Report in which the committee requests to be kept informed of development - Report No 340, March 2006

Case No 2429 (Niger) - Complaint date: 19-MAY-05 - Closed

Allegations: The complainant organizations allege that the Niger Electricity Company (NIGELEC) dismissed the General Secretary of the Niger Electricity Workers’ Union (SYNTRAVE) for reasons of anti-union discrimination, in violation of national legislation protecting the workers’ representatives, and that it hampers SYNTRAVE’s legitimate trade union activities, specifically by opposing the freedom of workers to join the union and by discriminating against it

1179. The complaint appears in a communication from the Confederation of Workers of Niger (CNT) and the Democratic Organization of African Workers’ Trade Unions (DOAWTU), dated 19 May 2005, supported by the World Confederation of Labour (WCL) in a communication dated 23 May 2005. The WCL sent additional information in July 2005 and February 2006.

1. 1180. The Government sent its reply in a communication dated 26 October 2005.
2. 1181. 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 Workers’ Representatives Convention, 1971 (No. 135).

A. The complainants’ allegations

1. 1182. In their communications dated 19 May and July 2005, the complainant organizations explain that the Niger Electricity Workers’ Union (SYNTRAVE) held its constituent assembly on 29 November 2003 and that it was registered by the authorities on 4 December 2003. At the time, there were two trade unions operating within the Niger Electricity Company (NIGELEC): the National Water and Energy Workers’ Union (SYNATREEN), which existed previously, and the newly constituted SYNTRAVE.
2. 1183. According to the complainant organizations, the NIGELEC management has constantly and repeatedly exercised discrimination between the two organizations, for example: by only recognizing SYNATREEN; by systematically omitting SYNTRAVE from all circulars and official memoranda; by openly taking SYNATREEN’s side on the 1 May holiday (distribution of sarongs for the procession, company car park privileges for members of SYNATREEN only); and by organizing elections on behalf of SYNATREEN only.
3. 1184. The complainant organizations also allege that the company has arbitrarily transferred numerous SYNTRAVE activists and executive committee members in order to destabilize the organization, including Mr. Ibrahim Woussi, Information Secretary, transferred to Dosso (140 km from the SYNTRAVE headquarters); Mr. Abdourhamane Garba, Union Training Secretary, transferred to Bagaroua (400 km from headquarters); Mr. Assoumane Issoufou, Organizational Secretary, transferred to Keïta (500 km from headquarters); Mr. Issoufou Bah, Disputes and Negotiations Secretary, transferred to Arlit (1,200 km from headquarters); Mr. Mohamed Goumar, Financial Secretary, transferred to Agadez (1,000 km from headquarters); M. Abdou Namata, Deputy Disputes and Negotiations Secretary, transferred to Dolbel (200 km from headquarters); and many other workers.
4. 1185. In addition, the Electrical Trades Centre (CME), the mass of whose staff joined SYNTRAVE, was promptly closed down and its employees gradually relocated in other departments. The members and officers of SYNTRAVE who were transferred have all been placed under the direct authority of SYNATREEN officials. Moreover, the members of SYNTRAVE are constantly being harassed: Mr. Assoumane Issoufou, for instance, whose immediate supervisor had granted 72 hours’ leave of absence to collect his wages, was subsequently refused permission by the company administrator’s delegate.
