Allegations: The complainant organizations denounce a process for the
determination of trade union representation in the private and public sectors, in part by
way of trade union elections, conducted by the Government in violation of legal texts and
without their participation
- 336. In a communication dated 21 August 2015, the National Organization
of Free Trade Unions of Guinea (ONSLG), the General Union of Workers of Guinea (UGTG),
the Guinean Confederation of Free Trade Unions (CGSL), the Autonomous Trade Union
Confederation of Guinean Workers and Retirees (COSATREG), the General Confederation of
Workers of Guinea (CGTG), the Democratic Union of Workers of Guinea (UDTG) and the
General Confederation of Work Forces of Guinea (CGFOG) filed a complaint of violations
of freedom of association against the Government of Guinea.
- 337. In a communication of 24 December 2015, the Government presented its
observations on the allegations of the complainant organizations.
- 338. Guinea 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 complainants’ allegations
A. The complainants’ allegations- 339. The complainant organizations denounce a process for the
determination of trade union representation in the private and public sectors conducted
by the Government in violation of legal texts and without their participation. They
consider that the legislative void on the organization of trade union elections in the
Labour Code and the Guinean Public Service Regulations led to Government interference in
trade union affairs with the issuing of a decree regulating the organization of trade
union elections, which would constitute a violation of ILO Convention No. 87.
- 340. According to the complainant organizations, the Labour Code does not
regulate the organization of trade union elections, which depend only on the will of
organizations of employers and workers. The Minister of Labour had established a review
committee to prepare for trade union elections, but the Memorandum of Understanding
proposed by the Government as a basis for discussion had been rejected by the trade
unions. The General Labour Inspectorate was requested to draft the minutes of that
meeting, when Decree No. D/2014/257/PRG/SGG, of 18 December 2014, regulating trade union
elections in the public, semi-public and private sectors, was issued by the President of
the Republic, before work was finalized. The complainant organizations indicate that
this decree was denounced before the national courts and attach a copy of a memorandum
submitted to the Supreme Court on this matter.
- 341. They state that, from 30 March to 7 July 2015, the Government,
through the General Labour Inspectorate and the General Inspectorate for the Public
Administration, undertook the organization of evaluations/trade union elections of
workers’ organizations in the public, semi-public and private sectors, unilaterally
excluding the informal sector despite its weight in the national economy. They allege
that, out of more than 2,000 enterprises, only 150 were contacted by the ministry
responsible for labour. A meeting to announce the results, presided over by the
ministers responsible for labour and the public service, was allegedly held on 8 July
2015 without the participation of the trade union confederations, then, on 22 July 2015,
a message was sent to all the trade union organizations, to which the complainant
organizations replied by letter dated 4 August 2015 (attached to the complaint). The
complainant organizations also allege that the minister responsible for labour and his
counterpart in the public service sent to the President of the Republic the results
contested in five out of 38 communes, for the purpose of designating workers’
representatives to the Economic and Social Council. Consequently, the complainant
organizations reject the decisions emanating from these operations and allege the
violation of Act No. L/91/004/CTRN of 23 September 1991 on the composition and
functioning of the Economic and Social Council.
- 342. The complainant organizations attach to their complaint copies of
Decree No. D/2014/257/PRG/SGG, of 18 December 2014, of Act No. L/91/004/CTRN of
23 September 1991 and of Decree No. D/2015/145/PRG/SGG of 24 July 2015, appointing
members of the Economic and Social Council. They also transmit a document containing the
final result of the evaluation of the level of representativeness of the national trade
union organizations and a letter from the Office of the President of the Republic dated
13 July 2015 on the designation of delegates of the most representative trade union
confederations to the Economic and Social Council.
B. The Government’s reply
B. The Government’s reply- 343. In its communication of 24 December 2015, the Government provided
its observations and contested the facts described by the complainant organizations,
while also reaffirming its willingness to respect freedom of association.
- 344. According to the Government, the process for organizing trade union
elections and evaluating the representativeness of trade union organizations was
conducted with respect for tripartism and involving all employers’ and workers’
organizations in the final decision. These organizations were invited to a tripartite
meeting where the draft decree was examined. The meeting, presided over by the
employers’ representative, had a trade union representative as vice-president – a member
of COSATREG, one of the complainant organizations. While at the outset the principle of
issuing an order had been put forward, during the meeting the decision to issue a decree
was adopted by the majority of the members present, as only such an instrument would
allow simultaneous coverage of the private and the public sectors. The Government states
that some trade union confederations contested the decree and that it was informed that
the matter would be referred to the Supreme Court, although it had not yet been
questioned on the matter by a judicial authority.
