Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Democratic Republic of the Congo (Ratification: 2001)

Observation (CEACR) - adopted 2023, published 112nd ILC session (2024)

The Committee notes that the Government’s report has not been received. It is therefore bound to repeat its previous comments.

Repetition

Articles 2 and 5 of the Convention. Right to organize in the public service. In its previous comments, the Committee noted that: (i) under the terms of section 94 of Act No. 16/013 of 15 July 2016 on the conditions of service of permanent public service employees, freedom of association is guaranteed for public service employees; and (ii) under section 93 of the Act, the exercise of the right to strike by public service employees can only be restricted under the conditions established by the law, in particular, so as to ensure the normal provision of “public services of vital interest, which cannot suffer any type of interruption.” A Decree of the Prime Minister establishes the list of services of vital interest, as well as the details of the minimum service in these services. The Committee notes the Government’s indications that a copy of the Decree will be communicated following its publication in the Official Journal. In this regard, the Committee recalls that the right to strike may be restricted or prohibited: (i) in the public service only for public servants exercising authority in the name of the State; or (ii) in essential services in the strict sense of the term; or (iii) in the case of an acute national or local crisis. The Committee trusts that the Decree in question will be adopted shortly, taking into account the Committee’s observations, and requests the Government to provide a copy of the Decree with its next report.

With regard to the trade union rights of judges, the Committee previously noted that, according to the Government, the freedom of association of judges is recognized under the provisional Order of 1996 and that judges’ trade unions exist. The Committee had noted that Organic Act No. 06/020 of 10 October 2006 on the conditions of service of judges, to which the Government refers in its report, did not contain any provisions that address the concerns of the Committee and therefore requested the Government to indicate whether provisions were envisaged to explicitly ensure that judges enjoy the rights laid down in the Convention. The Committee notes the Government’s indications that the provisional Order of 1996 remains in force pending the amendment of the Act of 2006, which was being discussed in Parliament. The Committee trusts that the revision process of the Act of 2006 will be concluded as soon as possible and will ensure freedom of association of judges. It requests the Government to provide, with its next report, a copy of the revised Act.

Article 3. Right of foreign workers to hold trade union office. In its previous comments the Committee noted with regret that Act No. 16/010 of 15 July 2016 amending and supplementing Act No. 015-2002 on the Labour Code did not remove the provision requiring 20 years of residence in order to be eligible for appointment to administrative or executive positions in trade unions (new section 241). The Committee recalled that a period of three years is reasonable in this respect but that a 20-year period for access to trade union office is excessive (see the 2012 General Survey on the fundamental Conventions, paragraph 103). The Committee notes the Government’s indication that it has undertaken to bring this matter before the National Labour Council. Recalling once again that national legislation should allow foreign workers to take up trade union office, at least after a reasonable period of residence in the host country, the Committee expects the Government to take measures, in the near future, to amend section 241 of the Labour Code, as revised by the Act of July 2016, accordingly.

Articles 3 and 4. Other legislative and regulatory issues. In its previous comments, the Committee requested the Government, on numerous occasions, to take steps to amend: (i) section 11 of Order No. 12/CVAB.MIN/TPS/113/2005 of 26 October 2005, which prohibits striking workers from entering and remaining on work premises affected by the strike; (ii) section 326 of the Labour Code and in that regard suggested including an additional provision stipulating that penalties against strikers must be proportionate to the offence committed and that no prison sentence shall be imposed unless criminal or violent acts have been committed; (iii) section 28 of Act No. 016/2002 concerning the establishment, organization and functioning of labour tribunals so as to allow recourse to the labour tribunal, should conciliation and mediation procedures have been exhausted, only on the basis of a voluntary decision of the parties to the dispute; and (iv) section 251 of the Labour Code to ensure that the issue of the dissolution of trade union organizations will be regulated by their union constitutions and rules.

The Committee notes with concern that, despite the adoption of Act No. 16/010 of 15 July 2016 (amending and supplementing the Labour Code) and of Act No. 016/2002 (concerning the establishment, organization and functioning of labour tribunals), the above provisions are still not in conformity with the requirements of the Convention, and that the Government only indicates that the above matters will be brought before the National Labour Council. The Committee expects that the Government will take all necessary measures to amend the above provisions and that it will refer to specific progress made in its next report.

The Committee hopes that the Government will make every effort to take the necessary action in the near future.

Observation (CEACR) - adopted 2019, published 109th ILC session (2021)

Articles 2 and 5 of the Convention. Right to organize in the public service. In its previous comments, the Committee noted that: (i) under the terms of section 94 of Act No. 16/013 of 15 July 2016 on the conditions of service of permanent public service employees, freedom of association is guaranteed for public service employees; and (ii) under section 93 of the Act, the exercise of the right to strike by public service employees can only be restricted under the conditions established by the law, in particular, so as to ensure the normal provision of “public services of vital interest, which cannot suffer any type of interruption.” A Decree of the Prime Minister establishes the list of services of vital interest, as well as the details of the minimum service in these services. The Committee notes the Government’s indications that a copy of the Decree will be communicated following its publication in the Official Journal. In this regard, the Committee recalls that the right to strike may be restricted or prohibited: (i) in the public service only for public servants exercising authority in the name of the State; or (ii) in essential services in the strict sense of the term; or (iii) in the case of an acute national or local crisis. The Committee trusts that the Decree in question will be adopted shortly, taking into account the Committee’s observations, and requests the Government to provide a copy of the Decree with its next report.

With regard to the trade union rights of judges, the Committee previously noted that, according to the Government, the freedom of association of judges is recognized under the provisional Order of 1996 and that judges’ trade unions exist. The Committee had noted that Organic Act No. 06/020 of 10 October 2006 on the conditions of service of judges, to which the Government refers in its report, did not contain any provisions that address the concerns of the Committee and therefore requested the Government to indicate whether provisions were envisaged to explicitly ensure that judges enjoy the rights laid down in the Convention. The Committee notes the Government’s indications that the provisional Order of 1996 remains in force pending the amendment of the Act of 2006, which was being discussed in Parliament. The Committee trusts that the revision process of the Act of 2006 will be concluded as soon as possible and will ensure freedom of association of judges. It requests the Government to provide, with its next report, a copy of the revised Act.

Article 3. Right of foreign workers to hold trade union office. In its previous comments the Committee noted with regret that Act No. 16/010 of 15 July 2016 amending and supplementing Act No. 015-2002 on the Labour Code did not remove the provision requiring 20 years of residence in order to be eligible for appointment to administrative or executive positions in trade unions (new section 241). The Committee recalled that a period of three years is reasonable in this respect but that a 20-year period for access to trade union office is excessive (see the 2012 General Survey on the fundamental Conventions, paragraph 103). The Committee notes the Government’s indication that it has undertaken to bring this matter before the National Labour Council. Recalling once again that national legislation should allow foreign workers to take up trade union office, at least after a reasonable period of residence in the host country, the Committee expects the Government to take measures, in the near future, to amend section 241 of the Labour Code, as revised by the Act of July 2016, accordingly.

Articles 3 and 4. Other legislative and regulatory issues. In its previous comments, the Committee requested the Government, on numerous occasions, to take steps to amend: (i) section 11 of Order No. 12/CVAB.MIN/TPS/113/2005 of 26 October 2005, which prohibits striking workers from entering and remaining on work premises affected by the strike; (ii) section 326 of the Labour Code and in that regard suggested including an additional provision stipulating that penalties against strikers must be proportionate to the offence committed and that no prison sentence shall be imposed unless criminal or violent acts have been committed; (iii) section 28 of Act No. 016/2002 concerning the establishment, organization and functioning of labour tribunals so as to allow recourse to the labour tribunal, should conciliation and mediation procedures have been exhausted, only on the basis of a voluntary decision of the parties to the dispute; and (iv) section 251 of the Labour Code to ensure that the issue of the dissolution of trade union organizations will be regulated by their union constitutions and rules.

The Committee notes with concern that, despite the adoption of Act No. 16/010 of 15 July 2016 (amending and supplementing the Labour Code) and of Act No. 016/2002 (concerning the establishment, organization and functioning of labour tribunals), the above provisions are still not in conformity with the requirements of the Convention, and that the Government only indicates that the above matters will be brought before the National Labour Council. The Committee expects that the Government will take all necessary measures to amend the above provisions and that it will refer to specific progress made in its next report.

Direct Request (CEACR) - adopted 2018, published 108th ILC session (2019)

Article 3 of the Convention. In its previous comments, the Committee requested the Government to take measures to amend section 11 of Order No. 12/CVAB.MIN/TPS/113/2005 of 26 October 2005, which prohibits striking workers from entering and remaining on work premises affected by the strike.

Furthermore, the Committee asked the Government to adopt measures relating to section 326 of the Labour Code and suggested including a provision stipulating that penalties against strikers must be proportionate to the offence committed and that no prison sentence shall be imposed unless criminal or violent acts have been committed. The Government indicates that it agrees and that, in any event, the penalties provided for in the section in question only set “maximums”. According to the Government, the prison sentence established in section 326 is not handed down to all strikers, but to those who do not comply with the procedure for collective work stoppages and who resort to acts and threats intended to force other workers to participate in a collective work stoppage or to prevent others from working or from returning to work.

Moreover, the Committee previously noted the Government’s agreement to amend section 28 of Act No. 016/2002 on the establishment, organization and functioning of labour courts so as to allow recourse to the labour court, should conciliation and mediation procedures have been exhausted, only on the basis of a voluntary decision of the parties to the dispute. The Committee notes that, according to the information provided by the Government in its report, the proceedings of the 33rd session of the National Labour Council, which was held from 25 October to 1 November 2017 in Kinshasa, did not address the amendment of this section.

Article 4. In its previous comments, the Committee noted, as it had in the past, the Government’s agreement to amend section 251 of the Labour Code to ensure that the issue of the dissolution of trade union organizations will be regulated by their union constitutions and rules.

Noting, once again, with regret that the above provisions of the Labour Code, despite the adoption of Act No. 16/010 of 15 July 2016 (amending and supplementing the Labour Code), and those of Act No. 016/2002 (on the establishment, organization and functioning of the labour courts) are not yet in line with the requirements of the Convention, the Committee urges the Government to take the necessary measures to amend the legislation in the near future. The Committee also requests the Government, once again, to indicate the measures taken or envisaged to amend section 11 of Order No. 12/CVAB.MIN/TPS/113/2005 of 26 October 2005.

Observation (CEACR) - adopted 2018, published 108th ILC session (2019)

Articles 2 and 5 of the Convention. Right to organize in the public service. The Committee notes with interest the adoption of Act No. 16/013 of 15 July 2016 on the conditions of service of permanent public service employees. It notes that, under the terms of section 94, freedom of association is guaranteed for public service employees, and that they can freely establish and join trade union organizations and hold trade union office, and that such organizations may conduct legal proceedings. The Committee notes that, under section 93 of the Act, the exercise of the right to strike by public service employees can only be restricted under the conditions established by the law, in particular, so as to ensure the normal provision of “public services of vital interest, which cannot suffer any type of interruption”. A Decree of the Prime Minister adopted in the Cabinet (Conseil des ministres), on a joint proposal by the ministers responsible for the public service and human rights, establishes the list of services of vital interest, as well as the details of the minimum service in these services. The Committee requests the Government to provide a copy of the abovementioned Decree of the Prime Minister with its next report.

