Report in which the committee requests to be kept informed of development - Report No 389, June 2019

Case No 3201 (Mauritania) - Complaint date: 24-MAR-16 - Follow-up cases closed due to the absence of information from either the complainant or the Government in the last 18 months since the Committee examined the cases

Allegations: The complainant organization denounces a Ministry of Labour circular suspending the election of staff representatives, thereby depriving the workers of legal representatives for concluding collective agreements and submitting individual and collective labour grievances

1. 467. The complaint is contained in communications from the General Confederation of Workers of Mauritania (CGTM) dated 24 March 2016, 8 March 2017 and 1 August 2018.
2. 468. The Government sent its observations in a communication dated 13 May 2016.
3. 469. Mauritania 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).

A. The complainant’s allegations

1. 470. In its communication dated 24 March 2016, the CGTM denounced the provisions of Labour Directorate Circular No. 002 of 30 October 2014 suspending elections of staff representatives in Mauritania. The complainant indicated that this suspension is due to end after completion of the process instituted by Decree No. 156-2014/IJM of 21 October 2014, which introduces legal mechanisms for determining representativeness in the public and private sectors with a view to the holding of occupational elections.
2. 471. The complainant recalled that, under Mauritanian legislation, staff representatives in an enterprise have two main mandates: (i) to negotiate enterprise collective agreements (as established by section 99 of the Labour Code); and (ii) to submit individual and collective grievances emanating from the workers (section 122 of the Labour Code). These two mandates underline the key role played by staff representatives in labour relations throughout the existence of the enterprise, in particular during periods of collective bargaining. Under the terms of the Labour Code, any enterprise which employs more than ten workers is obliged to arrange for the appointment of staff representatives without delay (section 118 of the Labour Code). Penalties are incurred for any non-compliance with regard to the appointment of staff representatives or the performance of their duties (section 434 of the Labour Code).
3. 472. The CGTM also recalled that the term of office for staff representatives is two years (section 120 of the Labour Code) and that renewal of that term must occur during the month preceding the normal expiry of the representative’s duties (section 412 of Order No. 6.595 of 4 September 1953 as amended by Order No. 7.852 of 9 October 1955 and by Order No. 10.282 of 2 June 1965 adopted to implement the first title of Book V of the Labour Code concerning staff representatives). Lastly, the regulations in force provide that the employer has the responsibility for organizing and conducting the ballot (section 12 of Order No. 6.595 as amended by Orders Nos 7.852 and 10.282).
4. 473. However, according to the CGTM, the legal provisions concerning staff representatives are being increasingly violated inasmuch as a number of enterprises and undertakings are now refusing to renew the terms of office of staff representatives, encouraged to do so by the fact that the public authorities have suspended the renewal of staff representative bodies through Circular No. 002, whereby the Labour Director-General requested regional labour inspectors to defer any election of staff representatives. The CGTM appealed to the regional labour inspectorate of Nouakchott-Ouest (letter No. 063 of 16 December 2015) to protest against illegal and unacceptable interference. The regional labour inspectorate replied in writing (letter No. 389 of 28 December 2015) that it abides by the terms of the circular in question.
5. 474. The CGTM considered that this is a violation of the laws and regulations in force in the country and of Conventions Nos 87 and 98 ratified by Mauritania. In conclusion, the complainant requested the Committee on Freedom of Association to take the necessary steps to ensure that Mauritania repeals the provisions of Circular No. 002 of 30 October 2014.
6. 475. In a communication of 8 March 2017, the CGTM called for the examination of the complaint by the Committee to be suspended. The complainant indicated it had made this choice because of the willingness displayed by the Government to resolve the issue of the determination of trade union representativeness in the country. The Government thus acted on the recommendations of the ILO mission which visited the country in January 2017. On 6 March 2017, the Government signed a roadmap with all the trade unions, including the CGTM, advocating the organization of elections of staff representatives, between 1 July 2017 and 30 October 2017, both in private sector enterprises and ministerial departments, for the latter with a view to appointing the membership of joint administrative committees. The CGTM explained that it requested for the examination of its complaint to be suspended to maximize the chances of success of the process.
7. 476. However, in its communication of 1 August 2018, the CGTM noted that the process established in the roadmap of 6 March 2017 has not been put into effect by the Government. In the CGTM’s view, even though a number of regulatory texts have been adopted by the authorities, the fact remains that the process for the determination of trade union representativeness has been relegated to an amendment to the Labour Code, which, in view of the electoral deadlines set for 2019, could only be initiated in 2020 at the earliest. The CGTM also denounces the fact that this status quo appears to suit private sector enterprises, which continue to invoke Circular No. 002 of 30 October 2014 in order to refuse the organization of elections of staff representatives called for by the trade unions for the renewal of their terms of office. The situation thus deprives the workers of the possibility of submitting their individual and collective demands to the employers via the representatives that they should have under the law.

