Observation (CEACR) - adopted 2016, published 106th ILC session (2017)

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. The Committee previously 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, or 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 on the execution and organization of penal sanctions. In view of the fact that the scope of the provisions of the Merchant Shipping Code mentioned above is not confined to cases in which the breach of discipline would endanger the ship or the life or health of 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 Government indicated that the merchant navy had itself considered excessive the penalties provided for and the violations penalized and that in practice penal sanctions were always disregarded in cases of breaches of discipline.

The Committee observes that the Government takes due note in its report of the observations made on the issue of the amendment of sections 624, 643 and 645 of the Merchant Shipping Act and that it undertakes to continue and firm up its efforts to bring the legislation into conformity with practice and with the Convention. The Committee notes with concern that it has been commenting on this matter for over 40 years and that the Government did not take the opportunity of the adoption of the new Merchant Shipping Code in 2002. The Committee accordingly expresses the firm hope that the necessary measures will finally be taken to amend the provisions referred to above of the Merchant Shipping Code so as to ensure that breaches of labour discipline which do not endanger the ship or the persons on board cannot be punished with prison sentences, under which prison labour may be imposed.

Article 1(d). Imposition of sentences of imprisonment 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 (under Title 13 on labour disputes), 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 of from three months to one year, or to only one of these penalties (section L.279(m)). The Committee 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 continued to be applicable. With reference to the comments made on the application of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Committee emphasized that, pursuant to these provisions, 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.

The Committee notes that the Decree to implement section L.276 has still not been adopted. The Committee notes the Government’s reiterated statement of its willingness to take the necessary measures to bring the national legislation into conformity with the Convention and that the reform will be undertaken within the framework of dialogue with the social partners, without detriment to the general interest or the principle of the continuity of public services. In this regard, the Committee wishes to recall that, in all cases and irrespective of the legality of the strike action in question, any sanctions imposed should not be disproportionate to the seriousness of the violations committed, and that the authorities should not have recourse to measures of imprisonment against persons peacefully organizing or participating in a strike. The Committee requests the Government to take the necessary measures to ensure that the Decree implementing section L.276 of the Labour Code is adopted as soon as possible and limits the list of posts, jobs or functions of which the occupants may be subject to a requisition order to posts, jobs or functions that are strictly necessary to ensure the operation of essential services in the strict sense of the term.

The Committee also previously 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 of from three months to one year and a fine, or one of these two penalties). The Committee once again expresses the firm hope that the necessary measures will be taken to amend the last paragraph of section L.276 and section L.279 of the Labour Code so as to ensure that striking workers who peacefully occupy the workplace or its immediate surroundings are not liable to prison sentences during which prison labour may be imposed.