With regard to the trade union rights of judges, the Committee previously noted that, according to the Government, the freedom of association of judges is recognized under the provisional Order of 1996 and that judges’ trade unions exist. The Committee notes that Organic Act No. 06/020 of 10 October 2006 on the conditions of service of judges, to which the Government refers in its report, does not contain any provisions that address the concerns of the Committee. The Committee therefore requests the Government to indicate whether provisions are envisaged to explicitly ensure that judges enjoy the rights laid down in the Convention.

Article 3. Right of foreign workers to hold trade union office. In its previous comments, the Committee noted with regret that Act No. 16/010 of 15 July 2016 amending and supplementing Act No. 015-2002 on the Labour Code did not remove the provision requiring 20 years of residence in order to be eligible for appointment to administrative or executive positions in trade unions (new section 241). While noting the Government’s reference to the work of the National Labour Council, which requires the provision in question to be maintained so that foreign workers have a full understanding of national labour legislation and practices, the Committee observes that it has considered a period of three years to be reasonable in this respect but that a 20-year period for access to trade union office is excessive (see the 2012 General Survey on the fundamental Conventions, paragraph 103). Recalling that national legislation should allow foreign workers to take up trade union office, at least after a reasonable period of residence in the host country, the Committee urges the Government to take measures to amend section 241 of the Labour Code, as revised by the Act of July 2016, accordingly.

The Committee is raising other matters in a request addressed directly to the Government.

Direct Request (CEACR) - adopted 2017, published 107th ILC session (2018)

The Committee notes with regret that the Government’s report has not been received. It also notes that the Government had been requested to provide information to the Committee on the Application of Standards at the 106th Session of the International Labour Conference, owing to the failure to send reports and information on the application of ratified Conventions. Noting that the Government received, in November 2017, technical assistance from the Office and the ILO International Training Centre in this regard, the Committee expects that the Government will be more cooperative in the future in fulfilling its constitutional obligations. The Committee notes the promulgation of Act No. 16/010 of 15 July 2016 amending and supplementing Act No. 015-2002 on the Labour Code.

Article 3 of the Convention. In its previous comments, the Committee requested the Government to take measures to amend section 11 of Order No. 12/CVAB.MIN/TPS/113/2005 of 26 October 2005, which prohibits striking workers from entering and remaining on work premises affected by the strike.

Furthermore, the Committee asked the Government to adopt measures relating to section 326 of the Labour Code and suggested including a provision stipulating that penalties against strikers must be proportionate to the offence committed and that no prison sentence shall be imposed unless criminal or violent acts have been committed.

Moreover, the Committee previously noted the Government’s agreement to amend section 28 of Act No. 016/2002 on the establishment, organization and functioning of labour tribunals so as to allow recourse to the labour tribunal, should conciliation and mediation procedures have been exhausted, only on the basis of a voluntary decision of the parties to the dispute.

Article 4. In its previous comments, the Committee noted the Government’s agreement to amend section 251 of the Labour Code to ensure that the issue of the dissolution of trade union organizations will be regulated by their union constitutions and rules.

Noting with regret that the above provisions of the Labour Code, despite the adoption of Act No. 16/010 of 15 July 2016 (amending and supplementing the Labour Code), and those of Act No. 016/2002 (on the establishment, organization and functioning of the labour courts) are not yet in line with the requirements of the Convention, the Committee requests the Government to take the necessary measures to amend the legislation in the near future. The Committee also requests the Government to indicate the measures taken or envisaged to amend section 11 of Order No. 12/CVAB.MIN/TPS/113/2005 of 26 October 2005.

Observation (CEACR) - adopted 2017, published 107th ILC session (2018)

The Committee notes with regret that the Government’s report has not been received. It also notes that the Government had been requested to provide information to the Committee on the Application of Standards at the 106th Session of the International Labour Conference, owing to the failure to send reports and information on the application of ratified Conventions. Noting that the Government received, in November 2017, technical assistance from the Office and the ILO International Training Centre in this regard, the Committee expects that the Government will be more cooperative in the future in fulfilling its constitutional obligations. The Committee notes the observations of the International Trade Union Confederation (ITUC) in 2016, as well as in 2014 and 2013, which refer to the issues addressed in this observation and in the corresponding direct request, as well as issues concerning the application of the Convention in practice. The Committee requests the Government to provide its comments in this regard.

Articles 2 and 5 of the Convention. Right to organize in the public service. In its previous comments, the Committee asked the Government to take the necessary steps to ensure that the reform of the public administration and the revision of the conditions of service of career members of the public service enable the guarantees enshrined in the Convention to be afforded to all state employees. The Committee noted the Government’s indication that the reform is still in progress but that the 2013 version of the draft revised conditions of service of career members of the public service had been approved by the general secretaries of the public administration to be submitted to Parliament for adoption. The Committee once again expresses the firm hope that the Government will provide information in its next report on the adoption of new conditions of service of career members of the public service which secure the rights laid down in the Convention to all state employees.

Furthermore, the Committee previously requested the Government to specify the instrument that safeguards the trade union rights of magistrates. The Committee noted that, according to the Government, the freedom of association of magistrates is recognized under the provisional Order of 1996 and that magistrates’ trade unions exist. The Committee requests the Government to provide information on the reform of the public administration and in particular to indicate whether provisions are envisaged to explicitly ensure that magistrates enjoy the rights laid down in the Convention.

Article 3. Right of foreign workers to hold trade union office. The Committee notes the promulgation of Act No. 16/010 of 15 July 2016 amending and supplementing Act No. 015-2002 on the Labour Code. It notes with regret that new section 241 of the Labour Code continues the prior legislative requirement that eligibility for appointment to administrative or executive positions in trade unions is conditional on residence of 20 years. Recalling that the national legislation should allow foreign workers to take up trade union office, at least after a reasonable period of residence in the host country (see the 2012 General Survey on the fundamental Conventions, paragraph 103), the Committee requests the Government to take measures to amend, to this end, section 241 of the Labour Code, as revised by the Act of July 2016.

The Committee is raising other matters in a request addressed directly to the Government.

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

The Committee notes that the Government’s report has not been received. It hopes that the next report will contain full information on the matters raised in its previous comments.

Repetition

Article 3 of the Convention. In its previous comments the Committee asked the Government to take the necessary steps to amend section 11 of Order No. 12/CVAB.MIN/TPS/113/2005 of 26 October 2005, which prohibits striking workers from entering and remaining on work premises affected by the strike. The Committee notes that the Government does not supply any information in this regard.

Moreover, the Committee asked the Government to adopt measures relating to section 326 of the Labour Code and suggested including an additional provision stipulating that penalties against strikers must be proportionate to the offence committed and that no prison sentence shall be imposed unless criminal or violent acts have been committed. The Committee notes the Government’s indication that the amendment of section 326 of the Labour Code as recommended is being approved and will be implemented as part of the revision of the Code.

Furthermore, the Committee notes the Government’s agreement to amend section 28 of Act No. 016/2002 concerning the establishment, organization and functioning of labour tribunals so as to allow recourse to the labour tribunal, should conciliation and mediation procedures have been exhausted, only on the basis of a voluntary decision of the parties to the dispute.

Article 4. The Committee notes the Government’s agreement to amend section 251 of the Labour Code to ensure that the issue of the dissolution of trade union organizations will be regulated by their union constitutions and rules. The Government indicates that the amendment will be undertaken as part of the revision of the Labour Code.

Duly noting the Government’s willingness to amend certain provisions of the Labour Code and of Act No. 016/2002 (concerning the establishment, organization and functioning of labour tribunals) as referred to above in order to bring them into line with the Convention, the Committee trusts that the Government will take the corresponding measures in the very near future. The Committee also requests the Government to indicate the measures taken or contemplated for amending section 11 of Order No. 12/CVAB.MIN/TPS/113/2005 of 26 October 2005.

Lastly, the Committee again requests the Government to send its observations regarding the results of the trade union elections, published via Order No. 0038/CAB/PVPM/ETPS/2010 of 30 August 2010, which were contested by the National Union of Congolese Workers (UNTC) and the Democratic Confederation of Labour (CDT).

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

The Committee notes the observations of the International Trade Union Confederation (ITUC) received on 31 August 2014 and 31 August 2016. The Committee requests the Government to provide its comments in this regard. The Committee also notes the observations of the International Organisation of Employers (IOE), received on 1 September 2014 and 1 September 2016, which are of a general nature.

The Committee notes that the Government’s report has not been received. It is therefore bound to repeat its previous comments.

The Committee notes the comments dated 30 August 2013 from the International Trade Union Confederation (ITUC) concerning the application of the Convention, particularly those reporting acts of interference during the 2013 trade union elections in the education sector. The Committee requests the Government to send its observations on this matter.

Articles 2 and 5 of the Convention. Right to organize in the public service. In its previous comments, the Committee asked the Government to take the necessary steps to ensure that the reform of the public administration and the revision of the conditions of service of career members of the public service enable the guarantees enshrined in the Convention to be afforded to all state employees. The Committee notes the Government’s indication that the reform is still in progress but that the 2013 version of the draft revised conditions of service of career members of the public service has just been approved by the general secretaries of the public administration and will shortly be submitted to Parliament for adoption. The Committee firmly trusts that the Government will provide information in its next report on the adoption of new conditions of service of career members of the public service which secure the rights laid down in the Convention to all state employees.

Furthermore, the Committee previously asked the Government to specify the instrument that safeguards the trade union rights of magistrates. The Committee notes that the Government reiterates that the freedom of association of magistrates is recognized under the provisional Order of 1996 and that magistrates’ trade unions exist. The Committee hopes that, as part of the reform of the public administration, provisions will be adopted that explicitly secure to magistrates the rights laid down in the Convention.

Article 3. Right of foreign workers to hold trade union office. The Committee previously asked the Government to amend section 241 of the Labour Code, which requires a 20-year residence period as a condition of eligibility for a person to be entrusted with the administration and management of a trade union organization. The Committee notes the indication that the matter was discussed at the 30th meeting of the National Labour Council and that on this occasion the tripartite constituents did not approve the Committee’s recommendations. Recalling that national legislation should allow foreign workers to take up trade union office, at least after a reasonable period of residence in the host country (see 2012 General Survey on the fundamental Conventions, paragraph 103), the Committee requests the Government to amend section 214 of the Labour Code taking account of the principle recalled above.

The Committee is raising other matters in a request addressed directly to the Government.

The Committee hopes that the Government will make every effort to take the necessary action in the near future.

Direct Request (CEACR) - adopted 2013, published 103rd ILC session (2014)

Article 3 of the Convention. In its previous comments the Committee asked the Government to take the necessary steps to amend section 11 of Order No. 12/CVAB.MIN/TPS/113/2005 of 26 October 2005, which prohibits striking workers from entering and remaining on work premises affected by the strike. The Committee notes that the Government does not supply any information in this regard.

