Interim Report - Report No 358, November 2010

Case No 2715 (Democratic Republic of the Congo) - Complaint date: 06-APR-09 - Follow-up

Allegations: The complainant alleges anti-union discrimination against the president of the national trade union delegation of the Customs and Excise Office (OFIDA), and especially his dismissal

1. 893. The complaint was presented in communications dated 6 and 13 April, 14 September and 23 November 2009, and 27 January and 5 August 2010.
2. 894. As the Government has not replied, the Committee has been obliged to postpone its examination of this case. At its May–June 2010 meeting [see 357th Report, para. 5, approved by the Governing Body at its 308th Session], the Committee issued an urgent appeal to the Government indicating that, in accordance with the procedural rules set out in paragraph 17 of its 127th Report, approved by the Governing Body in 1972, it could present a report on the substance of these cases even if its observations or information had not been received in time. To date, the Government has not sent any information whatsoever.
3. 895. The Democratic Republic of the Congo has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), as well as the Workers’ Representatives Convention, 1971 (No. 135).

A. The complainant organization’s allegations

1. 896. In its communication dated 6 April 2009, the Congolese Labour Confederation (CCT) denounces the harassment and intimidation of employees of the Customs and Excise Office (OFIDA) who are members of OFIDA’s trade union delegation, and specifically of the delegation’s national president and staff representative on OFIDA’s management committee, Mr Lubamba Kabeya. According to the complainant, the management committee decided to dissolve the trade union delegation in March 2005. Subsequently, in July 2005, Mr Lubamba Kabeya was the victim of arbitrary arrest at the behest of the High Court of Kinshasa/Gombe following a request from his employer for an official inquiry (requisition d’information). He was later illegally dismissed without the mandatory prior authorization from the labour inspectorate under article 258 of the Labour Code. The CCT draws special attention to the difficult situation in which Mr Lubamba Kabeya finds himself as he has been without financial resources since his dismissal in 2005. The complainant also denounces the employer’s refusal so far to follow the General Labour Inspectorate’s recommendation that it reinstate the trade union delegation.
2. 897. In its communication dated 13 April 2009, the complainant also refers to serious interference by OFIDA in the trade union elections held the previous March. Among other things, it denounces the intimidation and harassment of candidates presented by the CCT and OFIDA’s unilateral decision on 16 March 2009 to bar them from the elections without any valid reason. The complainant has appealed through all possible channels to have the elections declared null and void, but to no avail.
3. 898. In its communication dated 14 September 2009, the complainant describes the steps its has taken to bring the situation to the attention of the public authorities, particularly the Ministry of Justice and the Ministry of Employment, Labour and Social Welfare, and expresses its concern at the administration’s silence. In an official communication to the Public Prosecutor, the General Labour Inspector recognized that the dissolution of the OFIDA trade union delegation followed by the holding of trade union elections was a violation of the law and confirmed that he did not authorize the termination of Mr Lubamba’s contract by his employer.
4. 899. In its communications dated 23 November 2009 and 27 January 2010, the complainant denounces the dilatory and discriminatory administration of justice, owing to social status of the person responsible for the situation, namely, Mr Rugziwa Magera, general delegated administrator of OFIDA, currently on official mission for the General Customs and Excise Directorate (DGDA).
5. 900. In its communication dated 5 August 2010, the CCT states that, by letter No. 2829/D.23/10501/MOP/2010 of 26 May 2010, the Public Prosecutor ordered the General Labour Inspector to comply with the spirit of its letter dated 14 June 2005 reinstating union delegate Lubamba Kabeya in his trade union function along with his entire team. The General Labour Inspector accordingly took decision No. 22/METPS/IGT-JLL/JMK/003/2010 on 18 June 2010 and issued internal directive No. 22/METPS/IGT/021/2010. The complainant denounces the renewed refusal of the DGDA (formerly OFIDA), by letter No. DGDA/DG/DRH/1510, to comply with the decisions of the General Labour Inspector. The CCT denounces the repercussions of the Director General’s refusal on its trade union activities which are at a standstill in the DGDA over the personal situation of Mr Lubamba Kabeya, who has been deprived of any financial resources since 2005.

