Report in which the committee requests to be kept informed of development - Report No 372, June 2014

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 at the Customs and Excise Office (OFIDA), and especially his dismissal

1. 508. The Committee last examined this case at its November 2011 meeting, when it presented an interim report to the Governing Body [see 362nd Report, paras 1426–1437, approved by the Governing Body at its 312th Session (November 2011)].
2. 509. The complainant organization supplied additional information in communications dated 24, 27 and 30 July and 1 October 2012, 29 March, 30 August and 26 September 2013, and 1 February 2014. The Government sent partial information in a communication dated 28 January 2013.
3. 510. At its October 2013 meeting [see 370th Report, para. 11], the Committee noted that a technical assistance mission from the Office visited the country in July 2013 to gather relevant information on the case.
4. 511. The Democratic Republic of the Congo 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. Previous examination of the case

1. 512. In its previous examination of the case in November 2011, the Committee made the following recommendations [see 362nd Report, para. 1437]:
   • (a) The Committee deeply deplores that, despite the time that has elapsed since the presentation of the complaint in April 2009, the Government has still not replied to the complainant’s allegations, even though it has been requested several times, including through two urgent appeals, to present its comments and observations on the allegations and its response to the recommendations made by the Committee in its previous examination of the case. The Committee notes with regret that the Government continues to fail to comply, despite assurances given to the President of the Committee at a meeting held in June 2011, and expects the Government to be more cooperative concerning this case and invites it to avail itself of the technical assistance of the Office.
   • (b) Recalling that the responsibility for applying the principles of freedom of association rest ultimately with the Government, the Committee urges the Government to take all the steps at its disposal, without delay, to follow up the decision of the General Labour Inspectorate to reinstate all members of the trade union delegation of OFIDA (now the DGDA), and to ensure 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 provide its comments on the allegations of DGDA interference in the trade union elections held in 2009, and to ensure that all future DGDA electoral processes comply with the principles of non-interference referred to above.

B. Additional information from the complainant organization

1. 513. In communications dated 24, 27 and 30 July and 1 October 2012, 29 March, 30 August and 26 September 2013, and 1 February 2014, the Congolese Labour Confederation (CCT) reports once again on the various approaches that it has continued to make to the different authorities in the country to secure implementation of the General Labour Inspectorate’s decisions to rehabilitate all the members of the trade union delegation of the Customs and Excise Department (DGDA), formerly OFIDA, and in particular to reinstate Mr Lubamba Kabeya in his post eight years after his dismissal. The CCT again denounces the problems that exist in relation to implementation of the General Labour Inspectorate’s decisions, even though the Ministry of Justice has been requesting the Prosecutor-General’s assistance with this matter since November 2010, and denounces the glaring impunity enjoyed by the DGDA management in this matter. In its most recent communication, the complainant denounces the status quo as proof of the Government’s blatant refusal to cooperate with the International Labour Organization.

C. The Government’s reply

1. 514. In its communication of 28 January 2013, the Government indicates that its information is supplied further to consultations with the DGDA inter-union association composed of 11 representative trade unions. According to the information collected, Mr Lubamba Kabeya held trade union office at the DGDA between 1999–2005. Elections were held in 2005 but he was not nominated as a candidate by his union, the Trade Union Confederation of Congo (CSC). Mr Kabeya subsequently disputed the election results, even though these were validated by the inter-union association and his own union.
2. 515. According to the Government, Mr Lubamba Kabeya then refused to attend work despite repeated calls to do so from the personnel division, which resulted in the OFIDA board members dismissing him for dereliction of duty on 18 July 2006. The Government adds that Mr Lubamba Kabeya returned to the DGDA in March 2009 as a representative of another trade union organization, the CCT, the complainant in the present case, which failed to win any seats in the elections held that year. The Government states that the DGDA confirmed that it paid agreed salary arrears of US$10,000 to Mr Lubamba Kabeya in 2005.