B. The Government’s reply

1. 477. In a communication dated 13 May 2016, the Government confirmed that the legislature has assigned important tasks to staff representatives within enterprises. These tasks are as follows: submission to the employer of all individual and collective grievances which have not been directly satisfied relating to conditions of work and the protection of workers; application of collective agreements and occupational classifications; submission to the labour inspectorate of all complaints or grievances concerning the application of laws and regulations which it has the responsibility to monitor; communication to the employer of all useful proposals for improving the organization and productivity of the enterprise; and communication to the employer of opinions and proposals on dismissals planned on economic grounds.
2. 478. In view of the importance of this mandate assigned to staff representatives, the Government had to ensure that they remained above reproach through the rigorous application of the legal provisions for their election. Accordingly, the Labour Directorate considered it essential that enterprises implement the relevant legal provisions. Section 120 of the Labour Code concerning the election of staff representatives provides that “in the first round of the ballot, each list shall be established by the most representative organizations within the undertaking for each category of staff”. However, to date, the issue of representativeness has not yet been resolved in the country. Since any election held in violation of the provisions of section 120 of the Labour Code would be null and void, the Labour Directorate has initiated a process, with the support of the ILO and in consultation with several trade union organizations, including the complainant, for the purpose of determining the most representative organizations.
3. 479. Accordingly, a regulatory text to give effect to the requirements of section 120 of the Labour Code was adopted, namely Decree No. 2014-156/PM concerning determination of the representativeness of trade union organizations, with regard to which extensive consultations were held before it was adopted. The Government therefore declared that it is involved in this process for determining the most representative trade unions in order to put an end to a situation which it considers to be having disastrous consequences for the legitimacy of the organizations currently negotiating on behalf of the workers.
4. 480. The Government indicated that the CGTM, like many other trade union organizations, has always been informed of measures taken, and that it seemed to fully accept the approaches adopted. The Government wished to underline its commitment to strict observance of the labour legislation, of which it is, ultimately, the primary guarantor, as well as its wish to pursue consultations and dialogue with all the stakeholders concerned to arrive at the determination of representativeness with respect to the trade unions in the country.