Moreover, the Committee asked the Government to adopt measures relating to section 326 of the Labour Code and suggested including an additional provision stipulating that penalties against strikers must be proportionate to the offence committed and that no prison sentence shall be imposed unless criminal or violent acts have been committed. The Committee notes the Government’s indication that the amendment of section 326 of the Labour Code as recommended is being approved and will be implemented as part of the revision of the Code.

Furthermore, the Committee notes the Government’s agreement to amend section 28 of Act No. 016/2002 concerning the establishment, organization and functioning of labour tribunals so as to allow recourse to the labour tribunal, should conciliation and mediation procedures have been exhausted, only on the basis of a voluntary decision of the parties to the dispute.

Article 4. The Committee notes the Government’s agreement to amend section 251 of the Labour Code to ensure that the issue of the dissolution of trade union organizations will be regulated by their union constitutions and rules. The Government indicates that the amendment will be undertaken as part of the revision of the Labour Code.

Duly noting the Government’s willingness to amend certain provisions of the Labour Code and of Act No. 016/2002 (concerning the establishment, organization and functioning of labour tribunals) as referred to above in order to bring them into line with the Convention, the Committee trusts that the Government will take the corresponding measures in the very near future. The Committee also requests the Government to indicate the measures taken or contemplated for amending section 11 of Order No. 12/CVAB.MIN/TPS/113/2005 of 26 October 2005.

Lastly, the Committee again requests the Government to send its observations regarding the results of the trade union elections, published via Order No. 0038/CAB/PVPM/ETPS/2010 of 30 August 2010, which were contested by the National Union of Congolese Workers (UNTC) and the Democratic Confederation of Labour (CDT).

Observation (CEACR) - adopted 2013, published 103rd ILC session (2014)

The Committee notes the comments dated 30 August 2013 from the International Trade Union Confederation (ITUC) concerning the application of the Convention, particularly those reporting acts of interference during the 2013 trade union elections in the education sector. The Committee requests the Government to send its observations on this matter.

Articles 2 and 5 of the Convention. Right to organize in the public service. In its previous comments, the Committee asked the Government to take the necessary steps to ensure that the reform of the public administration and the revision of the conditions of service of career members of the public service enable the guarantees enshrined in the Convention to be afforded to all state employees. The Committee notes the Government’s indication that the reform is still in progress but that the 2013 version of the draft revised conditions of service of career members of the public service has just been approved by the general secretaries of the public administration and will shortly be submitted to Parliament for adoption. The Committee firmly trusts that the Government will provide information in its next report on the adoption of new conditions of service of career members of the public service which secure the rights laid down in the Convention to all state employees.

Furthermore, the Committee previously asked the Government to specify the instrument that safeguards the trade union rights of magistrates. The Committee notes that the Government reiterates that the freedom of association of magistrates is recognized under the provisional Order of 1996 and that magistrates’ trade unions exist. The Committee hopes that, as part of the reform of the public administration, provisions will be adopted that explicitly secure to magistrates the rights laid down in the Convention.

Article 3. Right of foreign workers to hold trade union office. The Committee previously asked the Government to amend section 241 of the Labour Code, which requires a 20-year residence period as a condition of eligibility for a person to be entrusted with the administration and management of a trade union organization. The Committee notes the indication that the matter was discussed at the 30th meeting of the National Labour Council and that on this occasion the tripartite constituents did not approve the Committee’s recommendations. Recalling that national legislation should allow foreign workers to take up trade union office, at least after a reasonable period of residence in the host country (see 2012 General Survey on the fundamental Conventions, paragraph 103), the Committee requests the Government to amend section 214 of the Labour Code taking account of the principle recalled above.

The Committee is raising other points in a request addressed directly to the Government.

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

The Committee notes with regret that the Government’s report does not reply to the points raised in its previous direct request, which read as follows:

Repetition

Article 3 of the Convention. The Committee noted that Order No. 12/CVAB.MIN/TPS/113/2005 of 26 October 2005 establishes the rights and obligations of parties during the suspension of the labour contract and in the event of a strike, of which a copy has been provided by the Government. The Committee noted that, under section 11 of this Order, workers on strike are forbidden to enter and remain in work premises affected by the strike. In this respect, the Committee wishes to draw the Government’s attention to the fact that restrictions on the occupation of premises by strikers should be limited to cases in which the strike ceases to be peaceful and when the freedom to work of non-strikers, as well as the right of the management of the enterprise to enter the premises, are infringed. The Committee requests the Government to take the necessary measures to amend section 11 of Order No. 12/CVAB.MIN/TPS/113/2005 of 26 October 2005, in accordance with the abovementioned principle.

In its previous comments, the Committee requested the Government to amend section 326 of the Labour Code, which provides that a fine and/or a sentence of penal servitude of a maximum of six months might be imposed on an individual who is in breach of the conditions established for the exercise of the right to strike. The Committee recalled that: (1) penal sanctions should be possible only where the strike prohibitions are in conformity with the principles of freedom of association; (2) all penalties in respect of actions linked to illegitimate strikes should be proportionate to the offence or fault committed; and (3) the authorities should not have recourse to measures of imprisonment of workers for the mere fact that they have organized or participated in a peaceful strike. The Committee takes due note of the Government’s proposed amendment to section 326 of the Labour Code, by adding the principles that it listed above. Nonetheless, the Committee recalls that the application of disproportional penal sanctions does not favour the development of harmonious and stable industrial relations and that, if measures of imprisonment are to be imposed at all, they should be justified by the seriousness of the offences committed (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 177). The Committee suggests including an additional provision stipulating that penalties against strikers must be proportionate to the offence committed and that no prison sentence shall be imposed unless criminal or violent acts have been committed. The Government is requested to indicate any developments in the amendment of section 326 of the Labour Code on the lines suggested above.

Furthermore, the Committee recalled its previous comments concerning recourse to the labour tribunal in the event of a strike. The Committee pointed out that: (1) section 304 of the Labour Code and section 27 of Act No. 016/2002 concerning the establishment, organization and functioning of labour tribunals provides that recourse is possible to the labour tribunal once the conciliation and mediation procedures have been exhausted; (2) under section 28(1) of Act No. 016/2002, once the strike notice period has expired, one of the parties might apply to the tribunal to rule on the collective labour dispute between them; (3) section 28(3) of the same Act provides that such referral to the tribunal should have the effect of suspending the strike or lockout. The Committee noted the Government’s statement that labour tribunals have not yet been set up and that referral to the tribunal might only take place once the conciliation and mediation procedures instigated by one of the parties or the labour inspection services have been exhausted. The Committee recalls that arbitration to resolve a labour dispute must be voluntary on the part of both parties and not prevent recourse to strike action, with the exception of specific circumstances, such as the provision of essential services in the strict sense of the term. The Committee points out that arbitration which can be imposed at the request of one of the parties and the effect of which is binding is equivalent to compulsory arbitration, and that this is not in conformity with the principle of freedom of association (see General Survey, op. cit., paragraphs 256–257). The Committee requests the Government to take the necessary measures to amend section 28 of Act No. 016/2002 to ensure that referral to the labour tribunal, once the conciliation and mediation procedures have been exhausted, can only take place after a voluntary decision by both parties to the dispute.

In its previous comments, the Committee noted the bill to amend a number of provisions of the Labour Code, including section 241, which sets forth the conditions to be fulfilled by a person to be entrusted with the administration and management of a trade union organization. It nevertheless recalled that the proposed amendments had not taken into account the need to allow foreign workers to hold trade union office, at least after a reasonable period of residence in the host country. It indicated that the requirement of a 20-year residence period as a condition of eligibility, stipulated under section 241, was excessive and requested that this section be amended. The Committee noted the Government’s statement that it is considering replacing the 20-year residence period by the fact of holding of a permanent residence permit. The Committee requests the Government to provide information on the conditions required to obtain a permanent residence permit. It also asks the Government to indicate any steps it has taken to amend the condition of eligibility of foreign workers to hold trade union office.

Article 4. The Committee noted that, according to the Government, due note has been taken of the need to amend section 251 of the Labour Code to ensure that the dissolution of trade union organizations should be resolved by their statutes and rules. The Committee requests the Government to indicate any steps taken with a view to amending section 251 of the Labour Code to that effect.

The Committee urges the Government to take the necessary measures without delay to ensure that its legislation is in conformity with the Convention and reminds it that it may seek technical assistance from the Office on the above matters.

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

The Committee notes the comments of 4 August 2011 by the International Trade Union Confederation (ITUC) on the application of the Convention. In its previous comments, the Committee likewise noted the ITUC comments referring, among other matters, to the arrest of trade unionists and their torture and ill treatment while in custody and to acts of interference in trade union activities. The Committee requests the Government to send its observations without delay in reply to the ITUC’s comments.

Articles 2 and 5 of the Convention. In its previous comments the Committee noted that section 1 of the Labour Code excludes from the Code’s coverage magistrates, career officials in the state public services governed by the General Conditions of Service and career employees and officials of the state public services governed by specific conditions of services. It asked the Government to provide further information on the trade union rights of these categories of state employees. The Committee also noted that under section 56 of Act No. 81-003 of 17 July 1981 issuing the conditions of service of career members of state public services, public officials and employees were affiliated automatically to the then Union of Workers of Zaire (UNTZA). However, pending amendment of these conditions of service, the Ministry of the Public Service issued Order No. CAB.MIN/F.P./105/94 of 13 January 1994 issuing provisional regulations on trade union activities in the public administration, which was amended by Order No. CAB.MIN/F.P./0174/96 of 13 September 1996. The Committee noted the Government’s statement in its report that the reform of the public administration was still under way and that the draft revised conditions of service of career members of the state public services would shortly be submitted to Parliament. The Committee further noted the statement in the report that trade union pluralism was applied in the public administration and that the rights of public officials were protected by a joint committee composed of representatives of trade unions and the Government. The Committee notes that, in its report, the Government indicates that the revised conditions of service of career members of the state public services has still not been promulgated. In these circumstances, the Committee urges the Government: (i) to take the necessary steps to ensure that the reform of the public administration and the revision of the conditions of service of career members of the public services enable the guarantees set forth in the Convention to be enforced promptly for all state employees; and (ii) to indicate in its next report any new developments in this respect, including the repeal of section 56 of Act No. 81-003.

With regard to magistrates, the Committee noted in its previous comments that according to the Government, freedom of association is recognized for magistrates, that they are governed by special regulations and that there are unions in this sector. The Committee asked the Government in its next report to provide information on the instruments governing the special regulations and trade union rights of magistrates. The Committee notes that Basic Act No. 06/020 of 10 October 2006 issuing the magistrates’ regulations deals with the specific conditions of service. The Committee observes, however, that nothing in the abovementioned Act addresses the trade union rights of magistrates. It therefore once again asks the Government to indicate in its next report the instrument that safeguards the trade union rights of magistrates.

Article 3. In its previous observation the Committee requested the Government to take the necessary steps to facilitate the organization of trade union elections in various sectors and to provide specific information on the results of such elections. It noted the Government’s statement that by means of Circular No. 1 of 20 May 2008 it organized trade union elections for “enterprises and establishments of all kinds”, which were held between October 2008 and July 2009. The Committee notes that, according to the Government’s report, the results were published by Order No. 0038/CAB/PVPM/ETPS/2010 of 30 August 2010 pertaining to publication of the results of the trade union elections of the 2008–11 fifth edition organized in enterprises and establishments of all kinds for the 2010 13 term of office. The Committee further notes that, according to the ITUC, in September 2010 the National Union of Congolese Workers (UNTC) and the Democratic Confederation of Labour (CDT) contested the results of the union elections in the private sector. The Committee requests the Government in its next report to include its observations on the challenge to the union elections by the UNTC and the CDT.