- 345. The Government maintains that, far from being an exclusionary
measure, the evaluation of trade union representation was conducted to respect the
provisions of the Labour Code and other legislative and regulatory texts requiring that
information. The evaluation campaign was launched by the labour inspectorate, which
invited the employers to proceed with elections of trade union delegates where
necessary, in particular in cases where terms of office had expired. These elections
were conducted within enterprises without Government involvement. The follow-up
consisted only of an arithmetic computation of the number of members by trade union
confederations.
- 346. The Government highlights the fact that the evaluation process gives
a very clear picture of trade union representation in the formal sector. The trade union
confederations were told that the difficulties involved in evaluating the informal
sector meant that more preparation was necessary in order to be able to assess the
protagonists involved, which criteria to use and the modalities for evaluation, and that
it would consequently be done at a later stage. The results were announced on 8 July
2015 in the presence of all the trade union organizations and of the employers’
representative, who welcomed the initiative and asked that the process be improved. On
that occasion, and later by correspondence, the trade union confederations were asked to
nominate members of the tripartite committee responsible for complaints relating to
trade union elections. The Government questions the fact that the complaint makes no
reference to the fact that several confederations, including the complainant
organizations, had nominated a representative to that committee. The observations and
complaints addressed to the committee have all been dealt with and are set out in the
final evaluation report addressed to all the social partners.
- 347. The Government considers that the decree is not contradictory and
does not replace any provisions of the Labour Code or of ILO Convention No. 87; on the
contrary, it fills a legislative void on the organization of trade union elections in
the Labour Code and the Guinean Public Service Regulations. It also recalled that it
would acknowledge and respect any decision emanating from the Guinean courts which,
considering the matter in accordance with article 521.1 of the Labour Code, would cast
doubt on the evaluation process and its results.
C. The Committee’s conclusions
C. The Committee’s conclusions- 348. The Committee notes the complainants’ allegations that the
legislative void on the organization of trade union elections in the Labour Code and the
Guinean Public Service Regulations led to Government interference in trade union affairs
with the issuing of a decree regulating the organization of trade union elections, which
would constitute a violation of ILO Convention No. 87, while the Government considers
that, far from being an exclusionary measure, the evaluation of trade union
representativeness was conducted to respect the provisions of the Labour Code and other
legislative and regulatory texts requiring that information.
- 349. The Committee considers it appropriate to recall first, that on
several occasions, and particularly during discussion on the draft of Convention No. 98,
the International Labour Conference referred to the question of the representative
character of trade unions, and, to a certain extent, it agreed to the distinction that
is sometimes made between the various unions concerned according to how representative
they are. Article 3(5) of the Constitution of the ILO includes the concept of “most
representative” organizations. Accordingly, the Committee felt that the mere fact that
the law of a country draws a distinction between the most representative trade union
organizations and other trade union organizations is not in itself a matter for
criticism. However, the determination of the most representative organization must be
based on objective, pre-established and precise criteria so as to avoid any possibility
of bias or abuse, and the distinction should generally be limited to the recognition of
certain preferential rights, for example for such purposes as collective bargaining,
consultation by the authorities or the designation of delegates to international
organizations. The Committee also recalls that Conventions Nos 87 and 98 are compatible
with systems which envisage union representation for the exercise of collective trade
union rights based on the degree of actual union membership, as well as those envisaging
union representation on the basis of general ballots of workers or officials, or a
combination of both systems. [See Digest of decisions and principles of the Freedom of
Association Committee, fifth (revised) edition, 2006, paras 346, 349 and 354.]
- 350. The Committee observes that the complainant organizations allege
that the Government conducted the process for the determination of trade union
representation in the private and public sectors and adopted a decree on that subject
without their participation, which was denounced before the national courts. The
Committee notes the Government’s reply, contesting these allegations and indicating that
the trade union confederations were invited to a tripartite meeting for which the
vice-president was a representative of COSATREG, one of the complainant organizations,
during which the draft decree was examined and adopted by a majority of the members
present, and stating that it has not yet been questioned on the matter by a judicial
authority. The Committee emphasizes the value of consulting organizations of employers
and workers during the preparation and application of legislation which affects their
interests.
