Rapport définitif - Rapport No. 279, Novembre 1991

Cas no 1592 (Tchad) - Date de la plainte: 29-MAI -91 - Clos

1. 151. The complaint of the UNST appears in a communication of 29 May 1991. The Government sent its observations on the allegations in a communication of 30 September 1991. Subsequently, the complainant sent complementary information in a communication of 8 October 1991.
2. 152. Chad has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), as well as the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

1. 153. The UNST alleges in its complaint that the Government of Chad has violated Convention No. 87 by dissolving the complainant trade union confederation through a decision of the Council of Ministers of 23 May 1991.
2. 154. The complainant states that the Government has justified its action by making reference to Decision No. 001/PR/CE/MPS/90 of the National Salvation Movement (MPS), which was taken after the MPS came to power on 1 December 1990. This Decision of 3 December 1990 suspends the Constitution, dissolves the Government, the National Assembly and the National Union for Independence and Revolution (UNIR) (the single party which had previously held power), as well as its affiliate bodies.
3. 155. The complainant notes that until the date of the complaint, the MPS had not interfered in the activities of the UNST; although the UNST had adopted a resolution by which it affiliated itself to the UNIR during its constitutive Congress of November 1988, unlike other organisations it nevertheless remained an occupational organisation. However, on 17 December 1990, the Government orally communicated to the Confederation that it was dissolved in accordance with Decision No. 001/PR/CE/MPS/90.
4. 156. The complainant states that, in addition to the provisions of international labour standards which prohibit the administrative dissolution of trade union organisations, Chad has internal regulations, such as section 40 of Act No. 7/66 (the Labour Code), which stipulates that trade union organisations may be dissolved only by means of judicial proceedings. Thus, the dissolution of a workers' organisation by decision of a political party or movement is illegal and arbitrary.
5. 157. Nevertheless, according to the complainant, in a spirit of compromise and with a view to removing any grounds for the Government's action, the UNST convened a congress from 29 April to 2 May 1991 which adopted two resolutions: the first rescinded the Confederation's affiliation to the UNIR, and the second reaffirmed the UNST's independence with respect to any political party or movement. In so doing, the Confederation sought to comply with the provisions of section 40 of Act No. 7/66 which stipulates that "it shall be the duty of the public attorney and of the labour inspector either on their own initiative or at the request of the Minister of the Interior or the Minister of Labour and Social Welfare to require the directors of trade unions to rescind or amend any unlawful provisions in the rules ... of a trade union", even though the Confederation's affiliation to the UNIR was not mentioned in its rules.
6. 158. Following this congress, the Confederation's rules and the names of its officers were filed with the office of the Prefecture, in accordance with the provisions of section 38 and following of Act No. 7/66. The Prefecture acknowledged receipt of these documents; according to section 49 of Act No. 7/66 this acknowledgement suffices for trade unions to enjoy legal personality.
7. 159. The complainant states that the Government considers that trade unions are governed by Regulation No. 27/INT/SUR of 28 July 1962 concerning associations, and under which such associations may not enjoy legal personality unless they obtain an authorisation to operate from the Ministry of the Interior. The complainant contends that this is an abuse of power, on the grounds that this regulation does not apply to trade unions inasmuch as the legislature has adopted a specific Act in respect of trade unions. In any situation involving two legal texts which the Government pretends to apply to a given organisation, it should be recognised, in accordance with general legal principles, that the most recent text prevails.
8. 160. The complainant attaches to its communication a lengthy list of documents, including the legal texts to which it has made reference and a copy of its rules.
9. 161. In its communication of 8 October 1991 the complainant reports that the Government has recognised a new trade union confederation (the Federation of Trade Unions of Chad (UST)), authorising it to operate in accordance with Regulation No. 27/INT/SUR concerning associations. Nevertheless, the complainant alleges that this authorisation should have been given under Act No. 7/66 (Labour and Social Welfare Code), and not on the basis of the above-mentioned regulation.