The Committee is raising other points in a request addressed directly to the Government.

Direct Request (CEACR) - adopted 2010, published 100th ILC session (2011)

The Committee notes with regret that the Government’s report does not reply to the points raised in its previous direct request, which read as follows:

Article 3 of the Convention. The Committee had noted that Order No. 12/CVAB.MIN/TPS/113/2005 of 26 October 2005 establishes the rights and obligations of parties during the suspension of the labour contract and in the event of a strike, of which a copy has been provided by the Government. The Committee had noted that, under section 11 of this Order, workers on strike are forbidden to enter and remain in work premises affected by the strike. In this respect, the Committee wishes to draw the Government’s attention to the fact that restrictions on the occupation of premises by strikers should be limited to cases in which the strike ceases to be peaceful and when the freedom to work of non-strikers, as well as the right of the management of the enterprise to enter the premises, are infringed. The Committee requests the Government to take the necessary measures to amend section 11 of Order No. 12/CVAB.MIN/TPS/113/2005 of 26 October 2005, in accordance with the abovementioned principle.

In its previous comments, the Committee had requested the Government to amend section 326 of the Labour Code, which provides that a fine and/or a sentence of penal servitude of a maximum of six months might be imposed on an individual who is in breach of the conditions established for the exercise of the right to strike. The Committee had recalled that: (1) penal sanctions should be possible only where the strike prohibitions are in conformity with the principles of freedom of association; (2) all penalties in respect of actions linked to illegitimate strikes should be proportionate to the offence or fault committed; and (3) the authorities should not have recourse to measures of imprisonment of workers for the mere fact that they have organized or participated in a peaceful strike. The Committee takes due note of the Government’s proposed amendment to section 326 of the Labour Code, by adding the principles that it listed above. Nonetheless, the Committee recalls that the application of disproportional penal sanctions does not favour the development of harmonious and stable industrial relations and that, if measures of imprisonment are to be imposed at all, they should be justified by the seriousness of the offences committed (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 177). The Committee suggests including an additional provision stipulating that penalties against strikers must be proportionate to the offence committed and that no prison sentence shall be imposed unless criminal or violent acts have been committed. The Government is requested to indicate any developments in the amendment of section 326 of the Labour Code on the lines suggested above.

Furthermore, the Committee recalled its previous comments concerning recourse to the labour tribunal in the event of a strike. The Committee had pointed out that: (1) section 304 of the Labour Code and section 27 of Act No. 016/2002 concerning the establishment, organization and functioning of labour tribunals provides that recourse is possible to the labour tribunal once the conciliation and mediation procedures have been exhausted; (2) under section 28(1) of Act No. 016/2002, once the strike notice period has expired, one of the parties might apply to the tribunal to rule on the collective labour dispute between them; (3) section 28(3) of the same Act provides that such referral to the tribunal should have the effect of suspending the strike or lockout. The Committee had noted the Government’s statement that labour tribunals have not yet been set up and that referral to the tribunal might only take place once the conciliation and mediation procedures instigated by one of the parties or the labour inspection services have been exhausted. The Committee recalls that arbitration to resolve a labour dispute must be voluntary on the part of both parties and not prevent recourse to strike action, with the exception of specific circumstances, such as the provision of essential services in the strict sense of the term. The Committee points out that arbitration which can be imposed at the request of one of the parties and the effect of which is binding is equivalent to compulsory arbitration, and that this is not in conformity with the principle of freedom of association (see General Survey, op. cit., paragraphs 256 and 257). The Committee requests the Government to take the necessary measures to amend section 28 of Act No. 016/2002 to ensure that referral to the labour tribunal, once the conciliation and mediation procedures have been exhausted, can only take place after a voluntary decision by both parties to the dispute.

In its previous comments, the Committee had noted the bill to amend a number of provisions of the Labour Code, including section 241, which sets forth the conditions to be fulfilled by a person to be entrusted with the administration and management of a trade union organization. It had nevertheless recalled that the proposed amendments had not taken into account the need to allow foreign workers to hold trade union office, at least after a reasonable period of residence in the host country. It had indicated that the requirement of a 20-year residence period as a condition of eligibility, stipulated under section 241, was excessive and requested that this section be amended. The Committee had noted the Government’s statement that it is considering replacing the 20-year residence period by the fact of holding of a permanent residence permit. The Committee requests the Government to provide information on the conditions required to obtain a permanent residence permit. It also asks the Government to indicate any steps it has taken to amend the condition of eligibility of foreign workers to hold trade union office.

Article 4. The Committee had noted that, according to the Government, due note has been taken of the need to amend section 251 of the Labour Code to ensure that the dissolution of trade union organizations should be resolved by their statutes and rules. The Committee requests the Government to indicate any steps taken with a view to amending section 251 of the Labour Code to that effect.

The Committee urges the Government to take the necessary measures without delay to ensure that its legislation is in conformity with the Convention and reminds it that it may seek technical assistance from the Office on the above matters.

Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

The Committee notes the comments made by the International Trade Union Confederation (ITUC) on 24 August 2010 concerning the application of the Convention which mention the arrest of trade unionists, their torture and ill treatment during their detention and acts of interference in trade union activities. The Committee recalls that the arrest of trade unionists can create an atmosphere of intimidation and fear prejudicial to the normal development of trade union activities and emphasizes the importance of ensuring that trade unionists receive a fair trial in accordance with the principles enshrined in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. The Committee requests the Government to provide its observation in reply to the comments made by the ITUC without delay.

Articles 2 and 5 of the Convention. In its previous comments, the Committee noted that section 1 of the Labour Code excludes from its scope magistrates, career officials in the State public services governed by the general conditions of service and career employees and officials of the State public services governed by specific conditions of service. The Committee requested the Government to provide further information on the trade union rights of these categories of State employees. The Committee also noted that, under section 56 of Act No. 81-003 of 17 July 1981 issuing the conditions of service of career members of the State public services, public officials and employees were affiliated automatically to the then Union of Workers of Zaire (UNTZA). However, pending the amendment of these conditions of service, the Minister for the Public Service had issued Order No. CAB.MIN/F.P./105/94 of 13 January 1994 establishing provisional regulations concerning trade union activities within the public administration, amended by Order No. CAB.MIN/F.P./0174/96 of 13 September 1996. The Committee notes the Government’s indication in its report that the reform of the public administration is still under way and that the draft revised conditions of service of career members of the State public services will shortly be submitted to Parliament. The Committee further notes that the report indicates that trade union pluralism is effective within the public administration and that the rights of public officials are defended within the joint committee composed of representatives of trade unions and the Government. Finally, the Committee notes that the report indicates that the freedom of association of the magistrates governed by specific conditions of service is recognized and that there are trade unions in this sector. The Committee requests the Government to: (i) take the necessary measures to ensure that the reform of the public administration and the revision of the conditions of service of career members of the State public services allow, as soon as possible, all State employees to benefit from the guarantees provided under the Convention; (ii) indicate any developments in this regard in its next report, in particular the repeal of section 56 of Act No. 81‑003; and (iii) provide information in its next report on the instruments governing the special status and trade union rights of magistrates.

Article 3. In its previous comments, the Committee requested the Government to take the necessary measures to facilitate the organization of trade union elections in various branches of activity and to provide specific information on the results of these elections. The Committee notes the Government’s indication in its report that, by means of Circular No. 1 of 20 May 2008, it organized trade union elections for “enterprises and establishments of any kind”, which were held between October 2008 and July 2009. The Committee also notes that a tripartite committee is responsible for counting the votes and determining the most representative trade unions. The Committee recalls that the determination of the most representative trade union should always be based on objective and pre-established criteria so as to avoid any opportunity for partiality or abuse and that verification of the representative character of a union should be carried out by an independent and impartial body. Noting that more than one year has elapsed since the end of these elections, the Committee requests the Government to provide information in its next report on the results of this process.

The Committee raises other points in a request addressed directly to the Government.

Direct Request (CEACR) - adopted 2009, published 99th ILC session (2010)

The Committee notes that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

Article 3 of the Convention. The Committee had noted that Order No. 12/CVAB.MIN/TPS/113/2005 of 26 October 2005 establishes the rights and obligations of parties during the suspension of the labour contract and in the event of a strike, of which a copy has been provided by the Government. The Committee had noted that, under section 11 of this Order, workers on strike are forbidden to enter and remain in work premises affected by the strike. In this respect, the Committee wishes to draw the Government’s attention to the fact that restrictions on the occupation of premises by strikers should be limited to cases in which the strike ceases to be peaceful and when the freedom to work of non-strikers, as well as the right of the management of the enterprise to enter the premises, are infringed. The Committee requests the Government to take the necessary measures to amend section 11 of Order No. 12/CVAB.MIN/TPS/113/2005 of 26 October 2005, in accordance with the abovementioned principle.

In its previous comments, the Committee had requested the Government to amend section 326 of the Labour Code, which provides that a fine and/or a sentence of penal servitude of a maximum of six months might be imposed on an individual who is in breach of the conditions established for the exercise of the right to strike. The Committee had recalled that: (1) penal sanctions should be possible only where the strike prohibitions are in conformity with the principles of freedom of association; (2) all penalties in respect of actions linked to illegitimate strikes should be proportionate to the offence or fault committed; and (3) the authorities should not have recourse to measures of imprisonment of workers for the mere fact that they have organized or participated in a peaceful strike. The Committee takes due note of the Government’s proposed amendment to section 326 of the Labour Code, by adding the principles that it listed above. Nonetheless, the Committee recalls that the application of disproportional penal sanctions does not favour the development of harmonious and stable industrial relations and that, if measures of imprisonment are to be imposed at all, they should be justified by the seriousness of the offences committed (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 177). The Committee suggests including an additional provision stipulating that penalties against strikers must be proportionate to the offence committed and that no prison sentence shall be imposed unless criminal or violent acts have been committed. The Government is requested to indicate any developments in the amendment of section 326 of the Labour Code on the lines suggested above.

Furthermore, the Committee recalled its previous comments concerning recourse to the labour tribunal in the event of a strike. The Committee had pointed out that: (1) section 304 of the Labour Code and section 27 of Act No. 016/2002 concerning the establishment, organization and functioning of labour tribunals provides that recourse is possible to the labour tribunal once the conciliation and mediation procedures have been exhausted; (2) under section 28(1) of Act No. 016/2002, once the strike notice period has expired, one of the parties might apply to the tribunal to rule on the collective labour dispute between them; (3) section 28(3) of the same Act provides that such referral to the tribunal should have the effect of suspending the strike or lockout. The Committee had noted the Government’s statement that labour tribunals have not yet been set up and that referral to the tribunal might only take place once the conciliation and mediation procedures instigated by one of the parties or the labour inspection services have been exhausted. The Committee recalls that arbitration to resolve a labour dispute must be voluntary on the part of both parties and not prevent recourse to strike action, with the exception of specific circumstances, such as the provision of essential services in the strict sense of the term. The Committee points out that arbitration which can be imposed at the request of one of the parties and the effect of which is binding is equivalent to compulsory arbitration, and that this is not in conformity with the principle of freedom of association (see General Survey, op. cit., paragraphs 256 and 257). The Committee requests the Government to take the necessary measures to amend section 28 of Act No. 016/2002 to ensure that referral to the labour tribunal, once the conciliation and mediation procedures have been exhausted, can only take place after a voluntary decision by both parties to the dispute.