- 351. In the light of the information provided by the complainant
organizations and the Government, the Committee observes that the evaluation of the
representation of workers’ organizations in the public, semi-public and private sectors
was conducted from 30 March to 7 July 2015 and that the informal sector was excluded
despite its weight in the national economy. Recalling that, according to the Transition
from the Informal to the Formal Economy Recommendation, 2015 (No. 204), in designing,
implementing and evaluating policies and programmes of relevance to the informal
economy, including its formalization, the Government should consult with and promote
active participation of the most representative employers’ and workers’ organizations,
which should include in their ranks, according to national practice, representatives of
membership-based representative organizations of workers and economic units in the
informal economy, the Committee notes that, according to the Government’s reply, the
trade union confederations had been told that the difficulties involved in evaluating
the informal sector meant that more preparation was necessary in order to be able to
assess the protagonists involved, which criteria to use and the modalities for
evaluation, and that it would consequently be done at a later stage. The Committee
invites the Government to avail itself of ILO technical assistance in this regard if it
so wishes.
- 352. The Committee observes that, according to the complainant
organizations, out of more than 2,000 enterprises only 150 were contacted by the
ministry responsible for labour, and the minister responsible for labour and his
counterpart in the public service sent to the President of the Republic the results
contested by five out of 38 communes, for the purpose of designating workers’
representatives to the Economic and Social Council, in violation of Act No.
L/91/004/CTRN of 23 September 1991. The Committee notes the Government’s reply that an
evaluation campaign was launched by the labour inspectorate, which invited the employers
to proceed with elections of trade union delegates where necessary, in particular in
cases where terms of office had expired; that these elections were conducted within the
enterprises without Government interference and that the follow-up only consisted of an
arithmetic computation of the number of members by trade union confederations. The
Committee also notes that, according to the documents submitted by the Government, the
union elections took place in the mixed private sector in a sample of 153 enterprises.
As the trade union elections were conducted in order to ascertain trade union
representativeness at the national level, the Committee requests the Government to
indicate whether the choice of enterprises where the elections were held was the subject
of consultation with the social partners and to indicate the relevant criteria.
- 353. Moreover, the Committee observes that Act No. L/91/004/CTRN of 23
September 1991, on the composition and functioning of the Economic and Social Council,
makes provision for the appointment of 12 members to represent the employees of the
public and private sectors, nominated by the most representative trade union
organizations of their branches of activity, and that the nomination of these members by
way of Decree No. D/2015/145/PRG/SGG of 24 July 2015, appointing members of the Economic
and Social Council, was conducted in accordance with the results set out in the document
containing the final results of the evaluation of the level of representativeness,
attached by the complainant organizations. The Committee recalls that it has considered,
with regard to legislation establishing a system for determining representativeness,
that granting the right to sit on the Economic and Social Council only to those trade
union organizations deemed to be the most representative in view of the Act would not
appear to influence workers unduly in the choice of organization that they wish to join,
nor to prevent less representative organizations from defending the interests of their
members, organizing their activities and formulating their programmes [see Digest of
decisions and principles of the Freedom of Association Committee, fifth (revised)
edition, 2006, para 357].
- 354. The Committee further notes the Government’s indication that the
results were announced on 8 July 2015 in the presence of all the trade union
organizations and the employers’ representative, who welcomed the initiative and asked
that the process be improved and that several trade union confederations, including the
complainant organizations, nominated their representatives to the tripartite committee
responsible for complaints arising from the trade union elections, which dealt with all
the observations and complaints addressed to it and which are recorded in the final
evaluation report sent to all the social partners.
- 355. The Committee also observes the Government’s statement that it would
acknowledge and respect any decision emanating from the Guinean courts which cast doubt
on the evaluation process and its results. The Committee requests the Government and the
complainant organizations to keep it informed of any administrative or judicial actions
those organizations might file which would challenge the abovementioned decree, the
evaluation process or its results, to provide a copy of rulings handed down and to
report on any follow-up action taken in respect of these rulings.
The Committee’s recommendations
The Committee’s recommendations- 356. In the light of its foregoing conclusions, the Committee invites the
Governing Body to approve the following recommendations:
- (a) As the trade union
elections were conducted in order to ascertain trade union representativeness at the
national level, the Committee requests the Government to indicate whether the choice
of enterprises where the elections were held was the subject of consultation with
the social partners and to indicate the relevant criteria.
- (b) The Committee
requests the Government and the complainant organizations to keep it informed of any
administrative or judicial actions those organizations might file which would
challenge Decree No. D/2014/257/PRG/SGG of 18 December 2014, the evaluation process
or its results, to provide a copy of rulings handed down and to report on any
follow-up action taken in respect of these rulings.
