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Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 259, Noviembre 1988

Caso núm. 1449 (Malí) - Fecha de presentación de la queja:: 22-MAR-88 - Cerrado

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  1. 236. The complaint alleging violations of freedom of association in Mali was
    • submitted in communications dated 22 March and 19 April 1988 by section III of
    • the National Trade Union of Education and Culture (SNEC). The Government sent
    • its observations and information on this case in a communication dated 10
    • August 1988.
  2. 237. Mali 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

A. The complainant's allegations
  1. 238. In their communications of 22 March and 19 April 1988 and in the
    • documentation they enclose on this case, the Secretary-General of section III
    • of the SNEC in the Bamako district, Mr. Modibo Diara, and the Acting
    • Secretary-General of the section, Mr. Youssouf Ganaba, allege that the
    • Government infringed their trade union rights following a strike by their
    • trade union section, which was held from 15 to 20 February 1988.
  2. 239. Giving an outline of the trade union legislation in Mali, they explain
    • that strike action is authorised under the Constitution and in regulations
    • made under the Act of 7 July 1987 (Act No. 87-47/AN-RM). They denounce the
    • reprisals to which they were subjected for having gone out on strike because
    • their salaries were at least three months in arrears.
  3. 240. Going into more detail, they point out that under a decision of 9
    • December 1986, the Ministry of Labour transferred 84 teachers in the middle of
    • the school year. They submit, as an enclosure, decision No. 25/60 MEN-DNEF
    • which includes the names of the transferred teachers and the places to which
    • they were appointed. The two signatories of the complaint are included in this
    • list of teachers. The complainants explain that the teachers transferred were
    • already having to cope with the deprivation caused by the three months'
    • overdue payment of their salaries, when they received the order to transfer to
    • schools where their colleagues had not been paid any salary for four or five
    • months. The complainants add that these transfers were arbitrary in so far as
    • they did not take into account the social conditions of the persons
    • transferred (separation of families, disruption of children's studies,
    • transfer of pregnant women). Furthermore, the transferred teachers allegedly
    • did not receive any compensation or salary advances to enable them to take up
    • their posts, whereas advances of this kind were provided for by law.
  4. 241. Furthermore, the two signatories of the complaint add that they
    • themselves were dismissed for having allegedly deserted their posts. However,
    • they allege that the competent national authorities, i.e. the Transit Service,
    • considered that the decision of 9 December 1986 transferring them to another
    • post was null and void. This Service had requested that the said decision of
    • transfer be updated so that those concerned might be given a transport voucher
    • enabling them to take up their posts. However, the Ministry of Labour
    • allegedly refused to update the decision of transfer and insisted on the fact
    • that it was still valid. The two signatories of the complaint admit that they
    • did not take up their posts but explained that they could not do so because
    • they had to cope with the problem of their families' survival.
  5. 242. The complainants also allege the dismissal and disappearance of Issa
    • N'Diaye, teacher of philosophy at the Higher Teacher Training Institute (Ecole
    • normale supérieure) and the detention of Charles Danioko and Komaka Keita,
    • teachers of history and geography and sociology, respectively, in this same
    • school, at the Gendarmerie barracks No. 1. According to the complainants,
    • these teachers had been accused of calling the students' march in their school
    • in support of the teachers.
  6. 243. Finally, it would seem from the documentation enclosed with the
    • complaint that the executive of the National Trade Union of Education and
    • Culture did not back the striking unionists' claims for the payment of arrears
    • on their salaries; on the contrary, by means of a decision of 10 March 1988
    • sent on 14 March by the Secretary-General of SNEC, Mr. Simaga, it suspended
    • one of the complainants in this case, i.e. Modibo Diara, Secretary-General of
    • section III, from any trade union and semi-official trade union activity.
  7. 244. In an open letter sent to the Secretary-General of SNEC, enclosed with
    • the complaint, Modibo Diara protested against his suspension from "any trade
    • union and semi-official trade union activity" with the formal order to
    • "refrain from any SNEC trade union work throughout the country until the next
    • ordinary congress of the organisation", proclaimed by the SNEC Executive. He
    • pointed out that this suspension was contrary to the procedure laid down in
    • the statutes and regulations of the SNEC. Indeed, according to this open
    • letter, although the executive or any other body might suspend one of its
    • members, the national body cannot individually suspend the members of another
    • body (section, division, subdivision or committee) because it did not elect
    • the members of the other level bodies.