In its previous comments, the Committee had noted the bill to amend a number of provisions of the Labour Code, including section 241, which sets forth the conditions to be fulfilled by a person to be entrusted with the administration and management of a trade union organization. It had nevertheless recalled that the proposed amendments had not taken into account the need to allow foreign workers to hold trade union office, at least after a reasonable period of residence in the host country. It had indicated that the requirement of a 20-year residence period as a condition of eligibility, stipulated under section 241, was excessive and requested that this section be amended. The Committee had noted the Government’s statement that it is considering replacing the 20-year residence period by the fact of holding of a permanent residence permit. The Committee requests the Government to provide information on the conditions required to obtain a permanent residence permit. It also asks the Government to indicate any steps it has taken to amend the condition of eligibility of foreign workers to hold trade union office.

Article 4. The Committee had noted that, according to the Government, due note has been taken of the need to amend section 251 of the Labour Code to ensure that the dissolution of trade union organizations should be resolved by their statutes and rules. The Committee requests the Government to indicate any steps taken with a view to amending section 251 of the Labour Code to that effect.

Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

The Committee notes that the Government’s report has not been received. It must therefore repeat its previous observation which read as follows:

The Committee notes the observations from the International Trade Union Confederation (ITUC) concerning cases of violation of the Convention. The Government is requested to send comments in reply to the observations made by the ITUC.

Articles 2 and 5 of the Convention. In its previous comments, the Committee had noted that section 1 of the Labour Code excluded from its scope of application magistrates, career officials in the state public services governed by the general conditions of service, and career employees and officials of the state public services governed by specific conditions of service. The Committee had requested the Government to provide information on the trade union rights of these categories of state employees. The Committee had also noted that, by virtue of section 56 of Act No. 81-003 of 17 July 1981 issuing the conditions of service of career members of the state public services, public officials and employees were affiliated automatically to the then Union of Workers of Zaire (UNTZA). However, pending the amendment of these conditions of service, the Minister for the Public Service had issued Order No. CAB.MIN/F.P./105/94 of 13 January 1994 establishing provisional regulations respecting trade union activities within the public administration, amended by Order No. CAB.MIN/F.P./0174/96 of 13 September 1996. The Committee had noted that, according to the Government, the reform of the public administration was under way and that it will bring about a revision of the conditions of service of career members of the state public services. The Committee trusts that the reform of the public administration will allow, as soon as possible, all state employees to benefit from the guarantees provided under the Convention. It requests the Government to indicate any new developments in this respect, in particular the repeal of section 56 of Act No. 81‑003.

Article 3. The Committee had requested the Government to take the necessary measures to ensure that trade union elections were organized in various branches of activity and to provide specific information on the results of these elections. The Committee requests the Government to indicate any progress in the organization of trade union elections in other branches of activity and contain the results of these elections.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.

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

Article 3 of the Convention. The Committee takes note of Order No. 12/CVAB.MIN/TPS/113/2005 of 26 October 2005 establishing the rights and obligations of parties during the suspension of the labour contract and in the event of a strike, of which a copy has been provided by the Government. The Committee notes that, under section 11 of this Order, workers on strike are forbidden to enter and remain in work premises affected by the strike. In this respect, the Committee wishes to draw the Government’s attention to the fact that restrictions on the occupation of premises by strikers should be limited to cases in which the strike ceases to be peaceful and when the freedom to work of non-strikers, as well as the right of the management of the enterprise to enter the premises, are infringed. The Committee requests the Government to take the necessary measures to amend section 11 of Order No. 12/CVAB.MIN/
TPS/113/2005 of 26 October 2005, in accordance with the abovementioned principle.

In its previous comments, the Committee had requested the Government to amend section 326 of the Labour Code, which provides that a fine and/or a sentence of penal servitude of a maximum of six months might be imposed on an individual who is in breach of the conditions established for the exercise of the right to strike. The Committee had recalled that: (1) penal sanctions should be possible only where the strike prohibitions are in conformity with the principles of freedom of association; (2) all penalties in respect of actions linked to illegitimate strikes should be proportionate to the offence or fault committed; and (3) the authorities should not have recourse to measures of imprisonment of workers for the mere fact that they have organized or participated in a peaceful strike. The Committee takes due note of the Government’s proposed amendment to section 326 of the Labour Code, by adding the principles that it listed above. Nonetheless, the Committee recalls that the application of disproportional penal sanctions does not favour the development of harmonious and stable industrial relations and that, if measures of imprisonment are to be imposed at all, they should be justified by the seriousness of the offences committed (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 177). The Committee suggests including an additional provision stipulating that penalties against strikers must be proportionate to the offence committed and that no prison sentence shall be imposed unless criminal or violent acts have been committed. The Government is requested to indicate any developments in the amendment of section 326 of the Labour Code on the lines suggested above.

Furthermore, the Committee recalled its previous comments concerning recourse to the labour tribunal in the event of a strike. The Committee had pointed out that: (1) section 304 of the Labour Code and section 27 of Act No. 016/2002 concerning the establishment, organization and functioning of labour tribunals provides that recourse is possible to the labour tribunal once the conciliation and mediation procedures have been exhausted; (2) under section 28(1) of Act No. 016/2002, once the strike notice period has expired, one of the parties might apply to the tribunal to rule on the collective labour dispute between them; (3) section 28(3) of the same Act provides that such referral to the tribunal should have the effect of suspending the strike or lockout. The Committee notes the Government’s statement that labour tribunals have not yet been set up and that referral to the tribunal might only take place once the conciliation and mediation procedures instigated by one of the parties or the labour inspection services have been exhausted. The Committee recalls that arbitration to resolve a labour dispute must be voluntary on the part of both parties and not prevent recourse to strike action, with the exception of specific circumstances, such as the provision of essential services in the strict sense of the term. The Committee points out that arbitration which can be imposed at the request of one of the parties and the effect of which is binding is equivalent to compulsory arbitration, and that this is not in conformity with the principle of freedom of association (see General Survey, op. cit., paragraphs 256 and 257). The Committee requests the Government to take the necessary measures to amend section 28 of Act No. 016/2002 to ensure that referral to the labour tribunal, once the conciliation and mediation procedures have been exhausted, can only take place after a voluntary decision by both parties to the dispute.

In its previous comments, the Committee had noted the bill to amend a number of provisions of the Labour Code, including section 241, which sets forth the conditions to be fulfilled by a person to be entrusted with the administration and management of a trade union organization. It had nevertheless recalled that the proposed amendments had not taken into account the need to allow foreign workers to hold trade union office, at least after a reasonable period of residence in the host country. It had indicated that the requirement of a 20-year residence period as a condition of eligibility, stipulated under section 241, was excessive and requested that this section be amended. The Committee takes due note of the Government’s statement that it is considering replacing the 20-year residence period by the fact of holding of a permanent residence permit. The Committee requests the Government to provide information on the conditions required to obtain a permanent residence permit. It also asks the Government to indicate any steps it has taken to amend the condition of eligibility of foreign workers to hold trade union office.

Article 4. The Committee notes that, according to the Government, due note has been taken of the need to amend section 251 of the Labour Code to ensure that the dissolution of trade union organizations should be resolved by their statutes and rules. The Committee requests the Government to indicate any steps taken with a view to amending section 251 of the Labour Code to that effect.

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

The Committee had noted in its previous observation the comments from the International Trade Union Confederation (ITUC) on the serious obstruction of trade union activities in certain administrations and enterprises, and the comments from the Confederation of Trade Unions of Congo (CSC) relating to the arrest of trade unionists and threats towards trade union delegates, particularly in public enterprises. In its report, received in June 2008, the Government states that the cases denounced by the CSC took place during a period in which lawlessness and impunity reigned. The Government gives its assurance that such occurrences would not happen again. The Committee takes note of this statement, but recalls that a Government cannot turn away from the responsibility that events under a previous Government might have incurred. The new Government is responsible for any repercussions these events might have and it should take all the necessary measures to counter the consequences of the actions committed under the previous Government or system. To the extent in which it is incumbent upon the public authorities to maintain a social climate in which law prevails, it is important that investigations should be carried out on the anti-trade union actions to ensure that those responsible for such actions should be brought before the courts and punished in accordance with the law. The Committee hopes that the Government will spare no efforts to launch the necessary investigations on the alleged cases of anti-trade union actions against workers’ organizations and their representatives.

The Committee notes the observations from the ITUC dated 29 August 2008 concerning cases of violation of the Convention in 2007, in particular arrests and acts of violence against strikers. The Government is requested to send comments in reply to the observations made by the ITUC.

Articles 2 and 5 of the Convention. In its previous comments, the Committee had noted that section 1 of the Labour Code excluded from its scope of application magistrates, career officials in the state public services governed by the general conditions of service, and career employees and officials of the state public services governed by specific conditions of service. The Committee had requested the Government to provide information on the trade union rights of these categories of state employees. The Committee had also noted that, by virtue of section 56 of Act No. 81-003 of 17 July 1981 issuing the conditions of service of career members of the state public services, public officials and employees were affiliated automatically to the then Union of Workers of Zaire (UNTZA). However, pending the amendment of these conditions of service, the Minister for the Public Service had issued Order No. CAB.MIN/F.P./105/94 of 13 January 1994 establishing provisional regulations respecting trade union activities within the public administration, amended by Order No. CAB.MIN/F.P./0174/96 of 13 September 1996. The Committee notes that, according to the Government’s report, the reform of the public administration is under way and that it will bring about a revision of the conditions of service of career members of the state public services. The Committee trusts that the reform of the public administration will allow, as soon as possible, all state employees to benefit from the guarantees provided under the Convention. It requests the Government to indicate any new developments in this respect, in particular the repeal of section 56 of Act No. 81‑003.

Article 3. The Committee had requested the Government to take the necessary measures to ensure that trade union elections were organized in various branches of activity and to provide specific information on the results of these elections. In its report, the Government undertakes to do the necessary in this respect and to communicate information on the organization of trade union elections and the election results in the commerce sector. The Committee notes this information and trusts that the Government’s next report will indicate progress in the organization of trade union elections in other branches of activity and contain the results of these elections.

Direct Request (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee notes that the Government’s report has not been received. It is therefore bound to repeat the points contained in its previous direct request.

Article 3 of the Convention. 1. The Committee requested the Government to provide information on the possibilities enjoyed in practice by organizations to exercise their right to strike when manifesting their position in relation to the major social and economic trends of government policies. It also requested the Government to indicate whether a ministerial order had been adopted respecting arrangements for the exercise of the right to strike and, if so, to provide a copy. The Government indicated that Order No. 12/CVAB.MIN/TPS/113/2005 of 26 October 2005 establishes the rights and obligations of the parties during the suspension of the employment contract and in the event of a strike. The Committee requests the Government once again to provide the Office with a copy.

