Report in which the committee requests to be kept informed of development - Report No 308, November 1997

Case No 1921 (Niger) - Complaint date: 29-MAR-97 - Closed

Allegations: Arrests for strike action, requisitioning orders in the case of strikes, dissolution of a trade union, restrictions on the right to collective bargaining in respect of salaries

1. 556. In its communication dated 29 March 1997, the Confederation of Workers' Trade Unions of Niger (USTN) presented a complaint for the violation of trade union rights against the Government of Niger. The Organization of African Trade Union Unity (OATUU) presented allegations relating to this case in a communication dated 16 April 1997.
2. 557. The Government sent its observations in communications dated 2 June, supplemented by communications dated 9 June and 1 September 1997.
3. 558. Niger has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98) and the Collective Bargaining Convention, 1981 (No. 154).

A. The complainants' allegations

1. 559. In its communication dated 29 March 1997, the USTN states that on 27 February 1997, the second and last day of the general strike that it had called, the Government adopted the following: an ordinance to amend the civil service regulations and instruments establishing a new salary scale for public officials. The new salary scale introduces substantial reductions to the salaries of officials who come under the state budget. Thus the Government unilaterally and on its own authority decided to reduce salaries, in violation of the provisions of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).
2. 560. The USTN called several strikes during the months of February and March 1997 to protest against the reduction in salaries and other measures, such as the privatization of state enterprises. On the occasion of these various instances of union action, for which due notice was given, the USTN made a number of claims which included the reimbursement of outstanding salaries, the timely payment of salaries, the repeal of the new salary scale and the revision of legislation governing strike action.
3. 561. Following a general strike held on 18 and 19 March, several strikers were arrested and imprisoned. On 21 March, in a new strike notice, the USTN denounced the systematic arrests that had been made, and demanded that workers arrested for strike action be released; it also reiterated its previous claims.
4. 562. The USTN alleges furthermore that on 20 March 1997 the Council of Ministers demanded the immediate return to work of customs officials. As a result of the disruption to work caused by the exercise of the right to strike in this sector, the Government decided to dissolve the National Trade Union of Customs Officials of Niger (SNAD).
5. 563. The USTN points out that the Act regulating strike action adopted by the Government considerably restricts the exercise of trade union rights, and more particularly the right to strike. It denounces recourse had to abusive requisitioning, despite provisions establishing a minimum service in vital and strategic state sectors.
6. 564. In its communication dated 16 April, the OATUU, reports the arrest and imprisonment of 22 trade union officials and members for strike action. These include the following trade union leaders: Maman Mansour, Assistant General Secretary of the USTN, Soumaila Mamoudou, member of the National Executive Board of the USTN, Issoufou Chaibou, Abdou Bagué, Maïga Akoua Tretou, all three members of the Executive Board of the Trade Union of Power Workers (SYNATREN).