B. The Government's reply

1. 162. In a communication of 30 September 1991, the Government states that the list of documents submitted by the complainant does not include the original rules of the UNST, but merely the amended rules adopted by an extraordinary congress which was held after the Confederation's dissolution.
2. 163. The Government explains that the former UNST was set up in November 1988 as a result of the merger of two trade union confederations: the National Union of Chadian Workers (UNATRAT) and the Chadian Trade Union Confederation. Article 1 of the original rules of the UNST recognised that the organisation was governed by Regulation No. 27/INT/SUR of 28 July 1962, which governs associations in Chad, and by Act No. 7/66 of 4 March 1966 which constitutes the Labour and Social Welfare Code.
3. 164. In accordance with section 3 of Regulation No. 27/INT/SUR, registration and authorisation are required for creating an association, but associations acquire legal personality only if they specifically request it. In the case of the UNST, the Ministry of the Interior and Territorial Administration at that time received no application for registration or request for authorisation. Moreover, the organisation's leaders never requested legal personality for their organisation.
4. 165. It is clear that the UNST had only a de facto existence, and that the predominant political movement at the time, the National Union for Independence and Revolution (UNIR), was its benefactor.
5. 166. The Government's communication adds that the leaders of the former UNST maintain that the organisation's rules and the names of its leaders were filed with the Prefecture, which issued an acknowledgement of receipt, but deliberately overlook the genuine legal meaning of such a receipt, which is no more than the Prefecture's administrative acknowledgement of having received the statement of association of the former UNST. It is incorrect to assume that this simple receipt can confer a certain legitimacy to a trade union organisation. Moreover, the Government points to the fact that the very leaders of the former UNST failed to mention the Service Note No. 481/PCB/91 of 17 May 1991 which annulled the above-mentioned receipt on procedural grounds.
6. 167. In addition, as regards the founding of a trade union, the Government states that it should be recalled that section 38 of the Labour and Social Welfare Code requires the founders of any trade union to register the rules and the names of their leaders in the Prefecture or Subprefecture where the trade union is formed. As regards associations set up in the capital city, section 1(2) of Decree No. 165/INT/SUR of 25 August 1962 on the application of the regulation concerning associations, provides that as regards the city of Fort-Lamy (now N'Djaména) statements of association must be filed with the National Safety Office, while the Prefect of Chari-Baguirmi is competent for the remainder of the circumscription. In accordance with this provision, a number of organisations, including the Chadian Employers' National Council (CNPT), complied with this procedure and were therefore given authorisation to operate by the Ministry of the Interior and Territorial Administration. The leaders of the former UNST, however, failed to respect this procedure and thus did not comply with the above-mentioned legal texts.
7. 168. Section 42 of the Labour and Social Welfare Code lays down certain conditions of eligibility for leaders of trade union organisations. In accordance with this provision, the leaders of a trade union organisation must submit to a background check by the Ministry of the Interior and the Department of Justice. The leaders of the former UNST never complied with this formality, assuming that their affiliation to the UNIR exempted from any administrative formality in this connection. Some of these leaders did not even belong to one of the confederation's affiliated trade unions.
8. 169. The Government adds that the leaders of the former UNST violated not only national legislation, but also international standards concerning freedom of association, inasmuch as Convention No. 87 recognises the right of all employers and workers to organise without prior authorisation, but requires them to respect the law. Thus, the attempt of these trade union leaders to select a posteriori the legal texts which govern their association, constitutes in itself a violation of the law. Moreover, contrary to the Convention's provisions, the leaders of the former UNST affiliated to the UNIR, thereby forfeiting the confederation's freedom and independence. Not only were the rules of the former UNST drafted under the supervision of the UNIR's officer for orientation, information and mass organisation, but following its establishment, the organisation affiliated to the UNIR by means of resolution No. 5 of 17 November 1988. Some of its leaders were appointed to the Central Committee and Executive Board of the UNIR.
9. 170. The leaders of the former UNST claim to have rescinded this affiliation after the MPS succeeded the previous regime. It should be recalled that by means of Decision No. 001/PCE/MPS/90 of 3 December 1990, the president of the Executive Committee of the MPS dissolved the UNIR and its affiliate bodies: inasmuch as the former UNST affiliate body of the UNIR, it undoubtedly comes under the scope of this decision. In addition, the Government wonders how can one speak of disaffiliation from a political movement which no longer exists? The decision of the MPS was an act aimed at saving the country; it not only dissolved the previous political movement, but also the Constitution and all related institutions. Thus, the controversy on this issue is pointless.
10. 171. The Government of Chad declares that, in accordance with the National Charter, it is committed to respecting international conventions and agreements, and to guaranteeing freedom of association in the country. It was in this spirit that, faced with the vacuum left by the dissolution of the UNST, it authorised an extraordinary congress of neutral trade unions and federations for the purpose of creating a new trade union confederation. However, trade union leaders failed to keep their word, and their debates on the items on the agenda resulted in an endorsement of the UNST, as a form of protest and criticism aimed at the Government.
11. 172. In conclusion, the Government states that it is not bound by the resolutions adopted by the above-mentioned second congress of the former UNST. The evidence suggests that efforts are being made to reconstitute an association which has been officially dissolved; such efforts are therefore subject to the corresponding sanctions prescribed by national regulation. The Ministry of the Public Service and Labour emphasises that in spite of the UNST's dissolution, first-level trade unions continue to carry out their activities; some of them have joined in setting up an organisation known as the Free Confederation of Chadian Workers (CLTT), which has been authorised to operate by the Ministry of the Interior. Following this authorisation, the former leaders of the dissolved trade union organisation met in an extraordinary congress on 23 June 1991 to create the Union of Chadian Trade Unions (UST), made up of former UNST federations. In accordance with the provisions of the Labour and Social Welfare Code, and Regulation No. 27/INT/SUR, the new trade union organisation submitted to the competent agencies a request for authorisation to operate.
12. 173. Lastly, the Government states that it is committed to a democratic approach to social dialogue, and that this implies the maintenance of cooperative relations with all social partners. In addition, the Government gives high priority to the continued independence of trade union organisations with a view to promoting the harmonious development of national institutions.