The Committee also requested the Government to amend section 326 of the Labour Code, which provides that a fine and/or a sentence of penal servitude of a maximum of six months may be imposed on an individual who is in breach of the conditions established for the exercise of the right to strike. The Government indicated that sanctions are envisaged for indicative and deterrent purposes and that excessive sanctions have never been imposed. The Committee recalls that: (1) penal sanctions should only be imposed as regards strikes where there are violations of strike prohibitions which are themselves in conformity with the principles of freedom of association; (2) all penalties in respect of actions linked to illegitimate strikes should be proportionate to the offence or fault committed; and (3) the authorities should not have recourse to measures of imprisonment for the mere fact of organizing or participating in a peaceful strike. The Committee urges the Government to amend section 326 of the Labour Code as indicated above.

2. In its previous comments, the Committee noted that: (1) section 304 of the Labour Code and section 27 of Act No. 016/2002 provide that, when the conciliation and mediation procedures have been exhausted, recourse is possible to the labour tribunal; (2) under section 28(1) of Act No. 016/2002, once the strike notice period has expired, one of the parties may apply to the tribunal to rule on the collective labour dispute between them; (3) section 28(3) of the same Act provides that such referral to the tribunal shall have the effect of suspending the strike or lockout; and (4) Act No. 016/2002 does not contain a precise provision specifying the effect of the rulings of the labour tribunal.

In this respect, the Committee recalled that it had requested the Government to provide information on the procedure for referring a case to the labour tribunals in the context of a collective labour dispute and on the effect of the resulting ruling. It also recalled that, in cases where arbitration is envisaged by the law to resolve a labour dispute, the arbitration must be voluntary and not prevent recourse to strike action, with the exception of certain specific circumstances, such as the provision of essential services. The Committee also recalled that arbitration which can be imposed at the request of one of the parties and the effect of which is binding is equivalent to compulsory arbitration and is not in conformity with the principle of freedom of association (see 1994 General Survey on freedom of association and collective bargaining, paragraphs 256–257). The Government provided information on conciliation and mediation procedures but has not supplied new information on the effect of an arbitration ruling. Accordingly, if it is confirmed that such a ruling is binding, the Committee requests the Government to amend Act No. 016/2002 so that compulsory arbitration is not permitted where it is a result of the will of only one of the parties.

3. In its previous comments, the Committee noted that section 241 of the Labour Code sets forth the conditions to be fulfilled by a person to be entrusted with the administration and management of a trade union organization and noted that certain conditions were not in conformity with the Convention. The Committee requests the Government: (1) to amend section 241(1) of the Labour Code to make the conditions more flexible regarding the nationality of persons holding administrative or managerial office in trade unions, particularly by providing instead for the completion of a residence period as a condition of eligibility; (2) to amend section 241(2)(a) of the Labour Code so as not to prevent persons who have been convicted of an offence or crime relating to their trade union activities from standing for office; and (3) to amend section 241(2)(e) of the Labour Code to allow persons sentenced to a term of penal servitude of three or more years for a common law offence to stand for office, after a certain period, as a member of the administration or management of a trade union.

The Committee noted the bill to amend certain provisions of the Labour Code, including section 241. However, it noted that the bill does not take all of the Committee’s comments into account. The bill provides that persons responsible for the administration and management of a trade union must be in possession of Congolese nationality or be of foreign nationality on condition that they have been resident in the Democratic Republic of the Congo for at least 20 years. Recalling that the national legislation should allow foreign workers to hold trade union office, at least after a reasonable period of residence in the host country, the Committee considers that the requirement of a 20-year residence period as a condition of eligibility is excessive and requests the Government once again to take measures to reduce it significantly. The Committee asks the Government to keep it informed with regard to the adoption of the bill referred to above.

Article 4. The Committee also noted that section 251 of the Labour Code provides that trade union organizations may be dissolved by right where two‑thirds of the members gathered in general assembly vote in favour of dissolution. The Government indicated that this provision merely reinforces section 240(9) of the Labour Code, establishing a threshold below which dissolution is not valid, and that this threshold was determined in agreement with the social partners. The Committee nevertheless considers that such matters should normally be resolved by the statutes and rules of trade union organizations and not by the law. It therefore requests the Government to adopt measures to amend section 251 of the Labour Code.

Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee notes that the Government’s report has not been received. It notes the comments from the International Trade Union Confederation (ITUC) dated 28 August and 4 September 2007 concerning, in particular, the obstruction of trade union activities in certain administrations and enterprises (ban on holding meetings, ban on access to installations, etc.) and repeating the allegations made by the International Confederation of Free Trade Unions (ICFTU, now ITUC) in 2006 concerning cases of abduction, torture, threats, intimidation and harassment against trade union leaders. In its previous comments, the Committee noted the allegations made by the Confederation of Trade Unions of Congo (CSC) also relating to the arrest of trade unionists and threats by the public authorities towards trade union delegates, particularly in public enterprises. The Committee recalls that a climate of violence in which the murder and disappearance of trade union leaders go unpunished constitutes a serious obstacle to the exercise of trade union rights and that such acts require that severe measures be taken by the authorities. The arrest and detention, even for short periods, of trade union leaders and members engaged in their legitimate trade union activities, without any charges being brought and without a warrant, constitute a grave violation of the principle of freedom of association (see General Survey of 1994 on freedom of association and collective bargaining, paragraphs 29 and 31).

Noting the seriousness of the allegations, the Committee trusts that the Government will give its full attention to the comments made by the ITUC and the ICFTU and urges it to send its observations on the matters raised. The Committee recalls that in its previous comments it emphasized the need to launch an investigation into the matters raised by the CSC in relation to the cases of arrest and detention.

Articles 2 and 5 of the Convention. In its previous comments, the Committee noted that section 1 of the Labour Code excludes from its scope of application magistrates, career officials in the state public services governed by the general conditions of service, and career employees and officials of the state public services governed by specific conditions of service. The Committee requested the Government to provide information on the laws and regulations governing magistrates and career employees and officials of the state public services governed by specific conditions of service so as to ascertain their rights relating to the establishment of organizations. It also asked the Government to provide information on the right to establish organizations of career employees in the state public services governed by the general conditions of service. The Committee recalls the Government’s indication that, by virtue of section 56 of Act No. 81‑003 of 17 July 1981 issuing the conditions of service of career members of the state public services, public officials and employees were affiliated automatically to the then Union of Workers of Zaire (UNTZA). Pending the amendment of these conditions of service, the Minister for the Public Service issued Order No. CAB.MIN/F.P./105/94 of 13 January 1994 issuing provisional regulations respecting trade union activities within the public administration. This Order was amended by Order No. CAB.MIN/F.P./0174/96 of 13 September 1996. The Committee once again requests the Government to supply copies of the Orders concerned and take the necessary steps to repeal section 56 of Act No. 81-003 and to ensure the conformity of the legislation with the provisions of the Convention.

Article 3. In its previous comments, the Committee requested the Government to reinstate trade union elections as soon as possible in enterprises and establishments of all types in the Democratic Republic of the Congo and to keep it informed of the measures adopted in this respect. The Committee noted that in April 2004 the Government organized an extraordinary session of the National Labour Council during which a recommendation was formulated calling for an order to be issued lifting the suspension of trade union elections, and that the Council adopted a number of texts, including one establishing the electoral schedule (Ministerial Order No. 12/CAB.MIN/TPS/055 of 12 October 2004). On the basis of this Order, trade union elections were held throughout the country between 1 February and 30 April 2005 and, in view of the high number of enterprises and establishments which did not organize elections, this period was extended until 31 July 2005. The results of the trade union elections were announced on 22 November 2005. However, the Committee noted that, according to the ICFTU, exemptions were granted to certain private communication enterprises, which therefore refused to organize elections. The Committee requests the Government to take steps to ensure that trade union elections are organized in the near future in the sectors referred to by the ICFTU or, if elections have been held, to provide specific information regarding the election results.

Direct Request (CEACR) - adopted 2006, published 96th ILC session (2007)

Article 3 of the Convention. 1. In its previous comments, the Committee requested the Government to provide information on the possibilities enjoyed in practice by organizations to exercise their right to strike when manifesting their position in relation to the major social and economic trends of government policies. It also requested the Government to indicate whether a ministerial order had been adopted respecting arrangements for the exercise of the right to strike and, if so, to provide a copy. The Committee notes the Government’s indication that Order No. 12/CVAB.MIN/TPS/113/2005 of 26 October 2005 establishes the rights and obligations of the parties during the suspension of the employment contract and in the event of a strike. The Committee notes that a copy of this text has not been received and requests the Government to provide the Office with a copy.

The Committee also requested the Government to amend section 326 of the Labour Code, which provides that a fine and/or a sentence of penal servitude of a maximum of six months may be imposed on an individual who is in breach of the conditions established for the exercise of the right to strike. The Committee notes that, according to the Government, sanctions are envisaged for indicative and deterrent purposes and that excessive sanctions have never been imposed. The Committee is, however, bound to recall that: (1) penal sanctions should only be imposed as regards strikes where there are violations of strike prohibitions which are themselves in conformity with the principles of freedom of association; (2) all penalties in respect of illegitimate actions linked to strikes should be proportionate to the offence or fault committed; and (3) the authorities should not have recourse to measures of imprisonment for the mere fact of organizing or participating in a peaceful strike. The Committee requests the Government to amend section 326 of the Labour Code as indicated above.

2. In its previous comments, the Committee noted that: (1) sections 304 of the Labour Code and 27 of Act No. 016/2002 provide that, when the conciliation and mediation procedures have been exhausted, recourse is possible to the labour tribunal; (2) under section 28(1) of Act No. 016/2002, the tribunal may, once the strike notice period has expired, be seized by one of the parties to rule on the collective labour dispute between them; (3) section 28(3) of the same Act provides that such referral to the tribunal shall have the effect of suspending the strike or lockout; and (4) Act No. 016/2002 does not contain a precise provision specifying the effect of the rulings of the labour tribunal.

In this respect, the Committee recalls that it requested the Government to provide information on the procedure for referring a case to the labour tribunals in the context of a collective labour dispute and on the effect of the resulting ruling. It also recalled that, in cases in which arbitration is envisaged by the law to resolve a labour dispute, the arbitration must be voluntary and not prevent recourse to strike action, with the exception of certain specific circumstances, such as the provision of essential services. The Committee also recalls that arbitration which can be imposed at the request of one of the parties and the effect of which is binding is equivalent to compulsory arbitration and is not in conformity with the principle of freedom of association (see General Survey of 1994 on freedom of association and collective bargaining, paragraphs 256 and 257). The Committee notes that the Government provides information in its report on conciliation and mediation procedures, but does not supply new information on the effect of an arbitration ruling. Accordingly, if it is confirmed that such a ruling is binding, the Committee requests the Government to amend Act No. 016/2002 so that compulsory arbitration is not permitted where it is a result of the will of only one of the parties.

