Direct Request (CEACR) - adopted 2011, published 101st ILC session (2012)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Congo (Ratification: 1999)

The Committee recalls that in its previous comments it requested the Government to reply to the comments of the International Trade Union Confederation (ITUC), dated 26 August 2009, on the subject of anti-union dismissals in the cement sector. It notes that the Government’s report does not contain any reply on this point. It therefore once again requests the Government to provide its observations on the comments made by the ITUC.

Articles 1, 2 and 3 of the Convention. Protection against acts of anti-union discrimination and interference. In its previous comments, the Committee noted that section 210(1) of the Labour Code provides that it is prohibited for any employer to take into consideration membership of a trade union or the performance of trade union duties in taking decisions regarding, inter alia, hiring, conduct, distribution of work, vocational training, promotion, remuneration and the granting of social benefits, as well as disciplinary measures and dismissal. Section 210(2) of the Labour Code prohibits acts of interference against workers’ organizations. The Committee also noted that section 210(3) provides that any measure taken by an employer that contravenes subsections (1) and (2) shall be considered as unjustified and give rise to damages. The Committee notes the Government’s indication in its report that it has no information on the damages awarded by the courts to workers who have been victims of acts of anti-union discrimination or interference by employers. It once again reminds the Government that it considers that legislation prohibiting acts of anti-union discrimination and interference is inadequate if it is not accompanied by prompt and efficient procedures and sanctions that are sufficiently dissuasive to ensure their application (see the 1994 General Survey on freedom of association and collective bargaining, paragraph 230). The Committee once again requests the Government to provide any information available to it in its next report on the application in practice of section 210(3) of the Labour Code, particularly with regard to the amount of damages awarded to workers in the context of disputes relating to acts of anti-union discrimination or interference by employers.

Article 4. Collective bargaining on the deduction of trade union dues. The Committee notes the Government’s confirmation that, since the check-off system was abandoned in 1991 when trade union pluralism was guaranteed, there has been no procedure for deducting trade union dues from workers’ pay. According to the Government, this matter has been addressed in tripartite meetings, of which the outcome is that it is the responsibility of the trade unions to collect the dues from their members. The Committee understands that there is no formal prohibition upon trade unions from negotiating procedures for the deduction of trade union dues from their members’ pay. Noting that this matter is envisaged in the context of the current reform of the Labour Code, the Committee trusts that this reform will provide the opportunity to ensure that the question of the deduction of trade union dues by employers and their transfer to trade unions can be included in the case of collective bargaining.

The Committee also recalls that in its previous comments it noted that section 245 of the Labour Code provides that, when a collective dispute is referred to it, the Recommendations Committee shall produce, within seven days, a report that includes recommendations to the labour inspector or the official responsible, and that section 246 of the Labour Code provides that the parties concerned in the dispute have a period of four working days from the time of their notification of the report to challenge it, and that in the absence of a challenge the report becomes binding. The Committee notes that, in reply to its request for clarifications concerning the consequences of one of the parties challenging the report of the Recommendations Committee within the prescribed time limit, the Government indicates that in practice collective disputes have never reached the level of issuing recommendations and that there exists a legal void, which it plans to remedy in the context of the revision of the Labour Code. The Committee requests the Government to provide a copy of the revised draft Labour Code, and particularly the provisions respecting the two points raised above.

Articles 1, 2, 4 and 6. Right to collective bargaining in the public sector. The Committee noted previously that section 2 of the Labour Code provides that persons with indefinite appointments in the public administration are not subject to the Labour Code and that contractual public employees are governed by the special legislative provisions applicable to the public administration in relation to the exercise of the right to strike. The Committee also noted that section 248-13 provides that the provisions of Title VIII of the Labour Code (settlement of labour disputes) apply to the staff of public or private enterprises, bodies and establishments where such enterprises, bodies and establishments are responsible for the management of a service employing salaried employees governed by the Labour Code. The Committee notes with regret that the Government’s report does not contain a reply to its previous comments on this point. It reminds the Government, with regard to the application of Article 6 of the Convention, that a distinction must be drawn between, on the one hand, public servants who by their functions are directly employed in the administration of the State (for example, civil servants employed in government ministries and other comparable bodies, as well as ancillary staff), who may be excluded from the scope of the Convention and, on the other hand, all other persons employed by the Government, by public enterprises or by autonomous public institutions, who should benefit from the guarantees provided for in the Convention (see General Survey, op. cit., paragraph 200). The Committee therefore once again requests the Government to provide the text of the legislation applicable to persons employed in public administrations which are excluded from the scope of the Labour Code in relation to the rights set out in Articles 1, 2 and 4 of the Convention.