B. The Committee’s conclusions

1. 901. The Committee regrets that, despite the length of time that has passed since the complaint was first presented, the Government has not responded to the complainant’s allegations even though it has been invited on several occasions to send its comments and observations on the case and has received an urgent appeal to do so. Noting furthermore that this is the fourth consecutive case on which the Government has failed to provide any information in response to the allegations presented, the Committee urges the Government to be more cooperative in the future.
2. 902. Under these circumstances and in accordance with the applicable procedure [see 127th Report, para. 17, approved by the Governing Body at its 184th Session (1972)], the Committee finds itself obliged to present a substantive report on the case without being able to take into account the information it has sought from the Government.
3. 903. The Committee reminds the Government that the purpose of the whole procedure established by the International Labour Organization for examining allegations of violations of freedom of association is to ensure respect for trade union rights in law and in practice. The Committee is convinced that, while this procedure protects governments against unreasonable accusations, they must recognize the importance for the protection of their own good name of formulating for objective examination detailed replies concerning the allegations brought against them (see First Report of the Committee, paragraph 31).
4. 904. The Committee notes that the present case concerns the perpetration of acts of harassment and intimidation against trade union officers by the DGDA since 2005, notably the dismissal of the president of the trade union delegation, and its interference in union elections.
5. 905. The incidents denounced by the complainant can be summarized as follows: in March 2005, the members of the trade union delegation of the OFIDA were suspended and the delegation itself dissolved by OFIDA’s administrative committee, following which new elections were organized without any account being taken of the legal provisions in force.
6. 906. The Committee notes the complainant’s statement that in July 2005 the president of the staff union delegation and staff representative on OFIDA’s management committee, Mr Lubamba Kabeya, was the victim of arbitrary arrest at the behest of the High Court of Kinshasa/Gombe following a request by his employer for an official inquiry (requisition d’information). He was later illegally dismissed without prior authorization from the labour inspectorate as required under article 258 of the Labour Code. The Committee notes that, as early as 2005, the General Labour Inspectorate recommended his reinstatement in his post but that OFIDA failed to implement its recommendations. The Committee recalls that one of the fundamental principles of freedom of association is that workers should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment, such as dismissal, demotion, transfer or other prejudicial measures. This protection is particularly desirable in the case of trade union officials because, in order to be able to perform their trade union duties in full independence, they should have a guarantee that they will not be prejudiced on account of the mandate which they hold from their trade unions. The Committee has considered that the guarantee of such protection in the case of trade union officials is also necessary in order to ensure that effect is given to the fundamental principle that workers’ organizations shall have the right to elect their representatives in full freedom [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para 799].
7. 907. The Committee concludes, from its information that the General Labour Inspectorate called for the reinstatement of the president of OFIDA’s union delegation and of his team as long ago as 2005, that it has been recognized that the dismissal of Mr Lubamba Kabeya was decided in violation of the legal texts in force. The Committee notes that in its latest communication the complainant states that in May 2010 the Public Prosecutor ordered the General Labour Inspector to comply with the spirit of its letter dated 14 June 2005 reinstating union delegate Lubamba Kabeya in his trade union duties along with his team, and that the General Labour Inspector accordingly took decision No. 22/METPS/IGT-JLL/JMK/003/2010 on 18 June 2010 and issued internal directive No. 22/METPS/IGT/021/2010. The Committee observes that five years have now elapsed without the General Labour Inspectorate’s 2005 decision reinstating OFIDA’s union delegation being implemented. The Committee recalls that cases concerning anti-union discrimination contrary to Convention No. 98 should be examined rapidly, so that the necessary remedies can be really effective. An excessive delay in processing cases of anti-union discrimination, and in particular a lengthy delay in concluding the proceedings concerning the reinstatement of the trade union leaders dismissed by the enterprise, constitute a denial of justice and therefore a denial of the trade union rights of the persons concerned [see Digest, op. cit., para. 826].