D. The Committee’s conclusions

1. 516. The Committee notes with interest that the Government accepted a technical assistance mission from the International Labour Office to gather information on the various cases that have been examined by the Committee over the years without any real progress being made in following up on its recommendations. The Committee noted the report of the technical assistance mission concerning the present case and welcomes the Government’s collaboration. It expects that any recommendations that it makes will be acted upon in the same spirit.
2. 517. The Committee recalls that this complaint, which was presented in April 2009, deals with allegations of reprisals since March 2005 against trade union delegates at the Customs and Excise Office (OFIDA), in particular the President of the union delegation, Mr Lubamba Kabeya, for going on strike, and the alleged persistent refusal of the Director of the DGDA, formerly OFIDA, to implement Labour Inspectorate Decision No. 22/METPS/IGT-JLL/JMK/003/2010 of 18 June 2010 invalidating the suspensions and dismissals of the trade union delegates and also the results of the union elections held at the DGDA in 2005 and 2009.
3. 518. The Committee notes the continuing supply of information from the complainant organization concerning the problems it faces in securing the rehabilitation of all the members of the OFIDA trade union delegation of 2005, in particular the reinstatement of Mr Lubamba Kabeya in his position, and the invalidation of the union elections held in 2005 and 2009, in accordance with the General Labour Inspectorate decision. The CCT also continues to condemn the apparent impunity enjoyed by the person largely responsible for the situation, the DGDA Director-General, who persists in refusing to implement the General Labour Inspectorate decision. In its most recent communication, the complainant denounces the status quo as proof of the Government’s blatant refusal to cooperate with the International Labour Organization.
4. 519. The Committee further notes the Government’s observations on the present case received in January 2013. The Government states that it obtained information from the inter-union association comprising 11 representative trade unions currently operating at the DGDA. According to this information, Mr Lubamba Kabeya held trade union office within the DGDA between 1999–2005. Elections were held in 2005 but he was not nominated as a candidate by his union, the CSC. Mr Kabeya subsequently disputed the election results, even though these were validated by the inter union association and his own union. Mr Lubamba Kabeya then refused to attend work for several months despite repeated calls to do so from the OFIDA personnel division, which resulted in the OFIDA board members dismissing him for dereliction of duty on 18 July 2006. The Government adds that Mr Lubamba Kabeya returned to the DGDA in March 2009 as a representative of another trade union organization, the CCT, the complainant in the present case, which failed to win any seats in the elections held that year. Lastly, the Government states that the DGDA confirmed that in 2005, at the request of Mr Lubamba Kabeya, it paid him the agreed salary arrears of US$10,000.
5. 520. The Committee noted the detailed information supplied to the technical assistance mission in relation to the present case. It observes differences of viewpoint and interpretation with regard to the texts presented by the parties concerned and also notes the contradictory statements of certain authorities. Further details are given below.
6. 521. Mr Lubamba Kabeya had been an employee at OFIDA since 1990. He took up his post as assistant controller on 1 March 1990 in the Katanga provincial office. Mr Lubamba Kabeya stood for union election in 1998 as a representative of the CSC. He headed the CSC list and was elected as a union delegate. Since it was for this union to nominate the delegate to head the national union delegation, in accordance with the structure of the inter-union association at OFIDA, Mr Lubamba Kabeya was appointed President of the national union delegation at OFIDA. He was thus head of the national union delegation from 1998 to 2005, namely for two successive terms of office which, by all accounts, he duly completed.
7. 522. Further to three decrees issued on 12 October 2004 by the Ministry of Labour and Social Welfare (No. 12/CAB.MIN/TPS/AR/NK/054 establishing procedures concerning representation and elections for workers in all types of enterprises and establishments; No. 12/CAB.MIN/TPS/VTB/053/2004 lifting the measures suspending trade union elections in all types of enterprises and establishments; and No. 12/CAB.MIN/TPS/055/12/2004 establishing the schedule for trade union elections in all types of enterprises and establishments), the OFIDA administration was due to meet the outgoing trade union delegation and the unions that wished to propose candidates for election to make the necessary arrangements.
8. 523. The Committee observes that a strike was called in February 2005, after due notice was given, by the inter-union association at OFIDA. In the wake of this strike, a number of employees, including Mr Lubamba Kabeya and several other trade union delegates, were suspended for one month without pay in March 2005. The request of 7 April 2005 from the Minister of Labour and Social Welfare to lift the disciplinary measures was ignored.
9. 524. With regard to the trade union elections held at OFIDA in 2005, the Committee notes that, according to the DGDA and the inter-union association currently operating there, elections have been held regularly with technical assistance from the General Labour Inspectorate at all stages of the electoral process. However, the Committee notes that the General Labour Inspectorate warned the OFIDA Chief Executive several times about the illegality of the elections held and called for them to be invalidated (correspondence of June and October 2005). It appears that OFIDA failed to meet this request. The Committee further notes correspondence from the Minister of Labour and Social Welfare dated 5 December 2005, further to a request from OFIDA, taking note of the installation of the new trade union delegation at OFIDA and indicating that, with harmonious labour relations established in the enterprise, there was no question of holding fresh elections; a position that was confirmed by the General Labour Inspectorate in a letter of September 2006.