3. In its previous comments, the Committee noted that section 241 of the Labour Code sets forth the conditions to be fulfilled by a person to be entrusted with the administration and management of a trade union organization and noted that certain conditions were not in conformity with the Convention. The Committee accordingly requests the Government: (1) to amend section 241(1) of the Labour Code to make the conditions more flexible regarding the nationality of persons holding administrative or managerial office in trade unions, particularly by providing instead for the completion of a period of residence as an eligibility condition; (2) to amend paragraph (a) of the second subsection of section 241 of the Labour Code so as not to prevent persons who have been convicted of an offence or crime relating to their trade union activities from standing for office; and (3) to amend paragraph (e) of the second subsection of section 241 of the Labour Code to allow persons convicted to a sentence of penal servitude equivalent to or in excess of three years for a common law offence to stand for office, after a certain period, as a member of the administration or management of a trade union.

The Committee notes the Bill to amend certain provisions of the Labour Code, including section 241. However, it notes that the Bill does not take into account all of the comments made by the Committee. The Bill provides that persons responsible for the administration and management of a trade union must be in possession of Congolese nationality or be of foreign nationality on condition that they have been resident in the Democratic Republic of the Congo for at least 20 years. Recalling that the national legislation should allow foreign workers to hold trade union office, at least after a reasonable period of residence in the host country, the Committee considers that the requirement of a period of residence of 20 years as a condition for eligibility is excessive and requests the Government to take measures to reduce it significantly. The Committee asks the Government to keep it informed of the adoption of the Bill referred to above.

Article 4. The Committee also noted that section 251 of the Labour Code provides that trade union organizations may be dissolved by right where two-thirds of the members gathered in general assembly vote in favour of dissolution. The Committee notes the Government’s indication in its report that this provision merely reinforces section 240(9) of the Labour Code, establishing a threshold below which dissolution is not valid and that this threshold was determined in agreement with the social partners. The Committee notes this information. The Committee nevertheless considers that such rules should normally be a matter to be resolved by the statutes and rules of trade union organizations and not by the law and it requests the Government to adopt measures to amend section 251 of the Labour Code.

Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee notes the information contained in the Government’s report.

It also notes the comments of the International Confederation of Free Trade Unions (ICFTU), dated 31 August 2006, reporting cases of kidnappings and torture, threats, intimidation and harassment against trade unions and other violations of trade union rights. The Committee notes the gravity of the incidents detailed in the information provided by the ICFTU and requests the Government to provide its comments on this subject.

In its previous comments, the Committee noted the allegations made by the Confederation of Trade Unions of Congo (CSC) also relating to the arrest of trade unionists and threats by the public authorities towards trade union delegates, particularly in public enterprises. The Committee notes that in its report the Government confines itself to indicating that measures have been taken so that such cases do not happen again. The Committee recalls that in its previous comments it emphasized the need to open an investigation into the issues raised by the CSC concerning the cases of arrest and detention. It urges the Government to keep it informed in this respect and once again draws the Government’s attention to the fact that the arrest and detention, even for short periods, of trade union leaders and members engaged in their legitimate trade union activities, without any charges being brought and without a warrant, constitute a grave violation of the principle of freedom of association (see General Survey of 1994  on freedom of association and collective bargaining, paragraph 31).

Articles 2 and 5 of the Convention. In its previous comments, the Committee noted that section 1 of the Labour Code excludes from its scope of application magistrates, career officials in the state public services governed by the general conditions of service, and career employees and officials of the state public services governed by specific conditions of service. The Committee requested the Government to provide information on the laws and regulations governing magistrates and career employees and officials of the state public services governed by specific conditions of service so as to ascertain their rights relating to the establishment of organizations. It also asked the Government to provide information on the right to establish organizations of career employees in the state public services governed by the general conditions of service. The Committee notes the Government’s indication in its report that, by virtue of section 56 of Act No. 81-003 of 17 July 1981 issuing the conditions of service of career members of the state public services, public officials and employees were affiliated automatically to the then UNTZA (Union of Workers of Zaire). While awaiting the amendment of these conditions of service, the Minister of the Public Service issued Order No. CAB.MIN/F.P./105/94 of 13 January 1994 issuing provisional regulations respecting trade union activities within the public administration. This Order was amended by Order No. CAB.MIN/F.P./0174/96 of 13 September 1996. The Committee notes this information. It requests the Government to provide it with copies of the orders referred to and to take the necessary measures to repeal section 56 of the above Act and to ensure the conformity of the legislation with the provisions of the Convention.

Article 3. In its previous comments, the Committee requested the Government to reinstate trade union elections as soon as possible in enterprises and establishments of all types in the Democratic Republic of the Congo and to keep it informed of the measures adopted in this respect. The Committee notes the Government’s indication in its report that in April 2004 it organized an extraordinary session of the National Labour Council during which a recommendation was formulated calling for an order to be issued lifting the suspension of trade union elections, and that the Council adopted a number of texts, including one establishing the electoral schedule (Ministerial Order No. 12/CAB.MIN/TPS/055 of 12 October 2004). The Committee notes that, based on this Order, trade union elections were held throughout the country between 1 February and 30 April 2005 and that, in view of the high number of enterprises and establishments which did not organize elections, this period was extended until 31 July 2005. The results of the trade union elections were announced on 22 November 2005. However, the Committee notes that, according to the ICFTU, exemptions were granted to certain private communication enterprises, which therefore refused to organize elections. The Committee requests the Government to take measures to ensure that trade union elections are organized in the near future in the sectors referred to by the ICFTU or, if elections were held, to provide specific information regarding the election results..

Direct Request (CEACR) - adopted 2005, published 95th ILC session (2006)

The Committee notes that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

The Committee notes Act No. 015/2002 of 16 October 2002 issuing the Labour Code and Act No. 016/2002 respecting the establishment, organization and operation of labour tribunals.

Article 2 of the Convention. The Committee notes that section 1 of the Labour Code excludes from its scope of application magistrates, career officials in the state public services governed by the general conditions of service, and career employees and officials of the state public services governed by specific conditions of service. The Committee recalls that employees of the public service, irrespective of their role, function and type of post, are covered by the Convention and should enjoy the right to form occupational organizations in the same way as other workers, with the exception of members of the armed forces and the police (see General Survey on freedom of association and collective bargaining, 1994, paragraphs 48, 49 and 55). The Committee therefore requests the Government to provide information in its next report on the laws and regulations governing magistrates and career employees and officials of the state public services governed by specific conditions of service so as to ascertain their rights relating to the establishment of organizations. The Committee also requests the Government to provide information on the right of career employees of the state public services governed by the general conditions of service to establish organizations.

Article 3. 1. The Committee notes that section 241 of the Labour Code sets forth the conditions to be fulfilled to be entrusted with the administration and management of a trade union organization. The first subsection lays down the obligation to be at least 21 years of age and to be a national of Congo; paragraph (a) of the second subsection excludes persons who, within the past three years, have been convicted to a sentence of penal servitude of three months, with the exception of press offences of a trade union nature; and paragraph (e) of the second subsection excludes persons who have been convicted for a common law violation to a sentence of penal servitude equal to or in excess of three years, and who have not been rehabilitated.

With regard to the first subsection of section 241, the Committee recalls that restrictions concerning nationality should not be unduly strict and that the legislation should allow foreign workers to take up trade union office, at least after a reasonable period of residence in the host country (see General Survey, op. cit., paragraph 118).

With regard to paragraph (a) of the second subsection of section 241, the Committee notes that the restriction on eligibility to trade union office does not apply to persons who have committed press offences of a trade union nature. However, the Committee observes that the wording of paragraph (a) could have the effect of preventing persons who have been convicted for other offences or crimes relating to their trade union activities, particularly respecting the right to strike from standing for office. The Committee also notes that the exclusion set out in paragraph (e) of the second subsection of section 241 does not establish any precise period following which persons convicted to a sentence of penal servitude equivalent to or in excess of three years for a common law crime could stand for office as members of the administration or management of a trade union. The Committee recalls that only convictions for acts the nature of which is such as to call into question the integrity of the person concerned and which constitute a verifiable risk for the exercise of trade union functions may provide grounds for disqualification from holding office in the management or representation of a trade union (see General Survey, op. cit., paragraph 120).

The Committee therefore requests the Government: (1) to amend section 241(1) of the Labour Code to make the conditions more flexible regarding the nationality of persons holding administrative or managerial office in trade unions, particularly by providing instead for the completion of a period of residence as an eligibility condition; and (2) to amend paragraph (a) of the second subsection of section 241 of the Labour Code so as not to prevent persons who have been convicted for an offence or crime relating to their trade union activities from standing for office; and finally (3) to amend paragraph (e) of the second subsection of section 241 of the Labour Code to allow persons convicted to a sentence of penal servitude equivalent to or in excess of three years for a common law offence to stand for office, after a certain period, as a member of the administration or management of a trade union.

2. In addition to article 42 of the transitional Constitution, which recognizes the right to strike, the Committee notes that section 315 of the Labour Code establishes a right to the collective stoppage of work in cases of collective labour disputes. The Committee also notes that section 315(4) provides that the procedures for the exercise of the right to strike and lockout are those established by order of the minister responsible for labour and social insurance. Finally, the Committee notes that section 326 of the Labour Code provides that a fine and/or a sentence of penal servitude of a maximum of six months may be imposed on an individual who is in breach of section 315.

The Committee recalls that organizations should be able to use strike action to support their position in relation to the Government’s major social and economic policies, particularly where they have a direct impact on their members (see General Survey, op. cit., paragraphs 165 and 166). The Committee also recalls that the application of disproportionate penal sanctions does not favour the development of harmonious and stable industrial relations and that, if measures of imprisonment are imposed, they should be justified by the seriousness of the offences committed and a right of appeal should exist in this respect (see General Survey, op. cit., paragraphs 176-178). The Committee therefore requests the Government to provide detailed information on the possibilities enjoyed in practice by organizations to exercise their right to strike when manifesting their position in relation to the major social and economic trends of government policies. It also requests the Government to indicate whether a ministerial order has been adopted respecting arrangements for the exercise of the right to strike and, if so, to provide a copy. The Committee further requests the Government to amend section 326 of the Labour Code so that excessive penalties may no longer be imposed.

3. The Committee notes that sections 304 of the Labour Code and 27 of Act No. 016/2002 provide that, when the conciliation and mediation procedures have been exhausted, recourse is possible to the labour tribunal. The Committee also notes that section 28(1) of Act No. 016/2002 provides that the tribunal may, once the strike notice period has expired, be seized by one of the parties to rule on the collective labour dispute between them. The Committee notes that section 28(3) of the same Act provides that such referral to the tribunal shall have the effect of suspending the strike or lockout. Finally, the Committee notes that Act No. 016/2002 does not contain a precise provision specifying the effect of the rulings of the labour tribunal.

In this respect, the Committee recalls that, in cases in which arbitration is envisaged by the law so as to resolve a labour dispute, the arbitration must be voluntary and not prevent recourse to strike action, with the exception of certain specific circumstances, such as the provision of essential services. The Committee also recalls that arbitration which can be imposed at the request of one of the parties and the effect of which is binding is equivalent to compulsory arbitration and is not in conformity with the principle of freedom of association (see General Survey, op. cit., paragraphs 256 and 257). The Committee therefore requests the Government to provide information on the procedure for referring a case to the labour tribunals in the context of a collective labour dispute and on the effect of the resulting ruling. If the effect of the ruling is binding, the Committee requests the Government to amend Act No. 016/2002 so as to take into account the above comments and refrain from allowing the imposition of compulsory arbitration.

