Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 300, Noviembre 1995

Caso núm. 1791 (Chad) - Fecha de presentación de la queja:: 14-JUN-94 - Cerrado

Allegations: Violation of the right to demonstrate on May Day, occupation of trade union premises and regulation of the right to strike in the civil service

1. 326. In a communication dated 14 June 1994, the Trade Union Confederation of Chad (UST) presented a complaint of violation of freedom of association against the Government of Chad. The Government furnished its comments and observations on this case in a communication dated 4 May 1995.
2. 327. Chad has ratified both the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87) and the Right to Organize and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

1. 328. In its communication of 14 June 1994, the Trade Union Confederation of Chad (UST) states that the Government prohibited the UST from organizing a demonstration to celebrate May Day 1994, occupied the Labour Centre - headquarters of the UST thereby paralysing the organization's activities up until 10 May 1994, and adopted a Decree to regulate the right to strike in the civil service which was a de facto negation of this right for this category of workers.
2. 329. The complainant organization points out that article 35 of the transitional Charter which currently functions as the Constitution stipulates that "freedom of association is guaranteed to all workers, with the exception of military personnel, and workers may organize freely into trade unions and exercise their activities under the provisions of the legislation in force". Furthermore, Act No. 7/66 to establish a Labour and Social Welfare Code as well as Ordinance No. 15/PR/86 to establish an Act governing the civil service recognize freedom of association and trade union rights.
3. 330. However, according to the complainant organization, the Government prohibited the demonstration convened on May Day 1994 and ordered the occupation of the Labour Centre. In a letter No. 199/UST/94 of 25 April 1994, the UST had requested authorization from the Government to organize a march from the Labour Centre to Independence Square, the place chosen for the May Day meeting. Considering that this march would be inadvisable but without giving any reasons, the Minister of the Interior opposed the request in a reply No. 356/MIS/DG/DI/94 dated 30 April 1994, and proposed instead the holding of a meeting at the Labour Centre, which was accepted by the trade unions. But from the early hours of the morning of the meeting, and without any explanation, the Government ordered the occupation of the Labour Centre by members of the police and gendarmerie, who prevented any access to the premises by the workers. The security forces were kept at the Labour Centre until 10 May 1994, thus paralysing the UST's activities.
4. 331. Furthermore, according to the complainant organization, the Government has regulated the right to strike in the civil service by Decree No. 096/PR/MFPT/94, dated 29 April 1994. The complainant organization explains that the transitional Charter and Ordinance No. 15 to establish a general Act governing the civil service stipulate that the right to strike shall be exercised within the framework of the law. Thus, according to the complainant, the regulation of the right to strike in the civil service falls within the competence of Parliament and not the Executive. Furthermore, it recalls that strike procedures in the private sector are determined by Act No. 7/66 to establish a Labour and Social Welfare Code and not by a Decree. As to the substance, the Decree provides for the intervention of the conciliation and arbitration bodies within the framework of the settlement of collective disputes. Section 5 stipulates that an Order of the Minister of the Civil Service shall determine the membership and functioning of these bodies. The choice of the membership of these bodies is left to the discretion of the Government. Furthermore, the arbitration procedure leads in all cases to an executory ruling (section 9), which is tantamount to a pure and simple prohibition of the right to strike. Moreover, the Decree makes provision for an advance notice of eight days instead of five, contrary to the constant case-law observed in this respect in Chad since well before independence. According to the UST, all these provisions are serious violations of freedom of association and trade union rights.
5. 332. Subsequently, in a communication dated 20 July 1994, the UST states that a transitional social pact has just been concluded and it encloses a copy of this pact signed by the Government and the trade union organizations, i.e. the Trade Union Confederation of Chad, represented by its Secretary General and the Free Confederation of Workers of Chad, represented by its President. This pact is dated 1 July 1994.

