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

Abolition of Forced Labour Convention, 1957 (No. 105) - Senegal (Ratification: 1961)

Article 1(c) of the Convention. Imposition of sentences of imprisonment involving an obligation to work for breaches of labour discipline. In its previous comments, the Committee emphasized the need to amend sections 624, 643 and 645 of the Merchant Shipping Code (Act No. 2002-22 of 16 August 2002). Under the terms of these provisions, unapproved absence from the vessel, verbal insults, gestures or threats towards a superior and a formal refusal to obey a service order are punishable by imprisonment, which involves compulsory prison labour in accordance with section 692 of the Code of Penal Procedure and section 32 of Decree No. 2001-362 of 4 May 2001 concerning the implementation and organization of penal sanctions. In view of the fact that the scope of these provisions of the Merchant Shipping Code is not confined to cases in which the breach of discipline would endanger the ship or the persons on board, the Committee has considered these provisions to be contrary to the Convention, which prohibits recourse to forced labour, including in the form of compulsory prison labour, as a means of labour discipline.

In this respect, the Committee noted the Government’s indication that the merchant navy had itself considered excessive the penalties provided for and the violations penalized and that, for this reason, in practice penal sanctions were always disregarded in cases of breaches of discipline. In its latest report, the Government indicates that the question of the amendment of sections 642, 643 and 654 is still under examination and that measures will be taken to ensure that the legislation reflects established practice and is in conformity with the Convention.

The Committee recalls that it has been commenting on this matter for over 40 years. It also noted with regret that the Government did not take the opportunity of the adoption of the new Merchant Shipping Code in 2002 to amend the provisions on which it had been commenting. In these circumstances, the Committee trusts that the Government will be able to indicate in its next report the amendment of sections 624, 643 and 645 of the new Merchant Shipping Code so as to ensure that breaches of labour which do not endanger the ship or the persons on board cannot be punished with prison sentences.

Article 1(d). Imposition of prison sentences involving an obligation to work as punishment for participation in strikes. In its previous comments, the Committee referred to section L.276 of the Labour Code, which allows the administrative authority to requisition workers from private enterprises and public services and establishments who are engaged in jobs that are essential for the security of persons and property, the maintenance of public order, the continuity of public services and the satisfaction of the essential needs of the nation. Any worker who does not comply with the requisition order is liable to a fine and a sentence of imprisonment ranging from three months to one year, or only one of these two penalties (section L.279(m)). The Committee also noted that the Decree implementing section L.276 which was to establish the list of jobs concerned was in the process of being adopted and that, in the meantime, Decree No. 72-017 of 11 March 1972, establishing the list of posts, jobs and functions of which the occupants may be requisitioned which continued to apply. It also noted that, in its comments in 2006, the National Confederation of Workers of Senegal (CNTS) indicated that the requisitioning of certain workers sometimes amounted to abuse of authority intended to break strikes called by workers, and that certain employers in the private sector used this process to force workers to remain in their posts when this was not justified by necessity.

In this context, the Committee referred to the comments that it has been making concerning the application of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), in which it has recalled that the power to requisition workers in the event of a strike must be limited to the workers required to maintain essential services in the strict sense of the term. In so far as the power to requisition workers may be exercised in respect of workers whose post, job or functions do not constitute essential services in the strict sense of the term and that workers who do not comply with a requisition order are liable to imprisonment involving the obligation to work (section L.279(m)) of the Labour Code), the Committee requested the Government to take the necessary measures to ensure that the Decree implementing section L.276 of the Labour Code, which is in the process of being adopted, is in conformity with the Convention.

In its latest report, the Government confirms that the necessary measures will be adopted for this purpose. It adds that a study has recently been undertaken to identify cases of non-conformity of the national legislation with the ILO’s fundamental Conventions ratified by Senegal, and the solutions which could be adopted in the context of the reform of the Labour Code and certain of its implementing texts. The Government emphasizes that this reform will take time, but that it is committed to comply with its international obligations. The Committee takes due note of this commitment and hopes that all measures will be taken to ensure that the new decree implementing section L.276 of the Labour Code will be adopted in the very near future and that it will limit the list of posts, jobs or functions in which workers may be subject to a requisition order to the posts, jobs or functions that are strictly necessary to ensure the operation of essential services in the strict sense of the term. Furthermore, as the Committee emphasized in paragraph 189 of its 2007 General Survey on the eradication of forced labour, in all cases and regardless of the legality of the strike action in question, any sanctions imposed should not be disproportionate to the seriousness of the violations committed, and the authorities should refrain from applying sentences of imprisonment against those who peacefully organize or participate in a strike.

Finally, the Committee recalls that it emphasized the need to amend the last paragraph of section L.276 of the Labour Code, under the terms of which the exercise of the right to strike may not be accompanied by the occupation of the workplace or its immediate surroundings, under penalty of the sanctions set out in sections L.275 and L.279, with the latter envisaging a sentence of imprisonment ranging from three months to one year and a fine, or one of these penalties. The Committee trusts that the Government will be able to indicate in its next report that sections L.276, last paragraph, and L.279 of the Labour Code have been amended so as to ensure that striking workers who peacefully occupy the workplace or its immediate surroundings are not liable to prison sentences involving the obligation to work.