  8. 245. Turning to the facts in this open letter, the complainant points out
    • that whilst he was Secretary-General of section III of the SNEC, in the Bamako
    • district, the only fault committed by his section was to remain faithful to
    • the legitimate aspirations of its activists concerning the chronic delay in
    • the payment of teachers' salaries and benefits as well as in their promotions
    • and reclassifications. In this respect, the complainant quotes the resolution
    • of the congress which "urges the national executive of the National Trade
    • Union of Education and Culture to engage, in co-operation with the other
    • national trade unions and the National Union of Workers of Mali, in the
    • struggle to obtain rights that have been undermined (salaries and benefits,
    • promotions, reclassifications); failing this, the congress will undertake the
    • struggle alone". The complainant goes on to say in the open letter that as
    • part of its campaign, section III, acting in a democratic and legal way, took
    • steps in November 1986 - given that salaries were three months overdue - to
    • persuade the executive to take joint action, as most of the divisions and
    • sections were calling upon the executive to do something other than engage in
    • eternal and unsuccessful negotiations. However, the Secretary-General and
    • several members of the executive riposted by doing everything they could to
    • break this lawful strike, acting worse than the employer, with a view to
    • isolating section III from the other sections in Bamako which none the less
    • had the same problem. Section III's strike of November 1986 nevertheless
    • succeeded and the other sections understood that the struggle was necessary;
    • it is for this reason that the national strike of December 1986 was held.
  9. 246. According to this open letter, in October 1987, the same problem of
    • salaries in arrears occurred again and, in December 1987, section III wanted
    • to give notice of a strike; this failed when the SNEC executive decided to
    • take action. Indeed, after many hesitations, the SNEC executive decided to
    • lodge a strike notice but this was lifted less than 48 hours later. Section
    • III was therefore obliged to lift its own notice of strike action.
  10. 247. The complainant points out that in February 1988 the situation remained
    • the same and that section III, faithful to the aspirations of its activists,
    • once again gave notice of a five-day strike, from 15 to 20 February; on
    • Wednesday, 10 February, all the representatives from committees in the city of
    • Bamako, convened by the district co-ordination committee, backed section III's
    • plan to carry out the strike, although the representatives of the committees
    • feared that the executive would change its mind. However, according to the
    • open letter, the strike was a success because more than 90 per cent of
    • teachers participated in it. As an immediate consequence of the strike, 71
    • teachers, three workers from the National School of Teachers and the
    • Secretary-General and Acting Secretary-General of section III were
    • transferred. In the case of the two latter officials, their transfer was
    • ordered under the earlier decision of 9 December 1986 to which was attached a
    • transfer application form for use in any updating. However, this document had
    • been declared illegal by the Transit Service and those concerned were unable
    • to procure a transport voucher.
  11. 248. According to the open letter, the reprisals taken in the form of
    • transfers were aimed at discouraging any other strike and therefore any claims
    • or action from the employees. It is for this reason that section III asked the
    • teachers to stay where they were - not out of bravado but because of the
    • significance of what was at stake. A choice had to be made between taking a
    • firm stand so that the law would be respected in the future or foregoing
    • acquired rights and bending to the employers' illegal and arbitrary action -
    • with all the extremely negative repercussions this would have had on trade
    • unionism. Disagreement arose because of differences of opinion between section
    • III, which wanted to take a firm stand, and the Secretary-General of SNEC who,
    • according to this letter, had acted as a strike breaker amongst the teachers
    • who had been transferred, resorting to threats, intimidation and even
    • corruption - not in the interest of the trade union movement but in
    • collaboration with the employer.