B. The Government's reply

1. 333. In its reply of 4 May 1995, the Government points out, in connection with the prohibition placed on the demonstration to mark May Day and the occupation of the Labour Centre, that these events were purely circumstantial; according to the Government, the security forces had information indicating that the demonstration would degenerate into violence. As soon as these risks had disappeared, the measures were lifted.
2. 334. On the other hand, as regards the regulation of the right to strike in the civil service, the Government confirms that it has indeed adopted Decree No. 96/PR/MFPT/94 of 29 April 1994. It believes that this is a matter of substance which requires full attention. According to the Government, there was never any intention of calling into question the right to strike which is formally granted to civil servants, but this right must be exercised within the framework of regulations which unfortunately did not exist, since the phenomenon of strikes began to appear in Chad on a permanent basis only from 1990 following the democratic process initiated by President Idriss Deby. There was thus a legal void which needed to be filled. The Government points out that the UST incorrectly cites the provisions of the General Act governing the civil service, by claiming that the right to strike must be exercised within the framework of the law and not a Decree, whereas in accordance with section 10 of the said Act , "civil servants shall exercise the right to strike within the framework of the laws which regulate it". According to the Government, this is a generic term which encompasses Acts, Decrees, Orders and Decisions on the subject. This is why the argument about an Act or a Decree is only of secondary importance since, within the ILO, some member States regulate the exercise of the right to strike by Acts, and others by Decree. Furthermore, examples can be found in the compilations of laws, regulations and Decrees published by the ILO. The Government's concern was for all the means of conciliation to be exhausted before recourse to a work stoppage, which must be considered as the final recourse, particularly since these work stoppages may last several months and increase the difficulties of governments to meet their commitments, in particular of a social kind. The Government adds that the regulation of the exercise of the right to strike does not mean its prohibition. It believes that there must be a text which fixes the methods of strike, advance notice, duration, compulsory minimum services to be provided during a strike and recourse to requisitioning. Indeed, in the private sector there is a procedure which regulates collective labour disputes (Act No. 7/66 to establish a Labour Code), and this is now the case in the public sector. In any event, the Government of Chad and the UST, in a joint communiqué, signed on 2 June 1994, the effects of which are still in force, agreed to submit the matter to arbitration by the competent jurisdictions in the country.
3. 335. The Government concludes by stating that it would like to see the economic situation in the country improve through the combined efforts of all parties so that its commitments both at home and abroad can be respected.

