Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Burundi (Ratification: 1993)

The Committee notes the Government’s report and the information provided in reply to its previous comments. The Committee also notes the observations of the International Trade Union Confederation (ITUC) received in August 2007 and relating to matters already raised by the Committee.

Article 2 of the Convention. Right of public employees without distinction whatsoever to establish and join organizations of their own choosing. With regard to the right to organize of magistrates, the Committee notes the Government’s indication that, even though the Minister of Justice considered that the registration of the Union of Magistrates of Burundi (SYMABU) was not valid as section 14 of the Labour Code excludes magistrates from its scope, the current Government recognizes the SYMABU as a partner which it meets to discuss its claims. Moreover, the Government refers to section 33 of Law No. 1/001 of 29 February 2000 on the reform of the regulations governing magistrates, which recognizes the right to organize to magistrates, including the right to strike for professional reasons, which they exercise in accordance with the legislative provisions of the regulations governing magistrates. The Government adds that these regulations have not yet been adopted. The Committee once again notes with regret the lack of the statutory provisions on the right to organize of magistrates and observes that this situation is the reason behind difficulties of registration of the SYMABU. The Committee trusts that the Government will take the necessary measures without delay in order to adopt such statutory provisions so as to ensure and clearly define the right to organize of magistrates.

Right to organize of minors. For several years, the Committee has been raising the matter of the compatibility of section 271 of the Labour Code with the Convention, as this section provides that minors under the age of 18 may not join a trade union without the explicit permission of their parents or guardians. The Committee requests the Government to recognize the right to join trade unions of minors under 18 years of age who are engaged in an occupational activity without the permission of their parents or guardians being necessary.

Article 3. Right of workers’ and employers’ organizations to draw up their constitutions and rules, elect their representatives in full freedom, organize their administration and activities and formulate their programmes without interference by the public authorities. Election of trade union officers. The Committee recalls that its previous comments related to section 275 of the Labour Code which sets the following conditions for holding the position of trade union officer or administrator.

(a)   Criminal record. Under section 275(3) of the Labour Code, holders of trade union office may not have been sentenced to imprisonment without suspension of sentence for more than six months. The Committee recalls that conviction for an act which, by its nature, does not call into question the integrity of the person and implies no real risk for the performance of trade union duties should not constitute grounds for exclusion from trade union office.

(b)   Belonging to the occupation. Section 275(4) of the Labour Code requires trade union leaders to have belonged to the occupation or trade for at least one year. The Committee previously requested the Government to make the legislation more flexible by allowing persons who had previously worked in the occupation to stand for office or by lifting this requirement for a reasonable proportion of trade union officers.

The Committee once again requests the Government to take the necessary measures to amend section 275(3) and (4) of the Labour Code, taking fully into account the principles recalled above.

Right to strike. In its previous comments, the Committee raised the matter of the succession of compulsory procedures to be followed before calling a strike (sections 191 to 210 of the Labour Code), which appear to authorize the Minister of Labour to prevent all strikes. The Committee notes that the Government confines itself to indicating that the provisions to be issued under the Labour Code respecting the modalities for the exercise of the right to strike have not yet been issued. Recalling that the right to strike is one of the essential means available to trade unions to further and defend the interests of their members, the Committee urges the Government to adopt and provide it with a copy of the text to be issued under the Labour Code on the modalities for the exercise of the right to strike, taking into account the principles recalled above.

The Committee also noted that, under section 213 of the Labour Code, strikes are lawful when they are called with the approval of a simple majority of the employees of the workplace or enterprise. The Committee recalled that, when voting on strikes, the ballot method, the quorum and the majority required should not be such that the exercise of the right to strike becomes very difficult in practice. If a member State sees fit to establish in its legislation provisions requiring a vote by workers before a strike can be held, it should ensure that account is taken only of the votes cast and that the required majority and quorum are fixed at a reasonable level (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 170). The Committee urges the Government to indicate in its next report the measures taken to amend section 213 of the Labour Code in the light of the comments made above.

In its previous observation, the Committee noted that the Government had adopted a legislative decree prohibiting the exercise of the right to strike and to demonstrate throughout the national territory during the period of the elections. According to the Government, this legislative decree has not been used in practice. The Committee requests the Government to indicate whether this legislative decree was repealed following the elections.

In its previous observation, the Committee noted the information provided by the Confederation of Burundi Trade Unions (COSYBU) reporting grave violations of trade union rights in relation to several trade union leaders, including the President of COSYBU, and also interference in the representativeness and everyday administration of COSYBU. In addition, according to the COSYBU, workers who endeavour to organize in the private sector are threatened with dismissal or demotion by their employers. The Committee notes that the ITUC reiterates these grave allegations in its communication of 2007. The Committee notes the Government’s reply indicating that the majority of COSYBU’s grievances took place under previous authorities and are regrettable and that the new Government is ready to cooperate closely with trade union organizations and that the COSYBU can attest to the positive steps taken in this regard. Finally, the Government indicates that there are no pending judicial proceeding concerning the COSYBU’s allegations. The Committee expresses the firm hope that the Government will take the necessary measures to ensure that trade union organizations can exercise in full their right to organize their activities freely without interference from the public authorities.

The Committee notes that the Government has set up a tripartite committee responsible for rapidly proposing new provision of the Labour Code which would take into account the claims of the social partners, the reports of the labour inspection and the comments of the Committee. The Committee requests the Government to keep it informed of the progress made in revising the Labour Code and recalls that technical assistance of the Office is at its disposal.

Furthermore, a request relating to other issues is being addressed directly to the Government.