8. 908. The Committee notes the statement that, by letter of 15 July 2010, the Director General of the DGDA (formerly OFIDA) refused to comply with the decisions of the General Labour Inspector. The Committee expresses its concern at the length of time that has elapsed without any solution being found to the problem, which may prevent the trade union delegation from defending its members’ interests effectively and continues to aggravate the personal situation of Mr Lubamba Kabeya, who the CCT says has been without any financial resources since he was dismissed. Recalling that the responsibility for applying the principles of freedom of association rests ultimately with the Government, the Committee urges the Government without delay to take all the steps at its disposal to follow up the General Labour Inspectorate’s decision to reinstate all the members of the OFIDA (now DGDA) union delegation and to ensure that Mr Lubamba Kabeya is reinstated in his post and is paid the wages that are in arrears and all benefits due to him.
9. 909. The Committee notes further that the complainant denounces serious interference by the DGDA in the trade union elections held in March 2009. According to the CCT, the candidates on its list were the victims of intimidation and harassment, and OFIDA decided to exclude the CCT’s candidates without any valid reason. The Committee also notes that the CCT’s appeals to the public authorities have all been in vain. The Committee takes note of the documents provided by the CCT in this respect, in particular the notice dated 14 June 2005 given by the General Labour Inspector to the direction of the OFIDA recommending to cancel the current process of trade unions’ elections declared to be illegal; the notice of 18 June 2010 given by the General Labour Inspector to the direction of the DGDA (ex OFIDA) requesting to cancel the trade unions’ elections organized in April 2005 and March 2009 which had been declared illegal; the order issued by the General Labour Inspector of 10 July 2010 for an inspection visit to the DGDA; the mission report on the inspection visit dated 19 July 2010 which takes note of the reluctance of the direction of the DGDA vis-à-vis the mission and recommends that the prosecutor inform the direction of the DGDA of the decision of the General Labour Inspector of 18 June 2010 and ensure its implementation with the support of the police forces if necessary. The Committee recalls that workers and their organizations should have the right to elect their representatives in full freedom and the latter should have the right to put forward claims on their behalf [see Digest, op. cit., para. 389]. Furthermore, legislation must make express provision for appeals and establish sufficiently dissuasive sanctions against acts of interference by employers against workers and workers’ organizations to ensure the practical application of Articles 1 and 2 of Convention No. 98 [see Digest, op. cit., para. 862]. Given the circumstances, the Committee requests that the Government take all the necessary measures to implement the decision of the General Labour Inspector requesting to cancel the trade unions’ elections held in the OFIDA in April 2005 and in the DGDA in March 2009 and ensure that any elections held in the DGDA in future comply with the principles of non-interference referred to above.

The Committee's recommendations

1. 910. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee regrets that the Government has not responded to the complainant’s allegations even though it has been invited on several occasions to send its comments and observations on the case and has received an urgent appeal to do so. Noting furthermore that this is the fourth consecutive case on which the Government has failed to provide any information in response to the allegations presented, the Committee urges the Government to be more cooperative in the future.
   • (b) Recalling that the responsibility for applying the principles of freedom of association rests ultimately with the Government, the Committee urges it without delay to take all the steps at its disposal to follow up the General Labour Inspectorate’s decision to reinstate all the members of the OFIDA (now DGDA) union delegation, and to ensure that Mr Lubamba Kabeya is reinstated in his post and is paid the wages that are in arrears and all benefits due to him.
   • (c) The Committee requests that the Government take all the necessary measures to implement the decision of the General Labour Inspector requesting to cancel the trade unions’ elections held in the OFIDA in April 2005 and in the DGDA in March 2009, and ensure that any elections held in the DGDA in the future comply with the principles of non-interference referred to above.