C. The Committee's conclusions

1. 336. The Committee notes that this case concerns allegations of infringements of the right to demonstrate on May Day, the occupation of the Labour Centre by the security forces and the adoption by the Government of a Decree to regulate the right to strike in the civil service.
2. 337. As regards the violations of the right to demonstrate to mark May Day 1994 and the occupation of the Labour Centre by the security forces, the Committee notes that the complainant organization states that the UST had requested authorization from the Government to organize a march and that the Government had replied that such a march was inappropriate and that it proposed instead the holding of a meeting at the Labour Centre, which the UST accepted. However, without giving any explanation, the Government ordered the occupation of the Labour Centre by the police and the gendarmerie between 1 and 10 May, thus paralysing the activities of the UST.
3. 338. The Government does not deny the facts but, according to it, the security forces had information that the demonstration would become violent. It adds that once these risks had disappeared, the measures were lifted.
4. 339. The Committee has always emphasized the fact that the right to organize public meetings and processions particularly on the occasion of May Day constitutes an important aspect of trade union rights. (See Digest of decisions and principles of the Freedom of Association Committee, 3rd edition, 1985, para. 155.) The Committee has however recalled that trade union organizations must respect the general provisions relating to public meetings which are applicable to all and must respect the reasonable limits which may be fixed by the authorities to avoid disturbances in public places. Thus the Committee has accepted that it is for the Government, which is responsible for the maintenance of public order, to decide, in the exercise of its powers in the field of security, whether meetings, including trade union meetings, may, in particular circumstances, endanger public order and security, and to take any necessary preventive measures. (See Digest, op. cit., para. 161.)
5. 340. In this case, the Committee observes that the Government prohibited the peaceful march marking May Day 1994 and requested the participants simply to hold a meeting at the Labour Centre. Furthermore the Committee notes that the trade unions accepted the Government's proposal. However, this was not the only measure taken by the Government, since it also ordered the occupation by the security forces of the Labour Centre, from the early hours of 1 May, thus preventing access to the Labour Centre by the workers in celebration of May Day. Moreover, this occupation lasted ten days, which prevented the UST from carrying out its activities.
6. 341. The Committee considers that the measures taken by the Government are a serious infringement of the exercise of trade union rights. It therefore requests the Government in future to allow trade union organizations to organize any peaceful demonstrations they wish to hold.
7. 342. Furthermore, the Committee recalls the essential importance which it attaches to the inviolability of trade union premises, a civil liberty which the International Labour Conference has considered as essential to the exercise of trade union rights (see the 1970 resolution concerning civil liberties and their relationship to trade union rights). The Committee considers that the occupation by the security forces of trade union premises, in this case the Labour Centre, without a court warrant authorizing such occupation, is a serious interference by the authorities in trade union activities. It therefore requests the Government to refrain in future from having recourse to such measures.
8. 343. Finally, as regards the regulation of the right to strike in the civil service, the Committee observes that a transitional social Pact was signed on 1 July 1994. In this Pact, the UST and the Free Confederation of Workers of Chad accepted (article 2, paragraph 3) to respect the provisions of Ordinance No. 015/PR/86 to establish a General Act governing the civil service. (Section 10 stipulates that civil servants shall exercise the right to strike within the framework of laws which regulate it.) Section 2(4) of the Pact stipulates that trade unions should refrain from recourse to strike action during the transition period, except in the case provided for in section 6 of the Pact, namely in the event of an infringement of the provision which stipulates that the transition Government shall undertake to cancel all measures to reduce salaries and remunerations, to lift the freeze on the financial effects of promotions, to re-establish family and pre-natal allowances and to increase by 10 per cent the salaries and remunerations of state employees from 1 July 1994.
9. 344. As regard the substance of the Decree No. 96/PR/MFPT/94 which regulates the exercise of the right to strike in the civil service, the Committee notes that it provides for conciliation and arbitration machinery prior to the initiation of a strike, as well as the obligation to give advance notice of eight days prior to any strike action. Two bodies are responsible for the settlement of disputes: the Joint Conciliation Council and the Arbitration Council, following referral by the Joint Council. The membership of these bodies is fixed by order of the Minister. The Decree also provides for a compulsory minimum service during strike action in some essential public services the interruption of which would seriously disrupt the life of the national community, in particular in the financial services, hospital services, post and telecommunication services, television and radio, the central services of the Ministry of Foreign Affairs and Cooperation and the services of the Inter-Regional Labour Inspectorate. In the event of refusal to provide this minimum service, public employees shall be requisitioned individually under the provisions of this Decree.
10. 345. The Committee has acknowledged that the right to strike can be restricted or even prohibited in the civil service or in essential services in so far as a strike there could cause serious hardship to the national community and provided that the limitations are accompanied by certain compensatory guarantees. (See, op. cit., para. 393.) However, the Committee has also emphasized that the restrictions or prohibitions of the right to strike in the civil service should be limited to civil servants in positions of authority who act on behalf of the State or in essential services in the strict sense of the term, i.e. services the interruption of which would endanger the life, personal safety or health of the whole or part of the population.
11. 346. As regards the question of the minimum service to be maintained in activities the complete interruption of which would jeopardize the continuity of the essential public services by creating very serious disruptions, the Committee considers that a minimum service could be acceptable as a possible alternative in situations where a total ban of the strike action would not appear to be justified. In effect, without calling into question the right to strike of the large majority of workers, one might consider ensuring that users' basic needs are met or that facilities operate safely or without interruption. (See 299th Report, Case No. 1782 (Portugal), para. 324.) In such cases, the Committee is of the view that the workers' organizations concerned should be able to participate along with employers and the public authorities in the determination of the minimum services.
12. 347. In the present case, to the extent that the arbitration procedure does not prohibit strike action, the Committee believes that the provisions respecting conciliation and arbitration prior to strike action by public servants as well as those concerning eight days' advance notice do not in themselves seem to be an infringement of freedom of association, subject to the membership of the conciliation and arbitration bodies to be determined subsequently by ministerial order. As regards the matter of determining the minimum services to be maintained in the event of a strike, the Committee recalls the importance which it attaches to the fact that a minimum service should only be maintained in the limited situations where it would be justified. It also insists on the importance that it attaches to the establishment of mechanisms determined in consultation with the workers' and employers' representatives.
13. 348. Observing that both the complainant organization and the Government have stated that they reached agreement in a joint communiqué dated 2 June 1994 to refer the matter of this Decree to arbitration by the competent jurisdictions in the country, the Committee trusts that any application of the exercise of the right to strike will take account of the above-mentioned principles of freedom of association and it requests the Government to keep it informed of the arbitration procedure initiated with the competent national authorities. The Committee draws this aspect of this case to the attention of the Committee of Experts on the Application of Conventions and Recommendations.

The Committee's recommendations

1. 349. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) Recalling the importance which it attaches to the right to organize public meetings and processions particularly to mark May Day, which is an important aspect of trade union rights, the Committee urges the Government to ensure in future that trade union organizations are permitted to organize any peaceful demonstrations they wish to hold.
   • (b) Emphasizing the essential importance of the inviolability of trade union premises and believing that the occupation of trade union premises for ten days constitutes a serious interference by the authorities in trade union activities, the Committee requests the Government to refrain in future from recourse to such measures without a judicial warrant and to intervene only if it is convinced that there are solid reasons for supposing that the necessary evidence will be found on the spot for the initiation of proceedings in respect of offences committed under common law.
   • (c) As regards the Decree to regulate the right to strike in the civil service, the Committee recalls that the restriction, or even prohibition, of the right to strike in the civil service should be limited to civil servants in positions of authority and acting on behalf of the State or in essential services in the strict sense of the term, and that workers' organizations should be able to participate along with employers and the public authorities in the determination of the minimum services. The Committee, in expressing the hope that the Decree respecting the regulation of the right to strike in the civil service will be applied with account being taken of the principles of freedom of association, requests the Government to keep it informed of the outcome of the arbitration procedure initiated with the competent national jurisdictions.
   • (d) The Committee draws the legislative aspect of this case to the attention of the Committee of Experts on the Application of Conventions and Recommendations.