C. The Committee's conclusions

1. 174. The Committee notes that the allegations in this case concern the dissolution by administrative decision of the UNST, together with a suspension of the Constitution, the dissolution of the Government, the National Assembly and the UNIR political movement to which the UNST was affiliated.
2. 175. The Committee first recalls the importance it attaches to the right of workers to establish organisations of their own choosing. It notes that, according to the Government's observations, the UNST had only a de facto existence during the previous regime, owing to its failure to comply with certain legal requirements for obtaining legal personality, namely, the filing of a statement or request with the Ministry of the Interior. Likewise, its leaders failed to comply with certain legal requirements (section 42 of the Labour Code) for trade union leaders in Chad, such as background investigations by the Ministry of the Interior and the Department of Justice. recognise the UNST's repudiation of the UNIR political movement, and argues that the UNST, as an affiliate of the UNIR, was dissolved at the same time as the UNIR. Likewise, it notes that the former leaders of the UNST have set up a new organisation, the UST, and have filed for authorisation to operate.
3. 177. As regards the dissolution of the UNST by executive decision, the Committee wishes to remind the Government that the administrative dissolution of trade union organisations constitutes a clear violation of Article 4 of Convention No. 87, ratified by Chad. In addition, the Committee considers that the dissolution of a trade union organisation is a measure which should only be taken in extremely serious cases; consequently, such a dissolution should occur only following a judicial decision, so that the rights of defence are fully guaranteed.
4. 178. In addition, the Committee wishes to point out that in the interest of the normal development of the trade union movement it would be desirable for the parties concerned to have regard to the principles enunciated in the resolution concerning the independence of the trade union movement adopted by the International Labour Conference at its 35th (1952) Session, to the effect that "the fundamental and permanent mission of the trade union movement is the economic and social advancement of the workers and that when trade unions, in accordance with the national law and practice of their respective countries and at the decision of their members, decide to establish relations with a political party or to undertake constitutional political action as a means towards the advancement of their economic and social objectives, such political relations or actions should not be of such a nature as to compromise the continuance of the trade union movement or its social or economic functions irrespective of political changes in the country".
5. 179. As regards the provisions of section 42 of the Labour and Social Welfare Code, according to which trade union leaders must be subject to a background investigation conducted by the Ministry of the Interior and the Department of Justice, the Committee considers that this measure amounts to prior approval by the authorities of candidates to the executive committee of a trade union; therefore this constitutes an interference in the activities of trade union organisations incompatible with Article 3 of Convention No. 87, which recognises the right of workers freely to elect their representatives.
6. 180. As regards the new organisation, the UST, set up by the former members of the UNST, and its request for authorisation to engage in trade union activities, the Committee notes that this authorisation was granted under Regulation No. 27/INT/SUR, and not on the basis of Act No. 7/66 (Labour Code), as it should have been, according to the complainant. The Committee has examined the text of Regulation No. 27/INT/SUR, which according to the Government, governs the activities of trade union organisations. The Committee has noted that several provisions of the regulation are incompatible with Convention No. 87 such as section 5 (concerning the competence of the Ministry of the Interior to grant or refuse authorisation to associations), section 8 (the immediate administrative dissolution of a trade union by decision of the Ministry of the Interior) and section 11 (the right of administrative authorities to oversee an association which they have subsidised). Consequently, the Committee requests the Government to review the legislative texts and regulations applicable to trade union organisations with a view to ensuring that they are consistent with the Convention. The Committee refers this aspect of the case to the Committee of Experts.

The Committee's recommendations

1. 181. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee recalls the importance it attaches to the right of workers to establish organisations of their own choosing.
   • (b) As regards the dissolution of the UNST by means of an executive decision, the Committee points out that the administrative dissolution of trade union organisations constitutes a clear violation of Article 4 of Convention No. 87, ratified by Chad. The Committee considers that the dissolution of a trade union organisation is a measure which should only occur in extremely serious cases; consequently, such a dissolution should only take place following a judicial decision, so that the rights of defence are fully guaranteed.
   • (c) As regards the requirement according to which candidates to trade union office are subject to a background investigation, the Committee draws the Government's attention to the fact that this measure amounts to prior approval by the authorities of candidates to the executive committee of a trade union; this constitutes an interference in the activities of trade union organisations, which is incompatible with Article 3 of Convention No. 87.
   • (d) As regards the new organisation, the UST, and its request for authorisation to engage in trade union activities, the Committee notes that this authorisation was granted under Regulation No. 27/INT/SUR, which, according to the Government, governs the activities of trade union organisations. The Committee has noted that several provisions of the regulation are incompatible with Convention No. 87, and requests the Government to review the legislative texts and regulations applicable to trade union organisations with a view to ensuring that they are consistent with the Convention.
   • (e) The Committee refers this aspect of the case to the Committee of Experts on the Application of Conventions and Recommendations.