Rapport définitif - Rapport No. 168, Novembre 1977

Cas no 866 (France) - Date de la plainte: 05-OCT. -76 - Clos

1. 65. By a communication dated 5 October 1976, the Trade Unions International of Public and Allied Employees presented a complaint concerning alleged violations of trade union rights in France.
2. 66. The text of the communication was transmitted to the Government, Which sent its observations in a letter dated 25 April 1977.
3. 67. France has ratified the Freedom of Association and Protection of the Right to organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and the Workers' Representatives Convention, 1971 (No. 135).

A. A. The complainants' allegations

1. 68. In its communication, the Trade Unions International of Public and Allied Employees alleged that a decision infringing trade union rights had been taken with respect to Mr. Laganier, Secretary-General of the CGT Union of the Ministry of Industry.
2. 69. The complainant organisation explained that Mr. Laganier, administrator at the National Institute of Statistics and Economic Studies (INSEE), had been detached to the Ministry of Industry for seven years. On his return from leave he found furniture removers in his office and learned to his surprise from the Minister's office that he was being sent back to his administration of origin without his superiors having requested it. Although the official reason given for the measure was that of budgetary restrictions, the complainants added that Mr. Laganier had cost the Ministry of Industry nothing since he continued to be paid by the INSEE.
3. 70. In conclusion, the complainants stated that Mr. Laganier has been transferred not in his capacity as an official but as general secretary of a trade union, and that the move was a violation of trade union rights in complete contradiction with Conventions Nos. 98 and 135. According to the complainants it was part of a more general, large-scale offensive against the trade union rights of public servants, organised by the French Government.
4. 71. In its reply the Government stated that the official had been informed of his return to INSEE by the Director of this body as early as 28 July 1976. The Director of the Office of the Minister of Industry had communicated the decision to Mr. Laganier's superiors on 16 August 1976.
5. 72. According to the Government -the reason for the detachment measure had been the reorganisation of the services of the Ministry of Industry, which required an increase in the number of staff detached to it from INSEE and a reduction in the number of permanent officials. Naturally, continues the government, Mr. Laganier was paid by his administration of origin, but there is an over-all limitation on the means available to administrations for their statistical services, and this has certain repercussions on the way in which INSEE distributes the officials which it recruits.
6. 73. Furthermore, the Government pointed out that this decision was by no means an exceptional one, since it fell within the normal career development process of INSEE administrators, who are placed at the disposal of the Ministry of Industry on a purely temporary basis. The case of Mr. Laganier, who had been attached to the Ministry for over seven years, was, according to the Government, analogous to that of all other INSEE administrators recruited at the same time or earlier, without exception, and they, like him, had returned to this body after spending several years working for the Ministry of Industry. The Government added that the official's departure had no effect on the CGT's representation within the Ministry. It concluded by stating that freedom of association was fully respected in this Ministry, as in other departments, under the provisions of the Prime Minister's circular dated 14 September 1970 relating to the exercise of trade union rights in the public service.

B. B. The Committee's conclusions

1. 74. The Committee notes that the case before it concerns a transfer affecting an official of a trade union organisation of public officials. It also notes that, according to the complainants, this measure constitutes a violation of trade union rights, while according to the Government it was the result of a service reorganisation and is similar to other measures taken with respect to officials recruited at the same time as, or earlier than, the person concerned.
2. 75. The Committee has always taken the view that one of the fundamental principles of freedom of association is that workers should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment - dismissal, transfer, downgrading and other prejudicial measures - and that this protection is particularly desirable in the case of trade union officials, because, in order to carry out their trade union functions in full independence, they must have the assurance that they will not be victimised by virtue of their trade union office.,
3. 76. Furthermore, the Committee considers that the existence of basic legislation forbidding acts of anti-trade union discrimination is insufficient if such legislation is not accompanied by effective procedures ensuring its practical application. Thus, when a worker considers that he has been a victim of anti-trade union practices, he should be able to appeal to a tribunal or to another authority independent of the parties.
4. 77. In the present case the Committee has noted the provisions of the Prime Minister's circular mentioned by the Government. This text recalls, in particular, that the normal development of trade union activities presupposes that the competent and duly appointed representatives of trade union organisations may not, by virtue of their trade union activity, be subjected to discrimination in any form or in any respect, especially as regards their progression in their careers. The Committee has also noted that, under section 14 of the General Statutes governing the Civil service, occupational unions "may in particular defend themselves before administrative courts against ... individual decisions prejudicial to the collective interests of public officials".
5. 78. In the light of the information before the Committee, it does not appear that such an appeal was lodged. The Committee has pointed out on many occasions that, while in view of the nature of its responsibilities it cannot consider itself bound by any rule that national procedures of redress must be exhausted, such as applies, for instance, to international arbitration tribunals, it must have regard, in examining the merits of a case, to the fact that a national remedy before an independent tribunal whose procedure offers appropriate guarantees has not been pursued.,
6. 79. Owing to the contradictory nature of the statements made by the complainants and the Government, the Committee feels unable to reach any specific conclusions on the particular case before it. Nevertheless, the Committee feels obliged to point out that it is within a national procedure that appeals against acts of anti-union discrimination can be examined most appropriately.

The Committee's recommendations

1. 80. In these circumstances, the Committee recommends the Governing Body to draw attention to the principles and considerations set forth in paragraphs 75 to 79 above, and to decide that the case calls for no further examination on its part.