crises. In this respect, the Committee asked the Government to provide the decree implementing section L.276, which contains a list of essential services, so that it can ensure that it is consistent with the provisions of the Convention.

The Committee notes from the information provided by the Government that the decree implementing section L.276 has not yet been adopted and that Decree No. 72-017 of 11 January 1972 determining the list of posts, jobs and functions in which the occupants may be requisitioned continues to be applied under section L.288 of the Labour Code. According to the Government, those subject to requisitioning include both workers in the public and private sectors engaged in jobs that are indispensable for the security of persons and property, the maintenance of public order, the continuity of public services and the satisfaction of the country’s essential needs. However, the Committee notes that this Decree provides for the requisitioning of workers in the event of a strike in relation to many posts, jobs and functions to which the definition of essential services in the strict sense of the term (those the interruption of which would endanger the life, personal safety or health of the whole or part of the population) does not apply. Considering under these conditions that recourse to the replacement of striking workers is a serious violation of the right to strike and prevents the free exercise of trade union rights, the Committee asks the Government to take the necessary measures to ensure that the decree implementing section L.276 of the Labour Code only authorizes the requisitioning of workers to ensure the operation of essential services in the strict sense of the term.

The Committee also noted in its previous comments that, under the terms of section L.276 in fine, workplaces or their immediate surroundings may not be occupied during a strike under penalty of the sanctions established in sections L.275 and L.279. The Committee notes that, according to the Government, the provisions relating to the prohibition upon occupying workplaces and their immediate surroundings are only intended to ensure public security in the event of strikes that are not peaceful. While noting this information, the Committee considers that it would be preferable to include an explicit provision, in a law or regulation, establishing that the restrictions envisaged in section L.276 in fine only apply in the event that strikes are no longer peaceful.

Article 4. Dissolution by administrative authority. Finally, the Committee has pointed out for several years the need to amend the national legislation to protect trade union organizations against dissolution by administrative authority (Act No. 65-40 of 22 May 1965), as required by Article 4 of the Convention. The Committee noted that section L.287 of the Labour Code did not explicitly repeal the 1965 provisions on administrative dissolution. The Committee notes the information provided by the Government to the effect that it is examining how to amend or supplement the Labour Code with a view to including in the national legislation an explicit provision establishing that the dissolution of seditious associations, as envisaged by Act No. 65-40, may in no event be applied to occupational trade union organizations. The Committee requests the Government to keep it informed of any amendment to the legislation adopted in this respect.

The Committee once again expresses the firm hope that the necessary steps will be taken in the very near future to ensure that full effect is given to the provisions of the Convention and it requests the Government to keep it informed on this matter.