Report in which the committee requests to be kept informed of development - Report No 335, November 2004

Case No 2276 (Burundi) - Complaint date: 30-MAY-03 - Closed

Allegations: Refusal to recognize the elected chairman of COSYBU; unjustified and anti-union dismissal; interference in the internal affairs of the organization; excessive legislative restrictions regarding the registration and workings of trade unions, trade union activities and the right to strike

1. 389. The complaint appears in a communication from the Trade Union Confederation of Burundi (COSYBU) dated 30 May 2003.
2. 390. The Government sent its observations in a communication dated 5 May 2004.
3. 391. Burundi 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 Workers’ Representatives Convention, 1971 (No. 135), but not the Labour Relations (Public Service) Convention, 1978 (No. 151).

A. The complainant’s allegations

1. 392. In a communication dated 30 May 2003, COSYBU alleges that the Government of Burundi refuses to recognize Dr. Pierre Claver Hajayandi, the democratically elected chairman of the organization, and has dismissed him from his post for anti-union motives; moreover, the Government nominates workers’ representatives to sit on the governing bodies of tripartite institutions, as well as the International Labour Conference, without taking into account the candidates chosen by COSYBU, the most representative workers’ organization. COSYBU also claims that, without any prior tripartite consultation taking place, the Government adopted Law No. 1/015 of 29 November 2002, regulating the exercise of the right to organize and the right to strike in the public service, which entails several violations of the freedom of association.
2. 393. Concerning the case of Dr. Hajayandi, COSYBU states that he was properly elected along with a new executive on 29 April 2000, during an extraordinary congress convened against a background of wide social unrest brought about by a general rise in the prices of basic goods and services, during which the former chairman of COSYBU (Mr. Niyongabo) had retired from the organization “for personal reasons” three days before a general strike began. The Government has been openly hostile towards Dr. Hajayandi since 1 May 2000, continuing to maintain Mr. Niyongabo as the head of COSYBU and nominating him to represent the country’s workers at the 89th and 90th Sessions of the International Labour Conference. In 2003, the Government yet again ignored the candidate chosen by COSYBU’s executive for the Conference (Dr. Hajayandi), sending the vice-chairman in his place. It was only after the departure of President Buyoya in April 2003 that Dr. Hajayandi was able officially to represent the workers at the May Day celebrations and at the International Labour Conference.
3. 394. Dr. Hajayandi was dismissed from his post on 29 May 2000, 30 days after being elected onto the executive of COSYBU. The relevant dossier shows that there existed no valid reason for such a serious course of action: only the administration’s determination to exclude him from the trade union movement could explain this decision. COSYBU requests that Dr. Hajayandi be reinstated.
4. 395. COSYBU also alleges that the activities of the National Labour Council were halted from 27 March 2000 to 19 May 2003, as the Minister refused to nominate the representatives chosen by the workers to participate in the work of the Council. The situation was resolved with the coming to power of the present Government; the Council met twice since the complaint was lodged. However, the situation remains unchanged with regard to the nomination of workers’ representatives to tripartite institutions, in accordance with the choice made by the most representative organization. COSYBU requests that this situation be put in order.
5. 396. As to Law No. 1/015 of 29 November 2002, regulating the right to organize and the right to strike in the public service, COSYBU considers that it constitutes an obstacle to the creation of workers’ organizations; it restricts the freedom of action of public employees’ representatives; allows for interference in the running and workings of trade unions in general and in that of the public service; gives licence to discrimination against trade union members for having participated in trade union activities; restricts the right to organize and the right to hold trade union meetings, as well as the right to strike. COSYBU stresses that no process of consultation was ever entered into with the social partners.
6. 397. Along with the complaint, COSYBU encloses a substantial number of documents and pieces of evidence supporting its allegations.

B. The Government’s reply

1. 398. In a communication dated 5 May 2004, the Government states that Dr. Hajayandi is currently the recognized chairman of COSYBU. He attended the 2003 and 2004 May Day celebrations in this capacity and was a member of the tripartite delegation of Burundi at the 2003 International Labour Conference. The issue of the organization’s leadership has now been resolved and the Government is surprised at the allegations since relations with COSYBU have been normalized.
2. 399. Dr. Hajayandi has lodged a complaint with the courts against what his employer consider to be his legal dismissal. The case is under review and the Government will ensure that the eventual ruling is carried out.
3. 400. The Government respects the choice of the workers in tripartite institutions, as made by the most representative organization; it undertakes to rectify any mistakes that might have been made.
4. 401. Regarding Law No. 1/015 of 29 November 2002, the Government states that the trade unions were involved in its elaboration, as can be seen from the minutes of the meetings (which are not, however, enclosed with the communication). The law forbids sympathy strikes as they can seriously compromise the life, health and safety of the public. The amendment of article 14 of the Labour Code, allowing for the registration and supervision of public sector trade unions, is to be discussed by the parties concerned; in any event, those trade unions belonging to that sector which have already been registered by the Ministry of Labour were so registered in violation of article 14 of the Code; moreover, article 14 of Law No. 1/015 gives trade unions a right of recourse to the Administrative Chamber of the Supreme Court in case of refusal of registration by the Minister of Public Services. Finally, despite the repeal of article 29 of the Statutes of Public Employees, the right to strike remains enshrined in Law No. 1/015 of 29 November 2002.