    • B. The Government's reply
  12. 249. In its communication of 10 August 1988, the Government acknowledges
    • that the texts regulating freedom of association and the right to strike are
    • indeed the Constitution of 2 June 1974 and its article 13, which guarantees
    • all citizens within the law the right to establish organisations of their own
    • choosing to defend their occupational interests, and Act No. 87-47/AN-RM of 10
    • August 1987, which establishes the legal framework of the right to strike in
    • the public services, as well as Conventions Nos. 87 and 98 ratified by Mali.
    • The Government nevertheless notes that Article 8 of Convention No. 87, whilst
    • recognising the trade union rights of workers' and employers' organisations,
    • obliges them to respect the law of the land, like other persons or organised
    • collectivities.
  13. 250. The Government explains that as regards strikes, Act No. 87-47/AN-RM is
    • the basic law in the country. The said Act determines the circumstances in
    • which the right to strike may be exercised. In this context, it stipulates
    • that strikers must clear the premises and not infringe the right to work
    • (section 11).
  14. 251. The Government goes on to say that in the case in point, several
    • strikers, including the complainants, entered educational establishments and
    • openly sought to prevent non-striking officials from working. Correspondence
    • from the headmasters bears witness to this fact. By acting in this way, the
    • strikers were no longer covered by the legal guarantees and regulations to
    • which they might lay claim because they infringed not only the provisions of
    • section 11 of Act No. 87-47/AN-RM but also those of Article 8 of Convention
  15. No. 87.
  16. 252. As regards the transfer of 84 teachers, including the complainants, the
    • Government explains that under the general regulations of the public service,
    • a public servant may be transferred at any time throughout his career. In the
    • case in point, the transfer of the teaching staff decreed in decision No.
  17. 2560/MEN-DNEF of 9 December 1986 was aimed at redeploying the staff within the
    • department to make up for the lack of teachers in the interior of the country.
    • However, after the trade union federation had intervened, a successful
    • solution was found for those in social need.
  18. 253. However, the Government adds that several teachers, including precisely
    • the complainants, did not take up the posts to which they were appointed
    • before the strike of 15 to 20 February 1988, in spite of the various formal
    • warnings issued during the period preceding the strike. In such a case, the
    • legislation and regulations in force are clear. Under section 12 of Act No.
  19. 84-45/AN-RM of 9 July 1984, amending and supplementing Ordinance No.
  20. 77-71/CMLN of 26 December 1977 regulating the public service, "the public
    • servant shall occupy the post to which he is assigned". He is bound to be
    • punctual in his working hours and to accomplish personally and attentively all
    • obligations incumbent upon him in the course of his duties. The same Act, in
    • section 2, adds to article 122 of the public service regulations a paragraph
    • which reads as follows: "a public servant deserting his post shall also be
    • automatically dismissed", as this is an infringement of the provisions of
    • section 12 above. Furthermore, Circular No. 7/MT-FP-CAB of 28 July 1984
    • concerning methods to enforce dismissal when an official has deserted his
    • post, as defined under the above-mentioned Act, deems that the public servant
    • deserts his post if he does not take up the appointment to which he has been
    • assigned or does not come back to work after a period of leave and, generally
    • speaking, if the public servant takes unauthorised leave - unless he provides
    • justification for his unauthorised absence.
  21. 254. The Government points out that if a public servant finds himself in one
    • of the situations listed in the Circular, he is automatically dismissed
    • without any disciplinary proceedings, apart from a warning allowing the
    • official an opportunity to state his case and informing him of the penalties
    • to which he is liable. The warning notice is a preliminary step before a
    • dismissal for desertion of post; it was therefore sent to the two complainants
    • and contained details on the consequences that might arise from failing to
    • respect the order. The complainants, by refusing to comply with their transfer
    • order, voluntarily put themselves at variance with the legislation in force.
  22. 255. More generally, the Government stresses that binding decisions must be
    • applied immediately because they are presumed to be in conformity with the
    • law; even if the citizen is persuaded that they are illegal, he must comply
    • with them until they have been examined by the courts. It is only after having
    • carried out an order that he might refer the matter to the courts if he
    • challenges the rights of the administrative authority.
