Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 359, Marzo 2011

Caso núm. 2450 (Djibouti) - Fecha de presentación de la queja:: 04-AGO-05 - Cerrado

Allegations: Refusal to reinstate workers dismissed following a strike in 1995 despite an agreement reached in 2002; anti-union dismissal of a postal service union leader; need to amend certain provisions of the Labour Code; objection to nominations for the Workers’ delegation of Djibouti to the International Labour Conference

1. 371. The Committee last examined this case at its March 2010 meeting [see 356th Report, paras 667–685].
2. 372. The Government sent its observations in a communication dated 23 November 2010.
3. 373. Djibouti 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. Previous examination of the case

1. 374. During its previous examination of the case in March 2010, the Committee made the following recommendations [see 356th Report, para. 685]:
   • (a) With regard to the list of workers dismissed in 1995 and not yet reinstated, the Committee urges the Government to take all the necessary steps, in accordance with the commitment it made before the direct contacts mission, to carry out checks and provide clarifications on the situation of the workers mentioned both in the Committee’s previous recommendations and by the complainant organizations.
   • (b) The Committee once again requests the Government to make every effort to follow-up on the commitments made before the direct contacts mission concerning the reinstatement of the workers dismissed in 1995 who have not yet been reinstated, the payment of compensation to these workers and arrears payments. The Committee urges the Government to keep it informed of the situation of the negotiations and of the progress made.
   • (c) The Committee is bound to urge the Government once again to inform it of the current situation of the trade unionist Mr Hassan Cher Hared and of the results of any inquiry concerning his dismissal in 2006.
   • (d) The Committee once again urges the Government to indicate the steps taken to guarantee the implementation of objective and transparent criteria for the nomination of Workers’ representatives at the International Labour Conference.
   • (e) The Committee once again urges the Government to keep it informed of any steps taken to adopt, without delay, the amendments requested to the Labour Code which have been the subject of comments by the ILO’s supervisory bodies for many years.
   • (f) The Committee once again urges the Government to provide information, without delay, on the establishment and composition of the CNTEFP.
   • (g) In general, the Committee notes with deep concern the obvious unwillingness on the part of the Government to improve the situation and resolve the pending issues in this case. The Committee once again urges the Government to give priority to promoting and safeguarding freedom of association and to urgently implement the specific commitments that it made before the direct contacts mission to resolve all issues and therefore facilitate a transparent and sustainable social dialogue in Djibouti. The Committee expresses in the strongest of terms its expectations that the Government will take concrete measures without delay in this regard.