B. The Government's reply

1. 565. In its communications dated 9 June and 1 September 1997, the Government explains that the factors leading to the revision of the salary scale were of a purely economic nature. In order to redress the economic situation, which has been deteriorating for ten years, structural adjustment programmes were concluded with the international financial and banking institutions, focusing primarily on budgetary savings through the reduction of wage costs, the restructuring of state enterprises and other measures. The Government has made every effort to involve the social partners in deliberations on the major guidelines relating to policy and to economic and social development. To this end it has set up bodies for dialogue and consultation, such as the interministerial committee responsible for negotiating with the social partners, which is comprised of government members and representatives of the occupational organizations. The 1997 Finance Act made provision for a 17 per cent reduction in the wage bill. The Government had the alternative of either reducing the workforce or of lowering the wage bill by reviewing the salary scale. Following unsuccessful meetings with the trade unions, it decided not to reduce the workforce, but to reduce salaries to a level compatible with state resources.
2. 566. As regards strike action, the Government refers in particular to action organized in the power sector by the National Electricity Company (NIGELEC). The prospect of restructuring NIGELEC was behind the work stoppages that took place in March 1997. The trade union SYNATREN called a collective work stoppage without notice or the provision of a minimum service. It gave instructions to certain agents to carry out acts of sabotage on electrical installations and networks. As a result, the whole of the country was without electricity for 48 hours. Section 17 of Ordinance No. 88-064 dated 22 December 1988, establishing the electricity code, provides that if the damage to work or production appliances, and to the transport or distribution of electricity is intentional, the applicable penalties are those stipulated in section 389 of the Penal Code, that is a term of imprisonment ranging from two months to ten years. The management of NIGELEC filed a complaint and initiated public action, and it is in this connection that certain trade union leaders were detained. The Government considers therefore that no workers were harassed as a result of their trade union activities or their participation in strike action in that sector.
3. 567. As regards the customs sector, the National Trade Union of Customs Officials (SNAD) called a work stoppage, without the provision of a minimum service, on 20 and 21 March 1997. The reasons given concerned the fact that the Government had not resolved an isolated dispute between customs officials and the military in one region of the country. The right to strike is guaranteed under the Constitution, the Labour Code and the civil service regulations. For public officials, the exercise of the right to strike is regulated by Ordinance No. 96-009 dated 21 March 1996, which sets the conditions for the exercise of the right by state and local officials, by Ordinance No. 96-010 dated 21 March 1996, which establishes a list of strategic and vital state services, and by Decree No. 96/.../PCSN/MFPT/E dated 21 March 1996, which stipulates the mode of enforcement of the above ordinances. These instruments were adopted following a long series of discussions in the framework of the joint consultative committee, comprised of USTN and government representatives. They make provision for a period of notice, negotiation prior to the actual calling of any strike, a minimum service and freedom to work for non-strikers. Furthermore, in the customs sector, under Decree No. 75-193-PCMS/MFPT/E dated 11 September 1975, which establishes special status for customs officials, only work to rule is recognized as a legitimate way for officials to defend their collective professional rights.
4. 568. According to the Government, in practice trade unions have taken to calling strikes first and negotiating later. Moreover, some trade unions systematically resort to wildcat strikes, i.e. giving no notice and with providing no minimum service. Requisitioning orders enable services to continue vital or strategic activities when faced with a refusal to provide a minimum service. Section 9 of Ordinance No. 96-009 dated 21 March 1996 stipulates that "in exceptional cases associated with the need to preserve general welfare, any state or local official may be requisitioned". The requisitioning of staff is carried out to counter the refusal of some trade union organizations to provide a minimum service.
5. 569. On 9 June 1997, the Government sent a number of documents, including the decision dated 14 April 1997 handed down in the case of the Public Ministry against Adamou Boukari et al. This document gives a ruling on the persons arrested under a committal order on 28 March 1997. It finds Mr. Abdou Bagué and Mr. Rabiou Mahamadou Armayaou guilty of the offence of the destruction and sabotage of public buildings and of complicity and sentences them to two years' imprisonment and a fine of 100,000 francs. It finds Mr. Boukar Abba Gana and Mr. Maman Boukari guilty of the offence of refusal to provide a legally required service and sentences them to two months' imprisonment and a fine of 10,000 francs. It releases the other persons, due to a lack of established facts, namely: Messrs. Adamou Boukari, Issoufou Chérif Chaibou, Adamou Idé, Ousmane Mahaman, Ibrahim Tahirou, Abdoul Modagara, Boubacar Soumana, Elh. Mahaman Bâ, Maman Souley, Boubacar Moussa, Abdou Abdoulaye, Mani Ousmane Abdou, Seydou Hamidou, Hassane Garba, Soumaila Mamadou and Elh. Ramane Mansour.