C. The Committee’s conclusions

1. 402. The Committee notes that the allegations in the present complaint concern: (a) government interference in the internal activities of COSYBU and the refusal to recognize Dr. Hajayandi as chairman of that organization; (b) the Government’s refusal to respect the choices made by the most representative organization regarding the nomination of workers to tripartite institutions; (c) the dismissal of Dr. Hajayandi, considered by the complainant organization to be an unjust and anti-union act; and (d) excessive restrictions on freedom of association brought about by Law No. 1/015 of 29 November 2002, regulating the exercise of the right to organize and the right to strike in the public service.
2. 403. As to the first set of allegations, the Committee notes that they now seem to be a thing of the past. The documents provided in support of the complaint show that during 1999-2000 there was a great deal of inter-trade union rivalry within COSYBU and a sense of uncertainty surrounding the Chair, which the extraordinary congress of 29 April 2000 was supposed to resolve. The Ministry of Labour tried to ascertain that the former chairman of COSYBU, Mr. Niyongabo, had been discharged according to normal procedure (letter dated 10 February 2000) and continued to recognize him as chairman for a certain period (Ruling No. 570/400/CAB/2000 dated 10 May 2000). Dr. Hajayandi was prevented from actively participating in the May Day celebrations in his capacity as chairman of COSYBU. Subsequently there have been some developments. After a meeting held on 8 January 2002 under the aegis of the Minister of Labour, when those trade union representatives present (with the exception of Mr. Niyongabo) confirmed Dr. Hajayandi in his post, the Minister wrote to Dr. Hajayandi in his capacity as chairman of COSYBU, on 24 January 2002, informing him that he would assess “… over the next six months, the outcome of [your] efforts to deal with the after-effects of the leadership crisis within the executive of COSYBU and affiliated trade union organizations”. Despite some initial difficulties, notably giving rise to an appeal to the Credentials Committee of the International Labour Conference, Dr. Hajayandi attended the 2003 and 2004 Conferences as a worker delegate. In both these years he also attended the May Day celebrations in Burundi in his capacity as chairman of COSYBU.
3. 404. Taking into account the initial difficulties experienced by Dr. Hajayandi and the new executive of COSYBU after their election in April 2000, the Committee recalls that it is up to workers’ organizations themselves to determine the conditions under which their trade union officials are elected, and that the authorities should refrain from any undue interference in the exercise of the right of workers’ and employers’ organizations to freely elect their representatives, which is guaranteed by Convention No. 87 [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 351], the fundamental idea of Article 3 of Convention No. 87 being that, workers and employers should decide for themselves the rules which govern the administration of their organizations and the elections which are held therein [see Digest, op. cit., para. 354]. Given the circumstances, the Committee feels that this matter has now been resolved and considers that this aspect of the case does not call for further examination.
4. 405. Regarding the alleged refusal by the Government to respect the choices made by the most representative organization when nominating workers in tripartite institutions, the Committee notes that, according to the complainant organization itself, the situation regarding the National Labour Council has been resolved; however, the complainant organization continues to insist that the situation within the other tripartite institutions be put in order. For its part, the Government states that it respects the choice of the workers within the tripartite institutions as made by the most representative organization, and undertakes to rectify any mistakes that might have been made. Taking note of this formal undertaking on the part of the Government and noting that Burundi has ratified the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144), the Committee recalls the importance that it attaches to the participation of workers’ and employers’ organizations on various joint and tripartite consultative bodies [see Digest, op. cit., para. 942-949]. The Committee expects the Government to take these principles fully into account with regard to the choice of workers’ representatives within these bodies.
5. 406. Regarding the dismissal of Dr. Hajayandi, the Committee notes that this action can be traced back to a letter sent on 24 March 2000 by Dr. Hajayandi to the Minister of Labour, in which, in his capacity as First Secretary of the Free Trade Union of Workers of the National Social Security Institute (SLT-INSS), he expressed the concerns of the workers and the trade union concerning anomalies in the composition and representativity of the governing body of the INNS, the latter being his employer at the time. He ended his letter saying: “… our main concern is that the INNS should have a reinvigorated governing body, no longer afflicted by the monopoly and the defects by which it has been characterized over the past few years”. The Director-General of the INSS, supported by the organization’s governing body, requested Dr. Hajayandi to provide further explanation (letter dated 12 May 2000) reminding him that he had previously been dismissed in October 1998 for “bad language”, although this decision had been commuted to a 15-day suspension. As his response was considered unsatisfactory, the Director-General of INSS decided to dismiss Dr. Hajayandi for gross misconduct, without compensation in lieu of notice or for dismissal, on 29 May 2000 (Ruling No. DG/2973/2000). This dismissal ruling also mentions the worsening working relations between the hierarchy and Dr. Hajayandi, as well as an unauthorized change in itinerary when Dr. Hajayandi was on mission in May 2000, but which he argues was necessary owing to the danger represented by rebel forces along the main road in question.