B. The Government’s reply

1. 375. In a communication dated 23 November 2010, the Government provides a partial reply to a number of points raised by the Committee.
2. 376. As regards the issue of the workers dismissed in 1995 following a strike who have not yet been reinstated despite an agreement reached on 8 July 2002 (recommendations (a) and (b)), the Government lists nine workers who were reinstated in 2002 and 2005, two workers whose reinstatement is under negotiation (Mariam Hassan Alin and Habib Ahmed Doualeh), a list of workers who do not wish to be reinstated (Adan Mohamed Abdou and Kamil Diraneh Hared), and also a list of workers about whose situation it has no information (Abdoufathah Hassam Ibrahim, Houssien Dirieh Gouled, Moussa Waiss Ibrahim, Abdillahi Aden Ali, Bouha Daoud Ahmed, Souleiman Mohamed Ahmed and Mohamed Doubad Waiss). The Government also refers to the recommendations made by the direct contacts mission in indicating that it agrees to the request concerning the reinstatement of the following persons present on the national territory to their original department or in another government department, as well as agreeing to pay contributions to the National Social Security Fund to enable them to qualify for or receive a standard retirement pension (Adan Mohamed Abdou, Kamil Diraneh Hared, Habib Ahmed Doualeh and Ahmed Djama Egueh). The Government also points out that Ahmed Djama Egueh and Kamil Diraneh Hared have reached retirement age. However, as regards the mission’s recommendation concerning the payment of salary in arrears as from 1995, the Government states that it definitively rejects this request.
3. 377. As regards the case of Mr Hassan Cher Hared (recommendation (c)), the Government firstly points to the problems faced by the postal service in Djibouti over recent years, the efforts made by the State to modernize the postal sector and the positive results of such a policy, which has seen the institution announce a positive annual balance during the last year. As regards the situation of Mr Cher Hared, the Government declares that the allegations, forwarded by the International Trade Union Confederation (ITUC), are far removed from the reality of the local situation and are aimed at supporting his status as asylum-seeker in Switzerland.
4. 378. Finally, as regards the question of participation in the International Labour Conference (recommendation (d)), the Government indicates that it invites recognized organizations to freely appoint their representatives and that such a choice is therefore a matter for the social partners. For the employers, the Business Union of Djibouti (UED) is concerned. For the workers, the Government states that there are two confederations. The first of these is the General Union of Djibouti Workers (UGTD), led by Mr Abdou Sikieh Dirieh, which held its congress in August 2010 in the presence of numerous international observers (Arab Labour Organization (ALO), International Confederation of Arab Trade Unions (ICATU), Community of Sahelo-Saharan States (CEN-SAD), Organization of African Trade Union Unity (OATUU) and the World Federation of Trade Unions (WFTU)), with the exception of the ITUC and the International Labour Organization (ILO). The Government indicates that the second organization, the Djibouti Union of Workers (UDT), is going through a serious leadership crisis involving its president, Mr Mohamed Youssouf Mohamed, and its General Secretary, Mr Adan Mohamed Abdou, which is paralysing it. The Government indicates that if the UDT does not hold free, transparent and open elections in the immediate future, it may be excluded from all tripartite bodies and will no longer be able to take part in national and international meetings.
5. 379. As regards the requested amendments to the Labour Code (recommendation (e)), the Government indicates that, at its meeting of 19 October 2010, the Council of Ministers adopted amendments to three sections of the Labour Code, namely sections 41, 214 and 215. The Government adds that the amendments have been approved by the National Council for Labour, Employment and Vocational Training (CNTEFP) and demonstrate the Government’s willingness to bring the Labour Code into line with the provisions of international Conventions relating to freedom of association.
6. 380. As regards the establishment of the CNTEFP (recommendation (f)), the Government points out that the President of the Republic enacted Decree No. 2008-0023/PR/MESN establishing the CNTEFP, which is chaired by the Minister of Employment and the secretarial function of which is provided by the Directorate of Labour and Social Partner Relations. The Government also refers to a new development in the form of parliamentary representation within the CNTEFP.