C. The Committee's conclusions

1. 570. The Committee observes that in this case the USTN is denouncing the Government's adoption of a new salary scale for public officials which substantially reduces their salaries. The Committee notes that the USTN and the OATUU raise the arrest and imprisonment of trade union officials and members for strike action. The Committee also notes the USTN's denunciation of, firstly, the dissolution of the National Trade Union of Customs Officials of Niger (SNAD) following the exercise of the right to strike in this sector and, secondly, the Government's recourse to abusive requisitioning during the strike in vital and strategic state sectors.
2. 571. With respect to the allegations relating to the unilateral adoption by the Government of a new salary scale for public officials, the Committee notes the Government's statements that the priority goal for the public authorities was to redress the economic situation and that structural adjustment programmes were concluded with the international financial and banking institutions with this objective in mind. The Committee also notes that, according to the Government, it was after a number of unsuccessful meetings with the social partners that it decided to reduce salaries to a level compatible with state resources. In this respect, the Committee, while taking full account of the serious financial and budgetary difficulties facing governments, particularly during periods of prolonged and widespread economic stagnation, considers however that the authorities should give preference as far as possible to collective bargaining in determining the conditions of employment of public servants. The Committee considers that it is essential that workers and their organizations be able to participate fully and meaningfully in designing this overall bargaining framework, which implies in particular that they must have access to all the financial, budgetary and other data enabling them to assess the situation on the basis of the facts. Where the circumstances rule this out, measures of this kind should be limited in time and protect the standard of living of the workers who are the most affected. In other words, a fair and reasonable compromise should be sought between the need to preserve as far as possible the autonomy of the parties to bargaining, on the one hand, and measures which must be taken by governments to overcome their budgetary difficulties, on the other (see Digest of decisions and principles of the Freedom of Association Committee,4th edition, 1996, para. 899).
3. 572. As regards the allegations concerning the dissolution of the National Trade Union of Customs Officials of Niger (SNAD) following the exercise of the right to strike in this sector, the Committee notes that under Decree No. 75-193-PCMS/MFPT/E dated 11 September 1975, which establishes special status for customs officials, only work to rule is recognized as a legitimate means for officials to defend their collective professional rights. In this connection the Committee recalls that where the right to strike is restricted or prohibited in certain essential services, adequate protection should be given to the workers to compensate for the limitation thereby placed on their freedom of action with regard to disputes affecting such services. As regards the nature of appropriate guarantees in cases where restrictions are placed on the right to strike, these restrictions on the right to strike should be accompanied by adequate, impartial and speedy conciliation and arbitration proceedings in which the parties concerned can take part at every stage and in which the awards, once made, are fully and promptly implemented (see Digest, op. cit., paras. 546 and 547). In this case, the Government explains its position by the fact that the customs workers' union called a 48-hour work stoppage for its members without the provision of a minimum service. The Committee recalls that the establishment of minimum services in the case of strike action should only be possible in services the interruption of which would endanger the life, personal safety or health of the whole or part of the population, or in services which are not essential in the strict sense of the term but where the extent and duration of a strike might be such as to result in an acute national crisis endangering the normal living conditions of the population and, lastly, in public services of fundamental importance (see Digest, op. cit., para. 556). Although it appears that the customs sector could be subject to certain restrictions to the right to strike, such as the giving of notice or the provision of a minimum service, the Committee considers that the dissolution of trade union organizations is a measure which should only occur in extremely serious cases and that such dissolution should only happen following a judicial decision so that the rights of defence are fully guaranteed (see Digest, op. cit., paras. 666 and 673). The Committee strongly deplores the dissolution of the SNAD and is of the firm conviction that the solution to the economic and social problems confronting a country does not lie in isolating trade union organizations and suspending their activities. The Committee urges the Government to nullify the dissolution and to restore the rights of the SNAD.
4. 573. With regard to the allegations of the arrest and imprisonment of USTN and SYNATREN trade union officials and members for strike action, the Committee notes first that, according to the Government, SYNATREN had called a 48-hour collective work stoppage without giving notice or providing a minimum service and that it had instructed certain agents to cause damage to and carry out acts of sabotage on electrical installations and networks. The Committee has already stated that the right to strike may be restricted in essential services such as electricity services, where strike action could prove extremely prejudicial for the national population, as long as these restrictions are accompanied by certain compensatory guarantees (see Digest, op. cit., para. 533). In this connection, the requirement that minimum services be established in the case of strike action in the electricity services would appear to be justified. However, the Committee recalls that it is important for provisions regarding the minimum service to be maintained in the event of a strike in an essential service to be established clearly, to be applied strictly and to be made known to those concerned in due time (see Digest, op. cit., para. 559).
5. 574. Secondly, on the matter of the alleged acts of damage and sabotage to electrical installations and networks, the Committee recalls that persons engaged in trade union activities or holding trade union office cannot claim immunity in respect of the ordinary criminal law. However, the Committee stresses the fact that the arrest and detention of trade union leaders or members for reasons connected with their activities in defence of the interests of workers constitute a serious violation of the principles of freedom of association (see Digest, op. cit., paras. 71 and 83). In this connection, the Committee notes the release of a number of trade unionists following the decision handed down on 14 April relating to the arrests which followed the strike action in March 1997. It expresses the firm hope that all the trade unionists detained as a result of their trade union activities or their participation in the recent strikes will be released. The Committee also requests the Government to keep it informed about the trade unionists in question and about the measures taken to secure their release.
6. 575. As regards the allegations of recourse to the abusive requisitioning of staff during the periods of strike, the Committee notes that for public officials the exercise of the right to strike is regulated by Ordinance No. 96-009, dated 21 March 1996, article 9 of which provides that in vital and/or strategic public services, a minimum service must be established by common accord between the authorities and the trade union organizations. Article 9 also provides that in exceptional cases required in the public interest, any state or local official can be requisitioned. The Committee considers that the scope of this provision should extend only to those cases where a work stoppage could result in a state of acute national emergency as well as to essential services in the strict sense of the term. The Committee recalls that the use of requisitioning orders to break a strike over occupational claims, unless these actions aim at maintaining essential services in circumstances of the utmost gravity, constitutes a serious violation of freedom of association (see Digest, op. cit., para. 573). The Committee requests the Government to take the necessary measures to amend its legislation accordingly. It also draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to the legislative aspect of this case.

The Committee's recommendations

1. 576. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) As regards the Government's adoption of a new salary scale for public officials, the Committee requests the Government to give preference as far as possible to collective bargaining in determining the conditions of employment of public servants.
   • (b) As regards the dissolution of the National Trade Union of Customs Officials of Niger (SNAD), the Committee strongly deplores this dissolution and reminds the Government that the solution to the economic and social problems confronting Niger does not lie in isolating the trade union organizations and suspending their activities. The Committee urges the Government to nullify the dissolution and to restore the rights of the SNAD.
   • (c) As regards the arrest and imprisonment of USTN and SYNATREN trade union officials and members for strike action, the Committee, while noting the release of some of the trade unionists, emphatically requests the Government to ensure that all trade unionists detained as a result of their trade union activities or their participation in the recent strikes are released. The Committee also requests the Government to keep it informed about the trade unionists in question and about the measures taken to secure their release.
   • (d) As regards the recourse to abusive requisitioning of staff during the periods of strike, the Committee requests the Government to take the necessary measures to amend its legislation in this area. The Committee draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to the legislative aspect of this case.