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

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Democratic Republic of the Congo (Ratification: 1969)

The Committee notes the Government’s report in reply to the questions raised in 2007 by the Trade Union Confederation of the Congo (CSC) and the International Trade Union Confederation (ITUC) on the application of the Convention. According to the recent comments made by the ITUC, dated 29 August 2008, the Committee notes that most of the 400 trade unions in the private sector, mainly in the natural resources sector, do not have active members and were in fact created by employers to mislead workers and discourage initiatives to create genuine trade unions.

The Committee notes with interest that the Government states in its report that it intends to give effect to the Committee’s recommendation to conduct an independent investigation in order to clarify the questions raised by the ITUC and by the CSC concerning: (1) acts of discrimination and anti-union interference in private enterprises (including threats of dismissal against union members despite the fact that section 234 of the Labour Code prohibits acts of anti-union discrimination); (2) the existence of many unions established and financed by employers; and (3) the failure to comply with collective agreements. The Committee therefore requests the Government to indicate the developments and conclusions of the independent investigation.

Article 2 of the Convention. Protection against acts of interference. The Committee noted previously that, according to the Government, the National Labour Council has not yet adopted the draft Order prohibiting acts of interference. The Committee recalled that, although section 235 of the new Labour Code prohibits all acts of interference by organizations of employers and workers in each others’ affairs, section 236 provides that acts of interference must be defined more precisely. The Committee notes the Government’s reply to the effect that the National Labour Council has not yet taken a decision on the draft Order prohibiting acts of interference. To that end, the Committee notes that the Government undertakes to provide a copy of the Order once it has been adopted. The Committee hopes that the Order concerned will be adopted as soon as possible and requests the Government to provide information on developments in this regard.

Article 6. Collective bargaining in the public sector. The Committee noted previously that section 1 of the Labour Code explicitly excludes from the Code career members of the state public services who are governed by the general conditions of service (Act No. 81-003 of 17 July 1981 issuing the conditions of service of career members of state public services and explicitly providing for the establishment of institutions ensuring the representation of the personnel) and career employees and officials of state public services who are governed by specific conditions of service. The CSC had indicated in its comments of 31 May 2004, the existence of measures allowing the establishment of mechanisms for the promotion of collective bargaining in the public sector. The Committee had noted the information provided by the Government concerning the right of public employees not engaged in the administration of the state to engage in collective bargaining, and particularly: (1) the agreement of 11 September 1999 on basic wages concluded by the Government and the unions of the public administration at a meeting of the joint committee; (2) the “social contract for innovation” of
12 February 2004 concluded by the Government and the unions of the public administration; and (3) the agreement concluded by the Government and the unions of the public administration following a strike by unions in the education sector in 2005. The Committee had concluded that, in practice, there were wage negotiations and agreements in the public sector.

The Committee observes that the Government has sent the text of Ministerial Order No. 12/CAB.MIN/TPS/ar/NK/054 of 12 October 2004, establishing the procedures for the representation and recourse to elections of workers in enterprises or establishments of all types. The Committee also notes the Government’s indication that it intends to regulate the salaries of public servants set by negotiated agreements in the context of the imminent reform of the public administration. In this regard, the Committee also notes the comment by the ITUC that the staff of decentralized entities (towns, territories and sectors), who comprise a subcategory of public servant, do not enjoy the right to bargain. The Committee reiterates its previous request to the Government to take steps to ensure that the legislation guarantees the right of collective bargaining for public servants not engaged in the administration of the State, as established under Articles 4 and 6 of the Convention, and requests the Government to indicate the developments concerning the reform of the public administration.