C. The Committee’s conclusions

1. 381. The Committee recalls that the issues pending in the present case, which it has been examining since 2005, are as follows: refusal to reinstate workers dismissed following a strike in 1995 despite an agreement reached in 2002; the situation of a trade union leader of the Djibouti postal service who was allegedly dismissed on anti-union grounds; the need to amend certain provisions of the Labour Code; nominations for the Workers’ delegation of Djibouti at the International Labour Conference; and the establishment of the CNTEFP.
2. 382. As regards the issue of the workers dismissed in 1995 following a strike who have not yet been reinstated despite an agreement reached on 8 July 2002, the Committee recalls that the Government made a commitment vis-à-vis the direct contacts mission of January 2008 to carry out the necessary checks into the situation of the workers on the basis of the list provided by the mission containing the names of workers sent by the complainant organizations. The Committee notes the Government’s indication in its communication that it has no information concerning any of the workers whose names were supplied by the mission (Abdoufathah Hassam Ibrahim, Houssien Dirieh Gouled, Moussa Waiss Ibrahim, Abdillahi Aden Ali, Bouha Daoud Ahmed, Souleiman Mohamed Ahmed Mohamed Doubad Waiss, Abdourachid), except for two workers whose reinstatement it indicates is under negotiation (Ms Mariam Hassan Alin and Mr Habib Ahmed Doualeh). The Committee requests the Government to supply information on the situation of Ms Mariam Hassan Alin and Mr Habib Ahmed Doualeh. As regards the workers whose names have been supplied by the complainant organizations and concerning whose situation it states it has no information, the Committee expects the Government to take all necessary steps to resolve their situation without delay, at least for those who reside within the national territory or have indicated their wish to be reinstated.
3. 383. The Committee also notes the Government’s assertion that Mr Adan Mohamed Abdou, UDT General Secretary, and Mr Kamil Diraneh Hared, UGTD General Secretary, have declined to be reinstated. The Committee recalls that it previously noted that the complainant organizations disputed the Government’s statement to the effect that the latter had declined to be reinstated. The complainant organizations asked the Government to furnish proof of its statement and asserted that the authorities had never had any intention of reinstating these two persons. The Committee further notes the Government’s indication in its communication that it is willing to accept the recommendation made by the direct contacts mission by reinstating the following persons in their original department or in another government department: Messrs Adan Mohamed Abdou, Kamil Diraneh Hared, Habib Ahmed Doualeh and Ahmed Djama Egueh. The Government adds that it agrees to pay social security contributions to enable the latter to qualify for or receive a standard retirement pension. Finally, it points out that Mr Ahmed Djama Egueh and Mr Kamil Diraneh Hared have reached retirement age. The Committee notes contradictions in the Government’s communication and requests it to supply detailed information without delay on the situation of Mr Adan Mohamed Abdou and Mr Kamil Diraneh Hared, concerning, on the one hand, that it agrees to their reinstatement to their original department or another government department together with payment of their social security contributions and, on the other hand, that these two men have declined to be reinstated. If the Government maintains that they have declined to be reinstated, the Committee expects it to provide details accordingly.
4. 384. The Committee recalls the Government’s statement to the direct contacts mission that it was not opposed to the principle of the payment of compensation to the workers since they had agreed to be reinstated to the postal service and accordingly the Ministry of Employment and National Solidarity had been instructed to conduct individual negotiations. The Committee notes with deep regret the Government’s statement that it definitively rejects the recommendation of the direct contacts mission concerning the payment of salary in arrears since 1995. The Committee recalls that, in cases of dismissal of trade unionists on account of their trade union membership or activity, the Committee invariably calls for their reinstatement in their posts without loss of earnings in addition to the appropriate legal penalties to prevent such a situation from recurring in future. Moreover, should reinstatement prove impossible, steps should be taken to ensure that they receive adequate compensation for the damage suffered that would represent a sufficiently dissuasive sanction. The Committee expects that the Government reconsider its position.
5. 385. The Committee recalls that it considered the dismissal of UDT international relations secretary Mr Hassan Cher Hared, which occurred in September 2006, to be a serious case and urged the Government to launch an inquiry without delay into this dismissal. If the dismissal proved to be based on his union activities, the Committee called for his reinstatement and for the payment of any salary in arrears. The Committee notes once again with deep regret that the Government has not launched the requested inquiry into his dismissal and again merely denies the allegations, stating that the allegations, as forwarded by the ITUC, are far removed from the reality of the local situation. The Committee repeats once again its request to the Government to launch an inquiry without delay into the circumstances of the September 2006 dismissal of Mr Hassan Cher Hared and to inform it of the results and of any follow-up action taken.
6. 386. The Committee recalls that one of the pending issues relates to interference by the Government in the affairs of the UDT, particularly the nomination of representatives taking the place of the legitimate union officers in the Djiboutian delegation to the International Labour Conference. During its previous examination of the case, the Committee noted with concern that the Workers’ delegation to the 98th Session (June 2009) of the International Labour Conference had been the subject of a new objection to the Credentials Committee and that, in its conclusions, the Credentials Committee regretted the blatant lack of progress on the matter since 1997 and noted that it had no new information at its disposal that might answer the questions raised the previous year. The Credentials Committee again expressed serious doubts as to whether the nomination of the UDT representative to the Conference had been truly independent and concluded that the nomination of the UDT representative to future sessions of the Conference should be carried out in consultation with the UDT as currently led by Mr Mohamed Abdou in the capacity of General Secretary. The Committee also previously noted that the nomination of the UGTD representative to the same session of the Conference was also questioned by the Credentials Committee, which concluded that the Government had not fulfilled its obligations under article 3 of the Constitution because it had not nominated Workers’ delegates representing the workers of Djibouti in agreement with the most representative workers’ organizations.
