Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

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

The Committee previously requested the Government to send its reply to observations made by the International Confederation of Free Trade Unions (ICFTU), which indicated that workers in the agricultural and informal sectors are not covered by the Labour Code, including in terms of trade union rights, and that striking workers in the mining and cement industries had been subject to reprisals. The Committee notes that the Government indicates in its report that the Labour Code applies to all workers in the private sector, including workers in agriculture and the informal sector. It also states that striking workers in the mining and cement industries were dismissed upon the authorization of the labour inspectorate, which conducted a thorough inquiry and concluded that the individuals concerned had taken part in an unlawful strike, sabotaged the main electrical substation and issued insults and threats with regard to their hierarchical superiors.

The Committee also notes the observations received from the International Trade Union Confederation (ITUC) in August 2008, the National Confederation of Workers of Senegal (CNTS) in September 2008 and the Free Workers Union of Senegal (UTLS) in September 2007, which refer to legislative matters already raised by the Committee. The comments also deal with intervention by the security forces during authorized protest marches and with discriminatory practices in the recognition of trade unions. The Committee requests the Government to send in its next report its observations on the comments above.

Article 2 of the Convention. Trade union rights of minors. The Committee has been emphasizing for a number of 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 Committee notes that the Government merely indicates in its report that the question of amending section L.11 is still under examination. The Committee trusts that the Government will take all necessary measures without delay to guarantee the right to organize of minors who have reached the legal minimum age for admission to employment (15 years, according to section L.145 of the Labour Code) as workers or apprentices, without the need for authorization from a parent or guardian being necessary.

Articles 2, 5 and 6. Right of workers to establish organizations of their own choosing without previous authorization. The Committee reminds the Government that it has been commenting for a number of years on the need to repeal Act No. 76-28 of 6 April 1976 and amend section L.8 of the Labour Code (as amended in 1997) in order to guarantee workers and workers’ organizations the right to establish organizations of their own choosing without prior authorization. After indicating in its report of 2006 that it was examining ways of amending the Labour Code and repealing any legislative or regulatory provisions contrary to the Convention as soon as possible, the Government merely indicates in its last report that the question is still under examination. Moreover, the Committee notes that, according to the CNTS, in practice some trade unions are recognized without having held a general assembly or congress while other trade unions constituted according to the regulations have been waiting years for their receipt to be issued. The Committee once again expresses the firm hope that the Government will adopt measures without delay to repeal legislative provisions which restrict workers’ freedom to form their own organizations, especially provisions directed at the morality and capacity of trade union leaders, or which grant the authorities a de facto discretionary power of prior approval, which is contrary to the Convention. The Committee trusts that the Government will provide information in its next report on any measures taken in this regard.

Article 3. Requisitioning in the event of a strike. The Committee recalls that its comments have been emphasizing for several years that section L.276 grants the administrative authorities, in the event of a strike, broad powers to requisition workers in private enterprises, as well as in 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. This provision states that the list of posts defined in this way shall be drawn up by decree. The Committee has recalled on many occasions 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), to public servants exercising authority in the name of the State or to acute national crises. The Committee also asked the Government to send a copy of the decree implementing section L.276 so that it can ensure that it is consistent with the provisions of the Convention. In its last report, the Government repeats that since the decree implementing section L.276 has not yet been adopted, it is Decree No. 72-017 of 11 January 1972 determining the list of posts, jobs and functions in which the occupants may be requisitioned which continues to be applied under section L.288 of the Labour Code. The Committee expresses the firm hope that the Government will take the necessary steps without delay to adopt the decree implementing section L.276 of the Labour Code and that the list of jobs determined by that decree will only authorize the requisitioning of workers in the event of a strike to ensure the operation of essential services in the strict sense of the term.

Occupation of workplaces in the event of a strike. The Committee 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, otherwise the penalties established in sections L.275 and L.279 will apply. The Committee considered it 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. Noting the statement by the Government that it takes note of the comments above, the Committee trusts that the Government’s next report will describe the steps taken to include a provision stating that the restrictions envisaged in section L.276 in fine only apply in the event that strikes are no longer peaceful or in cases where the freedom to work of non-strikers and the right of the enterprise management to enter the workplace are not respected.

Article 4. Dissolution by administrative authority. The Committee has been reminding the Government for several years of 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), in accordance with 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 indication by the Government in its last report that Act No. 65-40 does not apply to trade unions, which can only be dissolved by statutory, voluntary or judicial means, but that the Government is continuing to examine ways of amending or supplementing the Labour Code to include an explicit provision in the national legislation stating that the dissolution of seditious associations provided for by Act No. 65-40 may on no account be applied to occupational trade union organizations. The Committee trusts that the Government will indicate in its next report the steps taken to amend the legislation in this respect.

The Committee once again expresses the firm hope that the necessary steps will be taken without delay to give full effect to the provisions of the Convention and that the Government’s next report will provide information on the progress made. It reminds the Government that it may request technical assistance from the Office in this regard.