C. The Committee’s conclusions

1. 481. The Committee notes that, in the present case, the complainant organization denounces the suspension of elections of staff representatives in enterprises in the country as a result of a Labour Directorate circular issued in October 2014.
2. 482. The Committee notes that, according to the allegations of the CGTM, staff representatives play a key role in labour relations in enterprises on account of the mandate conferred on them by the Labour Code. Their mandate includes negotiating and concluding enterprise collective agreements and submitting individual and collective grievances on behalf of the workers. Under the terms of the Labour Code, any enterprise which employs more than ten workers is obliged to arrange for the appointment of staff representatives without delay, and penalties are incurred for any infringements. Moreover, the regulations in force provide that the employer shall be responsible for organizing and conducting the ballot.
3. 483. Recalling that the term of office for staff representatives is two years, the CGTM denounces the fact that more and more enterprises and undertakings are refusing at present to renew the terms of office of staff representatives, being encouraged to act thus by the public authorities, which have suspended the renewal of staff representative bodies through Labour Directorate Circular No. 002 of 30 October 2014, which calls on regional labour inspectorates to defer any election of staff representatives. Lastly, the CGTM indicates that the regional labour inspectorate of Nouakchott-Ouest was unwilling to accept its appeal of December 2015 denouncing interference by the public authorities.
4. 484. The Committee notes that the Government in its reply recognizes the importance of the mandate assigned by the legislature to staff representatives within enterprises. Referring to the provisions of the Labour Code under which the lists of candidates for staff representative elections must be drawn up by the most representative occupational organizations in the undertaking for each category of staff (section 120 of the Labour Code), the Government notes that determination of the most representative trade union organizations has not been carried out so far in Mauritania and that any election of staff representatives would therefore be in violation of the laws and regulations in force. This situation explains the adoption of Labour Directorate Circular No. 2 of October 2014, which, in the absence of determination of the most representative trade union organizations, suspended the elections and thereby prevented any possible impropriety with regard to holding them.
5. 485. At the same time, the Government recalls that it has been involved, since the adoption of Decree No. 2014-156/PM, with the trade union organizations concerned – including the CGTM – in a process for determining the most representative trade union organizations. This process, which is due to continue, is taking place with technical support from the ILO. The Committee notes the repeated commitment of the Government to pursue consultations and dialogue with all the stakeholders concerned to arrive at the determination of representativeness with respect to the trade unions in the country.
6. 486. The Committee notes that, further to an ILO mission in January 2017 and its ensuing recommendations, the Government agreed in March 2017 with all the trade unions, including the CGTM, on a roadmap advocating the organization of elections for staff representatives, between 1 July 2017 and 30 October 2017, in private sector enterprises and ministerial departments with a view to appointing the membership of joint administrative committees. Since it wanted the initiated process to be successful, the CGTM called for the examination of the complaint to be suspended a few days after the roadmap was signed. However, in August 2018, the complainant noted that the process established by the roadmap had still not been set in motion. Despite the adoption of a number of regulatory texts by the authorities, the CGTM deplores the fact that the process for determining trade union representativeness has been relegated to an amendment to the Labour Code, which, in view of the electoral deadlines set for 2019, could only be initiated in 2020 at the earliest. The CGTM also objects that private sector enterprises continue to invoke Circular No. 002 of 30 October 2014 in order to refuse the organization of elections of staff representatives called for by the trade unions for the renewal of their terms of office. The complainant deplores the fact that this situation thus deprives the workers of the possibility of submitting their individual and collective demands to the employers via the representatives that they should have under the law. The Committee is bound to express its concern at the time that has elapsed without any real progress being made in the organization of elections of staff representatives. The Committee considers that this situation can only have a harmful and destabilizing effect in the long term on the climate of labour relations since it deprives the workers of the fundamental right of being represented to defend or promote their economic and social interests.
7. 487. The Committee notes the position adopted by the Government in 2016 recalling its responsibility to ensure the observance of the laws and regulations in force and its wish to enable the holding of elections of staff representatives under impeccable conditions in which the determination of the most representative trade unions had already been accomplished. The Committee observes that Decree No. 2014-156/PM adopted to this effect relies on occupational elections in private sector enterprises and the public service with respect to the determination process. However, the Committee understands the concerns expressed by the complainant regarding the practical consequences of the absence of staff representatives in enterprises in the wake of Circular No. 002, which in effect takes the election process “back to square one”, eliminating or interrupting the main instrument of social dialogue and individual and collective dispute settlement established by the legislature. The Committee considers that, in view of the time that has elapsed since the adoption of Circular No. 002 in October 2014, a solution should be found as a matter of urgency to ensure without delay the legitimate representation of the workers in enterprises and the public service, and it expects that the Government will adopt as a matter of urgency all the regulatory texts provided for in Decree No. 2014-156/PM for establishing practical arrangements so that elections of staff representatives can be held without delay in private sector enterprises and the public service. The Committee urges the Government to keep it informed of all progress made in this regard.
8. 488. While noting the objective predefined criteria for the determination of representative trade union organizations laid down in Decree No. 2014-156/PM (respect for the values established by the Constitution; independence; nationwide presence; membership dues), the Committee expects the Government to inform it without delay of tangible measures taken to ensure the full implementation of the roadmap signed in March 2017 with the trade unions. In this regard, the Committee trusts that the Government will continue to avail itself of the technical assistance of the Office, if it so wishes.

The Committee’s recommendations

1. 489. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee expects that the Government will adopt as a matter of urgency all the regulatory texts provided for in Decree No. 2014-156/PM for establishing practical arrangements so that elections of staff representatives can be held without delay in private sector enterprises and the public service. The Committee urges the Government to keep it informed of all progress made in this regard.
   • (b) The Committee expects the Government to inform it without delay of the tangible measures taken to ensure the full implementation of the roadmap signed in March 2017 with the trade unions. In this regard, the Committee trusts that the Government will continue to avail itself of the technical assistance of the Office, if it so wishes.