5. 1186. On 10 December 2003, Mr. Diamyo El Hadj Yacouba (General Secretary of SYNTRAVE, staff representative and member of the works’ committee, counting 22 years with the company including 15 as staff representative) wrote to the administrator’s delegate in his capacity as General Secretary to complain, inter alia, that he had informed the staff representatives that he would not accept the presence of two unions at NIGELEC and had ordered his collaborators to use their influence to ensure that none of the workers joined SYNTRAVE. On 29 December 2003, Mr. Diamyo was informed of his administrative suspension pending the labour inspectorate’s response to the administrator’s delegate’s request for authorization to dismiss him. Also at the request of the administrator’s delegate, Mr. Diamyo was summoned to appear on 12 January 2004 before the magistrate’s court on a libel charge arising out of the same circumstances. On 4 February 2004, the labour inspectorate declared the request for dismissal irreceivable on the grounds that, since penal proceedings took precedence over civil proceedings, the matter would have to be ruled upon by the magistrate’s court. On 9 February 2004, the administrator’s delegate informed Mr. Diamyo that he was dismissed as from 10 February 2004 for committing a serious offence. On 12 February 2004 the Minister of the Public Service and of Labour, Chairman of the Inter-ministerial Negotiating Committee, informed the administrator’s delegate in writing that he considered the dismissal inopportune inasmuch as negotiations were under way regarding Mr. Diamyo’s reinstatement. Following an appeal by Mr. Diamyo, the Niamey regional tribunal ordered that his work contract be upheld, subject to a fine of 100,000 CFA per day of non-compliance, on the grounds that, under section 216 of the Labour Code, “Any dismissal of an elected representative of the staff, for whatever reason, shall be submitted for approval to the labour inspectorate. An employer who dismisses such an elected representative thereby commits an act of infringement of his or her civil liberties and a grave disturbance of the peace that must be corrected” (summary Order No. 66 of 13 April 2004). The Niamey Court of Appeal (Civil Chamber, Judgement No. 10 of 6 February 2006) ruled that Mr. Diamyo’s dismissal was null and void, and that he should be reinstated in his previous job and circumstances, also subject to a fine of 100,000 CFA per day for non-compliance. In spite of these rulings, Mr. Diamyo has not yet been reinstated.
6. 1187. The Minister of Labour wrote to LEGELEC on 17 February 2006 to inform it that the Inter-ministerial Committee, upon being informed of the Appeal Court’s judgement, had decided to request NIGELEC “to take necessary measures to implement the Court’s decision”.
7. 1188. The complainant organizations maintain that the attitude of the NIGELEC management constitute clear acts of anti-union discrimination and favouritism, in violation of the interoccupational collective agreement, of national legislation and of the international Conventions of the ILO.
8. B. The Government’s reply
9. 1189. In its communication dated 26 October 2005, the Government states that the case of Mr. Diamyo El Hadj Yacouba’s dismissal has followed almost all the steps provided for under the regulations and agreements currently in force; internal procedures, in accordance with the plant rules and staff regulations; request for authorization to dismiss; libel action brought by the administrator’s delegate before the Niamey regional tribunal; NIGELEC’s decision to dismiss; Mr. Diamyo’s summary appeal against the decision; the authorities’ intercession with NIGELEC on his behalf. The Court of Appeal of Niamey has ruled twice on the case, which is currently pending before the Supreme Court following Mr. Diamyo’s appeal.
10. 1190. The Government emphasizes that Mr. Diamyo’s dismissal harks back to another problem that is equally important, namely the rivalry between SYNATREEN and SYNTRAVE. However, while taking care not to interfere in the judicial process under way, the Government is examining every means of reaching an equitable settlement of this dispute, so as to maintain a permanent dialogue with the social partners.
11. 1191. With its communication, the Government attached the ruling of the magistrate’s court of Niamey (10 February 2004) recognizing that Mr. Diamyo was guilty of libel; the summary order issued by the regional tribunal of Niamey (13 April 2004) upholding Mr. Diamyo’s contract; the judgement of the Niamey labour tribunal (25 May 2004) denying Mr. Diamyo’s request that his dismissal be voided, on the ground that it was not covered by section 216 of the Labour Code (prohibiting the dismissal of staff representatives without prior authorization from the labour inspector).