6. 407. Dr. Hajayandi has lodged an appeal against his dismissal. Amongst the numerous supporting documents submitted, the Committee notes in particular the “opinions and observations” of the Director of the Labour Inspectorate who, after having heard from the two parties, concluded that: “… the executive of the INSS does not make any distinction between Dr. Pierre Claver Hajayandi’s trade union and professional activities. Thus the executive refers to article 58 of the Labour Code to penalize Dr. Hajayandi, as though he was simply a worker employed by the INSS. The executive does not seem to recognize him as a trade union official even though he wrote to them [on 24 March] in his capacity as First Secretary of the INSSS trade union “… I believe that the complainant should be treated as a trade union official protected by article 282 of the Labour Code in the case of the first accusation levelled against him. In effect, this article states that trade union officials at all levels cannot have legal, administrative or other proceedings brought against them simply for correctly exercising the union rights accorded to them by law. I think that when considering the seriousness of the nature of his failure to fulfil his professional obligations, the strained relations between the First Secretary of the INSS workers’ trade union, Dr. Pierre Claver Hajayandi and the INSS authorities need to be taken into account” (minutes of non-conciliation meeting No. 29/2001, 14 June 2001).
7. 408. The Committee notes the opinion of the Director of the Labour Inspectorate, the competent body in this instance, who decided in favour of the complainant, taking into account the distinctions necessary due to his dual status, and having familiarized himself with all the facts and evidence, as well as having heard from the two parties. In this respect, the Committee recalls that although holders of trade union office do not, by virtue of their position, have the right to transgress legal provisions in force, these provisions should not infringe the basic guarantees of freedom of association, nor should they sanction activities which, in accordance with the principles of freedom of association, should be considered as legitimate trade union activities [see Digest, op. cit., para. 726]. The documents submitted indicate that the communication for which the complainant was sanctioned fell within the category of normal trade union activities.
8. 409. Moreover, the Committee draws attention to Convention No. 135, ratified by Burundi, and Recommendation No. 143 concerning workers’ representatives, in which it is expressly established that workers’ representatives should enjoy effective protection against any act prejudicial to them, including dismissal, based on their status or activities as workers’ representatives or on participation in union activities in so far as they act in conformity with existing laws, Conventions, collective agreements or other jointly agreed arrangements [see Digest, op. cit., para. 732]. Noting that the appeal lodged by Dr. Hajayandi is pending, the Committee trusts that, given the abovementioned principles and the circumstances of this case, including the advice given by the Director of the Labour Inspectorate, Dr. Hajayandi will be reinstated in his functions without loss of pay. If, however, the competent court were to decide that a reinstatements is not possible in view of the specific circumstances, in particular due to the lengthy period elapsed since Dr. Hajayandi’s dismissal, the Committee expects that the court will order an appropriate redress, taking into account both the damage incurred by this trade union representative and the need to prevent the repetition of such situations in future, through the imposition of adequate compensation. The Committee requests the Government to keep it informed of developments in this respect and to provide it with a copy of the judgement.
9. 410. As to Law No. 1/015 of 29 November 2002, regulating the exercise of the right to organize and the right to strike in the public service (“the law”), the Committee notes that COSYBU, in a communication dated 3 November 2003, made certain observations on this legislation which it transmitted to the Committee of Experts on the Application of Conventions and Recommendations [Commission of Experts, Report III(1A), 2004, pp. 55 56], which will be able to deal with the issue as a whole once it has received the Government’s response concerning the problems raised by the law in question. As to the aspects directly concerning the complaint, the Committee notes a contradiction with regard to consultation on the subject of the law. COSYBU alleges that there has been no consultation whatsoever; for its part, the Government states that the trade unions were involved in the law’s elaboration, as can be seen from the minutes of the meetings, but these minutes are not enclosed with the communication. In this regard, the Committee draws the attention of the Government to the importance it attaches to prior consultation of employers’ and workers’ organizations before the adoption of any legislation in the field of labour law [see Digest, op. cit., para. 930]. The Committee invites the Government to hold, at a future date, appropriate consultation with employers’ and workers’ organizations during the elaboration and adoption of such legislation.

The Committee's recommendations

1. 411. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee trusts that, Dr. Hajayandi will be reinstated in his functions without loss of pay. If the court were to decide that a reinstatement is not possible in view of the specific circumstances, in particular due to the lengthy period elapsed since Dr. Hajayandi’s dismissal, the Committee expects that the court will order an appropriate redress, taking into account both the damage incurred by this trade union representative and the need to prevent the repetition of such situations in future, through the imposition of adequate compensation. The Committee requests the Government to keep it informed of developments in this respect and to provide it with a copy of the judgement.
   • (b) The Committee requests the Government to fully take account of the choice of workers’ organizations in nominating their representatives for joint or tripartite bodies.
   • (c) The Committee requests the Government to undertake appropriate consultation of workers’ and employers’ organizations in the future with regard to the elaboration and adoption of legislation in the field of labour law.
   • (d) The Committee draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to the legislative aspects of this case.