7. 387. The Committee notes with concern that the Workers’ delegation of Djibouti to the 99th Session (June 2010) of the International Labour Conference has been the subject of a new objection to the Credentials Committee. The Committee notes that the Credentials Committee indicates, in its conclusions, that the information supplied by the Government shows that the latter has insisted for years on applying the same procedure for the nomination of worker representatives, despite repeated recommendations made by the Credentials Committee and other ILO supervisory bodies. The Credentials Committee observes with regret that it has no new information at its disposal that might answer the questions which it has raised in recent years. The Credentials Committee therefore again expresses grave doubts as to whether the nomination of UDT and UGTD representatives is truly independent and, consequently, whether the Workers’ delegation to the present session of the Conference is truly representative [see Provisional Record No. 5C, para. 33]. Furthermore, the Committee notes that the Credentials Committee asked the Government of Djibouti to submit to the ILO Director-General by the end of 2010 a detailed report on the progress made in Djibouti concerning the establishment of criteria for the independent representation of workers in the country and the specific steps taken towards a definitive resolution of the problem [see para. 10].
8. 388. The Committee notes that the Government merely indicates once again in its communication that it invites recognized organizations to freely choose their representatives. For the employers, the UED is concerned. For the workers, the Committee notes the Government’s statement that there are two confederations. The first of these is the UGTD, led by Mr Abdou Sikieh Dirieh, which held its congress in August 2010 in the presence of numerous international observers (ALO, ICATU, CEN-SAD, OATUU and WFTU), with the exception of the ITUC and the ILO. The Committee notes the Government’s indication that the UDT is going through a serious leadership crisis involving its President, Mr Mohamed Youssouf Mohamed, and its General Secretary, Mr Adan Mohamed Abdou, which is paralysing it. The Committee notes the Government’s indication that if the UDT does not hold free, transparent and open elections in the immediate future, it may be excluded from all tripartite bodies and will no longer be able to take part in national and international meetings.
9. 389. Moreover, the Committee expresses its concern at the latest allegations of interference and harassment by the Government towards the UDT which it is examining in a new case [see Case No. 2753, paras 395–413].
10. 390. The Committee firmly expects the Government to guarantee the right to hold free and transparent elections to all trade unions in the country, particularly the UDT and its affiliated organizations. Such elections will enable the workers to choose their representatives in full freedom, without interference by the authorities, whether it is deciding the terms of eligibility for union officers or holding the actual elections. Thus, in a framework which fully respects the capacity of workers’ organizations to act in total independence, the Government will be in a position to determine, together with these organizations, objective and transparent criteria for nominating worker representatives to national tripartite bodies and to the International Labour Conference.
11. 391. As regards the allegations concerning the adoption of a new “anti-social” Labour Code, the Committee asked the Government in its previous recommendations to amend sections 41, 42, 214 and 215 of the Labour Code. The Committee notes with interest the indication that the Council of Ministers, at its session of 19 October 2010, adopted amendments to three sections of the Labour Code, namely sections 41, 214 and 215, so as to bring them into line with international Conventions. The Committee also notes the indication that the amendments were approved by the CNTEFP. The Committee urges the Government to inform it when the legislative text amending sections 41, 214 and 215 of the Labour Code enters into force and to send a copy of the said text.
12. 392. The Committee recalls that its previous recommendations also referred to the CNTEFP. The Committee previously urged the Government to supply information on the establishment and composition of this body. The Committee notes that the Government reiterates that the CNTEFP was established pursuant to Presidential Decree
13. No. 2008-0023/PR/MESN, that it is chaired by the Minister of Employment and that its secretarial function is provided by the Directorate of Labour and Social Partner Relations. The Government refers to a new development in the form of parliamentary representation within the CNTEFP. The Committee urges the Government to supply detailed information on the composition of the CNTEFP and how it functions, in particular the manner in which it is consulted on legislative issues and those affecting the interests of the representative organizations of employers and workers.
14. 393. In general, the Committee notes the efforts made by the Government to respond to certain questions which have been under examination in the present case for many years. It notes visible progress in the form of the legislative amendments requested by the ILO supervisory bodies. The Committee nevertheless notes with great concern that questions remain regarding a number of serious issues. The Committee firmly expects the Government to show real willingness to improve the situation in this case by making specific and definitive responses to its recommendations. The Committee therefore firmly urges the Government once again to take specific steps towards this end without delay and thus facilitate transparent and sustainable social dialogue in Djibouti. Taking into account the history of this case and the questions still pending, the Committee requests the Government to accept a tripartite mission.