C. The Committee’s conclusions

1. 1192. The Committee notes that the complaint concerns several allegations of anti-union discrimination, at a time of inter-union rivalry within the Niger Electricity Company (NIGELEC) between the Water and Energy Workers’ Union (SYNATREEN) and the Niger Electricity Workers’ Union (SYNTRAVE). The complainant organization alleges: acts of favouritism by the company towards SYNATREEN; the refusal of NIGELEC to recognize SYNTRAVE; a large number of arbitrary transfers of members and officers of SYNTRAVE; and the dismissal of Mr. Diamyo El Hadj Yacouba, General Secretary of SYNTRAVE, staff representative and member of the works’ committee.
2. 1193. The Committee recalls first of all that a matter involving no dispute between the government and the trade unions, but which involves a conflict within the trade union movement itself, is the sole responsibility of the parties themselves, and that it is not competent to make recommendations on internal dissentions within a trade union organization [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 962-963].
3. 1194. The Committee notes, however, that based on the information supplied by the complainant organizations to which the Government has not responded, the management of NIGELEC appears to have shown favouritism towards the pre-existing organization: recognition of SYNATREEN alone; failure to communicate circulars and official memoranda to SYNTRAVE, favouritism towards SYNATREEN during the 1 May holiday; systematic placing of SYNTRAVE members under the authority of SYNATREEN officers; organizations of elections on behalf of SYNATREEN alone. Observing that SYNTRAVE, after meeting all the requirements of the law, was duly registered by the authorities, the Committee considers that a government, especially when it has ratified the relevant Conventions, must ensure that employers abide by legislative provisions designed to guarantee equal treatment of trade union organizations and do not discriminate in favour of any particular workers’ organization. The Committee calls on the Government to issue appropriate instructions rapidly to the management of NIGELEC to respect this principle, and asks to keep it informed of the steps taken to this end.
4. 1195. The Committee notes with regret that the Government has provided no information on the abusive transfers to which several members and officers of SYNTRAVE have allegedly been subjected. Stressing that measures of this kind constitute very serious violations of freedom of association, in that they can seriously undermine the viability and future existence of a workers’ organization, the Committee recalls that no person should be prejudiced in his or her employment by reason of trade union membership, even if that trade union is not recognized by the employer as representing the majority of workers concerned [see Digest, op. cit., para. 701] and that a deliberate policy of frequent transfers of persons holding trade union office may seriously harm the efficiency of trade union activities [see Digest, op. cit., para. 712]. The Committee calls on the Government to undertake rapidly an independent enquiry into these allegations and, should they prove to be grounded, to take the necessary action to ensure that appropriate corrective steps are taken swiftly. The Committee requests the Government to keep it informed of developments in this situation.
5. 1196. Regarding Mr. Diamyo El Hadj Yacouba’s dismissal, the Committee notes his claim that he was dismissed for reasons of anti-union discrimination; the employer argues that he was in fact dismissed for committing a serious offence by sending an open letter containing libellous comments regarding the company administrator’s delegate. The Committee observes that the injunction issued at the time ordered that Mr. Diamyo’s contract be upheld on the ground that his dismissal, for whatever reason, could not take place without prior authorization by the labour inspectorate, inasmuch as he was entitled to the additional protection afforded under section 216 of the Labour Code to elected staff representatives; the labour court, however, decided otherwise on the ground that Mr. Diamyo was not covered by section 216. The Committee finally notes that the Appeal Court of Niamey has ruled that Mr. Diamyo El Hadj Yacouba should be reinstated with status quo ante, and that the Inter-ministerial Committee has requested NIGELEC to implement the Court’s decision.
6. 1197. In the light of the circumstances of the case, noting the authorities’ efforts to intercede in this matter and, bearing in mind both the spirit and the letter of section 216 of Niger’s Labour Code, as well as the provisions of the Workers’ Representatives Convention, 1971 (No. 135), which Niger has ratified and which deals specifically with this kind of situation, the Committee trusts that NIGELEC will implement rapidly the judgement of the Niamey Appeal Court. The Committee requests the Government to keep it informed of developments in this respect.

The Committee's recommendations

1. 1198. In the light of the foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee calls on the Government to issue appropriate instructions rapidly to the management of NIGELEC to respect the legislative provisions designed to guarantee equal treatment of trade union organizations legally present within an enterprise, and not to discriminate against SYNTRAVE. The Committee requests the Government to keep it informed of developments in this respect.
   • (b) The Committee calls on the Government to undertake rapidly an independent inquiry into the alleged arbitrary transfers of several members and officers of SYNTRAVE and, should they prove to be grounded, to take the necessary action to ensure that appropriate corrective steps are taken swiftly. The Committee requests the Government to keep it informed of developments in this situation.
   • (c) Regarding the dismissal of Mr. Diamyo El Hadj Yacouba, the Committee trusts that the NIGELEC company will implement rapidly the judgement of the Niamey Appeal Court, ordering reinstatement with status quo ante, and requests the Government to keep it informed of developments in this respect.