  23. 256. In any case, the fact that the teachers did not agree with their
    • transfer was not enough to justify their refusal to take up the post to which
    • they had been assigned, even if later they were intending to appeal to the
    • competent legal authority. Furthermore, they did their utmost to disrupt the
    • normal course of education during a strike which took place 15 months after
    • they had been notified of their transfer. The Government adds, for information
    • purposes, that the two complainants received their salaries until they were
    • removed from the public service.
  24. 257. Concerning the validity of the transport voucher, the Government
    • stipulates that a binding decision is valid for an indeterminate period of
    • time and that its effects can only cease if the administration decides to
    • repeal or withdraw the decision. In other words, as the decision of transfer
    • authorising the issue of a transport voucher by the Transit Service had not
    • been revoked by the Ministry of National Education, it remained valid as long
    • as the persons concerned had not benefited from the right to use state means
    • to take up the new posts. According to the Government, the administrative
    • transit service could not, contrary to the complainants' allegations, be
    • opposed to such an action. Furthermore, the complainants only approached the
    • Transit Service one week after the warning they had received had expired,
    • which demonstrates their unequivocal intention not to comply with the order.
  25. 258. Concerning the case of Issa N'Diaye, the Government states that this is
    • a specific case which differs from that of the other complainants. Mr. Issa
    • N'Diaye had been transferred from a school to another establishment in the
    • same town (Bamako). Although he was previously consulted before the decision
    • to transfer him was taken, he refused to take up his new post, i.e. Director
    • of Studies at the National School of Engineers. His refusal to take up the
    • post to which he was assigned, in spite of the warnings he received,
    • constitutes, under the legislation on desertion of post, a serious
    • misdemeanour which is penalised by automatic dismissal. The decision to
    • transfer the person in question, under decision No. 0084/MEN-DNESPS of 22
    • January 1988, was taken before the strike of 15 to 20 February 1988, to which
    • the complainants seem to link all the administrative decisions.
  26. 259. Concerning the cases of Charles Danioko and Komakan Keita, the
    • Government admits that they were arrested by the police during a student
    • demonstration; it explains that they were arrested for having encouraged the
    • students to go on a march. However, after inquiries made and steps taken by
    • the National Union of Malian Workers and the National Trade Union of Education
    • and Culture, they were purely and simply released.
  27. 260. In conclusion, the Government considers that, in the light of all that
    • has been described above, the complainants, by subordinating the
    • administrative decisions to the strike, clearly acted in bad faith, especially
    • in view of the fact that all the documents show that the decisions were taken
    • before the strike. Furthermore, not only were the complainants satisfied with
    • holding the law of their country up to ridicule, they set out to spread
    • confusion in the schools to which they no longer belong in any capacity. The
    • Government considers that Mali is a State which respects the law and has
    • always correctly applied the Conventions it has ratified. In this context, the
    • body of national law which contains the principles of these instruments
    • guarantees basic human rights to its citizens in conformity with the ILO's
    • objectives.

C. The Committee's conclusions

C. The Committee's conclusions
  1. 261. The Committee notes that this complaint concerns reprisals allegedly
    • taken against trade union activists and officials by the Government, following
    • several strikes called by Mali teachers to put forward economic and social
    • claims, on the grounds that their salaries were in arrears for several months
    • during 1986, 1987 and 1988.
  2. 262. The Committee has noted the detailed explanations provided both by the
    • complainants and the Government on this matter. First of all, it observes that
    • under Mali legislation, strikes are authorised in the teaching sector after
    • notice has been given, in conformity with the principles generally recognised
    • in the field of freedom of association.
  3. 263. In the second place, however, it would seem that in this case,
    • according to the complainants, although the strikers did give strike notice,
    • the SNEC executive sought to break the strike by changing its mind and lifting
    • the notice. However, according to the complainants, 90 per cent of teachers
    • took part in the protest action.
  4. 264. On the other hand, according to the Government, the strikers infringed
    • the right to work of those who were not striking. The Government acknowledges
    • that the two trade union officials who are complainants in this case were
    • transferred and then dismissed after the strikes; however, it states that they
    • were dismissed because they refused to take up their posts. It also mentions
    • that another teacher, transferred before the strike in February 1988, was
    • also dismissed for failure to take up his post. Finally, it confirms the
    • arrest of two teachers during a student march but states that the two persons
    • concerned were later released after the national trade union organisations had
    • interceded on their behalf.