The Committee's recommendations

1. 394. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee notes the efforts made by the Government to respond to certain questions which have been under examination in the present case for many years. The Committee notes visible progress in the form of the legislative amendments that have been requested by the ILO supervisory bodies, and urges the Government to inform it when the legislative text amending sections 41, 214 and 215 of the Labour Code enters into force and to send a copy of the said text.
   • (b) The Committee notes with great concern, however, that questions remain regarding a number of serious issues. The Committee firmly expects the Government to show real willingness to improve the situation in this case by making specific and definitive responses to its recommendations. The Committee therefore firmly urges the Government once again to take specific steps towards this end without delay and thus facilitate transparent and sustainable social dialogue in Djibouti.
   • (c) As regards the issue of the workers dismissed in 1995 following a strike who have not yet been reinstated, the Committee requests the Government to supply information on the situation of Ms Mariam Hassan Alin and Mr Habib Ahmed Doualeh, whose reinstatement it claims to be under negotiation. As regards the workers whose names have been supplied by the complainant organizations and concerning whose situation it claims to have no information, the Committee expects the Government to take all necessary steps to resolve their situation without delay, at least for those who reside within the national territory or have indicated their wish to be reinstated. As regards the question of payment of wage arrears, the Committee requests the Government to reconsider its position.
   • (d) The Committee requests the Government to supply detailed information without delay on the situation of Mr Adan Mohamed Abdou and Mr Kamil Diraneh Hared, concerning whom it indicates, on the one hand, that it agrees to their reinstatement in their original department or another government department together with payment of their social security contributions and, on the other hand, that these two men have declined to be reinstated. If the Government maintains that they have declined to be reinstated, the Committee expects it to provide details accordingly.
   • (e) The Committee repeats once again its request to the Government to launch an inquiry without delay into the circumstances of the September 2006 dismissal of Mr Hassan Cher Hared and to inform it of the results and of any follow-up action taken.
   • (f) The Committee firmly expects the Government to guarantee the right to hold free and transparent elections to all trade unions in the country, particularly the UDT and its affiliated organizations. Such elections will enable the workers to choose their representatives in full freedom, without interference by the public authorities, whether it be deciding the terms of eligibility for union officers or holding the actual elections. Thus, in a framework which fully respects the capacity of workers’ organizations to act in total independence, the Government will be in a position to determine, together with these organizations, objective and transparent criteria for nominating worker representatives to national tripartite bodies and to the International Labour Conference.
   • (g) Taking into account the history of this case and the questions still pending, the Committee requests the Government to accept a tripartite mission.