Article 4. The Committee notes that section 251 of the Labour Code provides that trade union organizations may be dissolved by right where two-thirds of the members gathered in general assembly vote in favour of dissolution. The Committee considers that such rules should normally be a matter to be resolved by the statutes and rules of trade union organizations and not by the law. It therefore requests the Government to indicate the measures taken in this respect to amend section 251 of the Labour Code.

Observation (CEACR) - adopted 2005, published 95th ILC session (2006)

The Committee notes that the Government’s report has not been received. It must, therefore, repeat its previous observation which read as follows:

The Committee had noted the comments made by the World Confederation of Labour (WCL) and the Confederation of Trade Unions of Congo (CSC), on the application of the Convention.

In its comments, the WCL indicates that the Government has unilaterally suspended trade union elections in enterprises and establishments of all types in the Democratic Republic of the Congo.

The Committee recalls in this respect that the autonomy of organizations can be effectively guaranteed only if their members have the right to elect their representatives in full freedom. The public authorities should therefore refrain from any interference which might restrict the exercise of this right, whether as regards the holding of trade union elections, conditions of eligibility or the re election or removal of representatives (see General Survey on freedom of association and collective bargaining, 1994, paragraph 112). The Committee therefore requests the Government to reinstate trade union elections as soon as possible in enterprises and establishments of all types in the Democratic Republic of the Congo and to keep it informed of the measures adopted in this respect.

In its comments, the CSC indicates that flagrant violations of Convention No. 87 occur day after day, and take the form of the arrest of trade unionists and threats by the public authorities upon trade union delegates, particularly in public enterprises. The CSC refers in this respect to two cases of arrest and detention. The Committee recalls that the arrest and detention, even for short periods, of trade union leaders and members engaged in their legitimate trade union activities, without any charges being brought and without a warrant, constitute a grave violation of the principle of freedom of association (see General Survey, op. cit., paragraph 31). The Committee requests the Government to ensure that an investigation is opened into the matters raised by the CSC regarding the cases of arrest and detention and to keep it informed in this respect.

The Committee is also addressing a request directly to the Government on certain other matters.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.

Direct Request (CEACR) - adopted 2004, published 93rd ILC session (2005)

The Committee notes Act No. 015/2002 of 16 October 2002 issuing the Labour Code and Act No. 016/2002 respecting the establishment, organization and operation of labour tribunals, which were supplied by the Government.

Article 2 of the Convention. The Committee notes that section 1 of the Labour Code excludes from its scope of application magistrates, career officials in the state public services governed by the general conditions of service, and career employees and officials of the state public services governed by specific conditions of service. The Committee recalls that employees of the public service, irrespective of their role, function and type of post, are covered by the Convention and should enjoy the right to form occupational organizations in the same way as other workers, with the exception of members of the armed forces and the police (see General Survey on freedom of association and collective bargaining, 1994, paragraphs 48, 49 and 55). The Committee therefore requests the Government to provide information in its next report on the laws and regulations governing magistrates and career employees and officials of the state public services governed by specific conditions of service so as to ascertain their rights relating to the establishment of organizations. The Committee also requests the Government to provide information on the right of career employees of the state public services governed by the general conditions of service to establish organizations.

Article 3. 1. The Committee notes that section 241 of the Labour Code sets forth the conditions to be fulfilled to be entrusted with the administration and management of a trade union organization. The first subsection lays down the obligation to be at least 21 years of age and to be a national of Congo; paragraph (a) of the second subsection excludes persons who, within the past three years, have been convicted to a sentence of penal servitude of three months, with the exception of press offences of a trade union nature; and paragraph (e) of the second subsection excludes persons who have been convicted for a common law violation to a sentence of penal servitude equal to or in excess of three years, and who have not been rehabilitated.

With regard to the first subsection of section 241, the Committee recalls that restrictions concerning nationality should not be unduly strict and that the legislation should allow foreign workers to take up trade union office, at least after a reasonable period of residence in the host country (see General Survey, op. cit., paragraph 118).

With regard to paragraph (a) of the second subsection of section 241, the Committee notes that the restriction on eligibility to trade union office does not apply to persons who have committed press offences of a trade union nature. However, the Committee observes that the wording of paragraph (a) could have the effect of preventing persons who have been convicted for other offences or crimes relating to their trade union activities, particularly respecting the right to strike from standing for office. The Committee also notes that the exclusion set out in paragraph (e) of the second subsection of section 241 does not establish any precise period following which persons convicted to a sentence of penal servitude equivalent to or in excess of three years for a common law crime could stand for office as members of the administration or management of a trade union. The Committee recalls that only convictions for acts the nature of which is such as to call into question the integrity of the person concerned and which constitute a verifiable risk for the exercise of trade union functions may provide grounds for disqualification from holding office in the management or representation of a trade union (see General Survey, op. cit., paragraph 120).

The Committee therefore requests the Government: (1) to amend section 241(1) of the Labour Code to make the conditions more flexible regarding the nationality of persons holding administrative or managerial office in trade unions, particularly by providing instead for the completion of a period of residence as an eligibility condition; and (2) to amend paragraph (a) of the second subsection of section 241 of the Labour Code so as not to prevent persons who have been convicted for an offence or crime relating to their trade union activities from standing for office; and finally (3) to amend paragraph (e) of the second subsection of section 241 of the Labour Code to allow persons convicted to a sentence of penal servitude equivalent to or in excess of three years for a common law offence to stand for office, after a certain period, as a member of the administration or management of a trade union.

2. In addition to article 42 of the transitional Constitution, which recognizes the right to strike, the Committee notes that section 315 of the Labour Code establishes a right to the collective stoppage of work in cases of collective labour disputes. The Committee also notes that section 315(4) provides that the procedures for the exercise of the right to strike and lockout are those established by order of the minister responsible for labour and social insurance. Finally, the Committee notes that section 326 of the Labour Code provides that a fine and/or a sentence of penal servitude of a maximum of six months may be imposed on an individual who is in breach of section 315.

The Committee recalls that organizations should be able to use strike action to support their position in relation to the Government’s major social and economic policies, particularly where they have a direct impact on their members (see General Survey, op. cit., paragraphs 165 and 166). The Committee also recalls that the application of disproportionate penal sanctions does not favour the development of harmonious and stable industrial relations and that, if measures of imprisonment are imposed, they should be justified by the seriousness of the offences committed and a right of appeal should exist in this respect (see General Survey, op. cit., paragraphs 176-178). The Committee therefore requests the Government to provide detailed information on the possibilities enjoyed in practice by organizations to exercise their right to strike when manifesting their position in relation to the major social and economic trends of government policies. It also requests the Government to indicate whether a ministerial order has been adopted respecting arrangements for the exercise of the right to strike and, if so, to provide a copy. The Committee further requests the Government to amend section 326 of the Labour Code so that excessive penalties may no longer be imposed.

3. The Committee notes that sections 304 of the Labour Code and 27 of Act No. 016/2002 provide that, when the conciliation and mediation procedures have been exhausted, recourse is possible to the labour tribunal. The Committee also notes that section 28(1) of Act No. 016/2002 provides that the tribunal may, once the strike notice period has expired, be seized by one of the parties to rule on the collective labour dispute between them. The Committee notes that section 28(3) of the same Act provides that such referral to the tribunal shall have the effect of suspending the strike or lockout. Finally, the Committee notes that Act No. 016/2002 does not contain a precise provision specifying the effect of the rulings of the labour tribunal.

In this respect, the Committee recalls that, in cases in which arbitration is envisaged by the law so as to resolve a labour dispute, the arbitration must be voluntary and not prevent recourse to strike action, with the exception of certain specific circumstances, such as the provision of essential services. The Committee also recalls that arbitration which can be imposed at the request of one of the parties and the effect of which is binding is equivalent to compulsory arbitration and is not in conformity with the principle of freedom of association (see General Survey, op. cit., paragraphs 256 and 257). The Committee therefore requests the Government to provide information on the procedure for referring a case to the labour tribunals in the context of a collective labour dispute and on the effect of the resulting ruling. If the effect of the ruling is binding, the Committee requests the Government to amend Act No. 016/2002 so as to take into account the above comments and refrain from allowing the imposition of compulsory arbitration.

Article 4. The Committee notes that section 251 of the Labour Code provides that trade union organizations may be dissolved by right where two-thirds of the members gathered in general assembly vote in favour of dissolution. The Committee considers that such rules should normally be a matter to be resolved by the statutes and rules of trade union organizations and not by the law. It therefore requests the Government to indicate the measures taken in this respect to amend section 251 of the Labour Code.

Observation (CEACR) - adopted 2004, published 93rd ILC session (2005)

The Committee notes the information contained in the Government’s report. However, it notes that this report does not provide the observations requested by the Committee on the comments made by the Conscience of Workers and Farmers of the Congo (CTP), dated 10 July 2003, and the World Confederation of Labour (WCL), of 29 August 2003. The Committee also notes the comments on the application of the Convention made by the Confederation of Trade Unions of Congo (CSC), an affiliate of the WCL, dated 31 May 2004.

The Committee notes that the comments made by the CTP concern Convention No. 98. It will examine them on the occasion of its regular examination of Convention No. 98.

In its comments, the WCL indicates that the Government has unilaterally suspended trade union elections in enterprises and establishments of all types in the Democratic Republic of the Congo.

The Committee recalls in this respect that the autonomy of organizations can be effectively guaranteed only if their members have the right to elect their representatives in full freedom. The public authorities should therefore refrain from any interference which might restrict the exercise of this right, whether as regards the holding of trade union elections, conditions of eligibility or the re-election or removal of representatives (see General Survey on freedom of association and collective bargaining, 1994, paragraph 112). The Committee therefore requests the Government to reinstate trade union elections as soon as possible in enterprises and establishments of all types in the Democratic Republic of the Congo and to keep it informed of the measures adopted in this respect.

In its comments, the CSC indicates that flagrant violations of Convention No. 87 occur day after day, and take the form of the arrest of trade unionists and threats by the public authorities upon trade union delegates, particularly in public enterprises. The CSC refers in this respect to two cases of arrest and detention. The Committee recalls that the arrest and detention, even for short periods, of trade union leaders and members engaged in their legitimate trade union activities, without any charges being brought and without a warrant, constitute a grave violation of the principle of freedom of association (see General Survey, op. cit., paragraph 31). The Committee requests the Government to ensure that an investigation is opened into the matters raised by the CSC regarding the cases of arrest and detention and to keep it informed in this respect.

The Committee is also addressing a request directly to the Government on certain other matters.

Observation (CEACR) - adopted 2003, published 92nd ILC session (2004)

The Committee notes the comments of 10 July 2003 on the application of the Convention submitted by the Conscience of Workers and Farmers of the Congo (CTP), and the comments of 29 August 2003 submitted by the World Confederation of Labour (WCL). The Committee requests the Government to send its observations on the abovementioned comments with its first report due next year.