10. 525. As regards the dismissal measures affecting the outgoing trade union delegates at OFIDA, in particular Mr Lubamba Kabeya, it is the Committee’s understanding that the suspension without pay affecting all the delegates related to April 2005. Since the dispute, according to the DGDA, Mr Lubamba Kabeya no longer attended work (at the Kin-Est provincial office), despite letters of formal notice sent by the personnel division. Further to this lengthy absence, the Kin-Est provincial Director drew up a report of dereliction of duty in July 2006 and the OFIDA board members unanimously approved his dismissal on 18 July 2006. However, the Committee notes that, since November 2005, the General Labour Inspectorate refused to authorize OFIDA to terminate Mr Lubamba Kabeya’s contract since, being in dispute with the institution and pending a final decision, he could not be said to be guilty of dereliction of duty. The Labour Inspectorate then reminded OFIDA of the need to comply with the applicable legal procedures and agreements. The Committee also notes the General Labour Inspectorate’s statement that OFIDA’s freeze on Mr Lubamba Kabeya’s salary constitutes an abuse of power. Lastly, the Committee notes that, further to the dismissal announced in July 2006, the Labour Inspectorate again drew OFIDA’s attention to the irregularity of the procedure and the need to overturn it in August 2006. It appears that OFIDA failed to meet this request.
11. 526. The Committee observes that General Labour Inspectorate Decision No. 22/METPS/IGT-JLL/JMK/003/2010 of 18 June 2010 invalidating the suspensions and dismissals of trade union delegates and the results of the union elections held in 2005 and 2009 within the institution, merely confirms the positions adopted by the Labour Inspectorate in response to OFIDA’s non-compliance. The Committee considers that it would not be appropriate for it to analyse the arguments for or against the decision of the General Labour Inspectorate, which is the competent authority regarding labour law and labour relations.
12. 527. In the present case, the Committee can only note with deep concern that serious violations of freedom of association – in particular the freedom to perform trade union activities without discrimination and the freedom to elect representatives – clearly recorded by the General Labour Inspectorate at the time, have not been remedied for several years, despite repeated orders to do so. The Committee is astonished that an institution is able to disregard orders from a public authority for so many years without being penalized. The Committee notes with concern that these violations of freedom of association have had an extremely adverse impact on one trade union leader by depriving him of income since 2005.
13. 528. In view of the above, the Committee repeats its previous recommendation and requests the Government to take all necessary steps immediately to implement the decision of the General Labour Inspectorate.
14. 529. As regards the professional situation of Mr Lubamba Kabeya, the Committee expects a decision to be adopted to reinstate him immediately in his post with payment of all salary arrears and allowances due since 2005. If reinstatement is not possible, for objective and compelling reasons, adequate compensation should be paid as reparation for all the damage suffered and to prevent any repetition of such acts in the future, which presupposes penalties that are a sufficient deterrent against acts of anti-union discrimination. The Committee expects the Government to provide information as soon as possible on the measures taken.
15. 530. As regards the Government’s argument that the DGDA confirmed that it had paid Mr Lubamba Kabeya more than US$10,000 in salary arrears in 2005, it is the Committee’s understanding that this stemmed from the regularization of his status as staff representative within the OFIDA management committee from 1998 to 2005, and is unconnected with the salary freeze imposed on him since the start of the dispute in March 2005; something that the Labour Inspectorate has regarded as clearly constituting an abuse of power on the part of the institution.
16. 531. Aware of the length of time that has passed since the electoral processes of 2005 and 2009, the Committee is bound to expect that the Government will ensure that all future DGDA electoral processes comply with the principles of non-interference by the employer in the choice of workers’ representatives.
17. 532. The Committee notes that an appeal was filed with the Supreme Court of Justice in January 2011 against the General Labour Inspectorate’s decision. The Committee requests the Government to inform it of the rules governing time limits for appeals against a General Labour Inspectorate decision and to keep it informed with regard to the receivability and, if applicable, the outcome of the appeal.
18. 533. The Committee requests the Government to implement quickly the recommendations set out below, in view of the human dimension of the case and the length of time that has passed since the case was presented.

The Committee’s recommendations

1. 534. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) As regards the professional situation of Mr Lubamba Kabeya, the Committee expects a decision to be adopted to reinstate him immediately in his post with payment of all salary arrears and allowances due since 2005. If reinstatement is not possible, for objective and compelling reasons, adequate compensation should be paid as reparation for all the damage suffered and to prevent any repetition of such acts in the future, which presupposes penalties that are a sufficient deterrent against acts of anti-union discrimination. The Committee expects the Government to provide information as soon as possible on the measures taken.
   • (b) Aware of the length of time that has passed since the electoral processes of 2005 and 2009, the Committee is bound to expect that the Government will ensure that all future DGDA electoral processes comply with the principles of non-interference by the employer in the choice of workers’ representatives.
   • (c) The Committee requests the Government to inform it of the rules governing time limits for appeals against a General Labour Inspectorate decision and to keep it informed with regard to the receivability and, if applicable, the outcome of the appeal lodged in January 2011 in relation to this case.
   • (d) The Committee requests the Government to implement quickly the recommendations set out above, in view of the human dimension of the case and the length of time that has passed since the case was presented.