  5. 265. In similar cases concerning violations of the right to strike, the
    • Committee has pointed out, on many occasions, that the right to strike is one
    • of the essential means through which workers, including teachers, should be
    • able to promote and defend their occupational interests and that the
    • prohibition of strike pickets is justified only if the strike ceases to be
    • peaceful. (See 217th Report, Case No. 1089 (Upper Volta), para. 240.)
  6. 266. The Committee also recalls the importance it attaches to the principle
    • that nobody should be subjected to discrimination in employment on account of
    • his legitimate trade union membership or activities, including the exercise of
    • the right to strike to settle collective disputes concerning claims of an
    • economic and social nature.
  7. 267. Indeed, one of the basic 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, and that 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' organisations shall have the right to elect their
    • representatives in full freedom.
  8. 268. In the present case, the Committee notes that, at first, the Government
    • ordered many transfers during the school year, following an initial strike in
    • December 1986; it subsequently made further transfers and ordered dismissals
    • and arrests following strike action in February 1988. In these circumstances,
    • the Committee cannot be satisfied with the Government's comments that the
    • strike infringed the right to work of those not striking, even more so since
    • the Government does not deny that teachers had not been paid their salaries
    • for several months.
  9. 269. The Committee considers that the transfers and dismissals carried out
    • in this case constitute an infringement of freedom of association and it
    • requests the Government to ensure the reinstatement of the dismissed teachers,
    • including Modibo Diara and Youssouf Ganaba.
  10. 270. As regards the arrest of Charles Danioko and Komakan Keita for having
    • organised a march of students from their school to support the teachers, the
    • Committee, whilst noting with concern that the Government itself acknowledges
    • that those in question were arrested by the police for having encouraged the
    • students to go on a march, observes that these two teachers were released
    • after the national trade union organisations had intervened.
  11. 271. In the Committee's opinion, the right to strike and that of organising
    • trade union movements or solidarity marches are essential elements of trade
    • union rights, and the measures taken by the authorities to ensure the
    • observance of the law should not therefore result in preventing unions from
    • organising meetings during labour disputes. (See Second Report, Case No. 28
    • (United Kingdom/Jamaica), para. 68; 22nd Report, Case No. 148 (Poland), para.
  12. 102; and 71st Report, Case No. 273 (Argentina), para. 75.)
  13. 272. As it is pointed out in the resolution concerning trade union rights
    • and their relation to civil liberties, adopted by the International Labour
    • Conference at its 54th Session in 1970, the absence of civil liberties removes
    • all meaning from the concept of trade union rights, and the rights conferred
    • upon workers' and employers' organisations must be based on respect for civil
    • liberties.
  14. 273. In the present case, the Committee notes that the students' and
    • teachers' march was motivated by economic and social claims because the
    • payment of teachers' salaries was long overdue. In these circumstances, the
    • Committee considers that the arrest of trade unionists, for the mere reason
    • that they had organised a peaceful march to make economic and social claims,
    • constitutes a violation of freedom of association.

The Committee's recommendations

The Committee's recommendations
  1. 274. In the light of its foregoing conclusions, the Committee invites the
    • Governing Body to approve the following recommendations:
      • a) The Committee recalls that the right to strike is one of the essential
    • means through which workers and their organisations, including teachers,
    • should be able to promote and defend their occupational interests.
      • b) The Committee also recalls that the right to strike and that of
    • organising union meetings and solidarity marches are essential elements of
    • trade union rights.
      • c) The Committee considers that the anti-union reprisals, especially the
    • transfers, dismissals and arrests of trade unionists decided upon by the
    • Government of Mali following strikes called by teachers because their salaries
    • were several months' overdue between 1986 and 1988, constitute an infringement
    • of the freedom of association of these teachers.
      • d) The Committee requests the Government to ensure the reinstatement of
    • those teachers dismissed as a result of lawful trade union activities,
    • including Messrs. Modibo Diara and Youssouf Ganaba, trade union officials of
    • section III of the SNEC in the Bamako district, and to keep it informed of
    • measures taken in this respect.
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