Rapport définitif - Rapport No. 302, Mars 1996

Cas no 1838 (Burkina Faso) - Date de la plainte: 18-AVR. -95 - Clos

Allegations: Dismissal of trade union members during a restructuring process

1. 112. The complaint is contained in a communication from the General Labour Federation (CGT-B) dated 18 April 1995. The Government replied in communications dated 9 November and 14 December 1995.
2. 113. Burkina Faso has ratified 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. 114. In its communication dated 18 April 1995, the General Labour Federation (CGT-B), to which the National Trade Union of Brewery Workers (SNTC) is affiliated, alleges that the Director-General of the Burkina Faso Breweries (Brakina) applied for the restructuring of an enterprise providing for the closure of the Bobo-Dioulasso plant and the dismissal of 84 workers, as a result of which a collective dispute arose (the complainant points out that the enterprise is not in financial difficulties). Following the failure of mediation by the Ministry of Labour on 6 October 1994, the employer called upon the security forces on 10 October 1994 to illegally evict 50 workers, many of whom are trade union delegates and staff delegates of the SNTC, which is the majority union in the enterprise in terms of the number of staff delegates. The complainant explains that when conciliation fails, the Labour Code provides for the appointment of an arbitrator; it is only then that a strike or lockout may be held.
2. 115. The complainant encloses a copy of a ruling by the Superior Court of Bobo-Dioulasso dated 1 December 1994 stating that "in dismissing workers with immediate effect from 10 October 1994 the Brakina company has blatantly violated the dismissal procedure", "an order should be issued to suspend the dismissal measure" and that "the dismissal measures shall be suspended until the arbitration prescribed for the purpose". This court decision was not observed.

B. The Government's reply

1. 116. In its communications dated 9 November and 14 December 1995 the Government states that despite the efforts made by the parties and by the labour administration in particular, negotiations concerning the collective dispute in the Brakina enterprise did not bring the parties closer together. In accordance with the legislation in force, failure to reach agreement was formally recorded. Once this document had been signed, and provided that the prescribed time periods and formalities were observed, the employer was free to start the dismissal procedure.
2. 117. As regards failure to comply with the ruling of the Superior Court of Bobo-Dioulasso dated 1 December 1994, the Government states that justice operates according to its own rules, that the independence of the magistrature is a reality in the country and the Government has refrained from any interference in judicial affairs. The Government adds that, as a guarantee of social peace, it has constantly invited the parties to the dispute to engage in dialogue and consultation in order to achieve a peaceful settlement of their differences, in full observance of the established procedures. The Government accordingly deplores the intransigence of the parties, which has prevented them from settling their differences amicably.
3. 118. Lastly, the Government encloses a copy of the judgement on appeal of the Arbitration Board, dated 6 February 1995, on the same case. The judgement "rules that the economic difficulties of the Brakina-Bobo-Dioulasso plant have been proven and that its restructuring is justified", "rules that the staff reduction measures (dismissals and suspensions) are legitimate as to their substance, but considers them irregular with regard to form", "rejects the suit to reinstate the workers", "notes the offer of Brakina to pay a special compensation of eight months' gross wages in addition to the entitlements in the event of termination of the employment contract laid down in legislation and the collective agreement" and "orders Brakina to pay two months' gross wages to the workers as damages".

C. The Committee's conclusions

1. 119. The Committee observes that in this case the complainant organization alleges the dismissal of 50 workers employed in the Brakina enterprise (including trade union delegates and staff delegates of the National Trade Union of Brewery Workers). These dismissals arose out of an industrial dispute in protest of the earlier dismissals in the context of a restructuring.
2. 120. The Committee notes the Government's statements and the judgement on appeal handed down by the Arbitration Board on 6 February 1995 in which it rules that the economic difficulties of the enterprise have been proven, that the dismissals were legitimate (although irregular as to the form in which they were carried out) and establishes the compensation to which the dismissed workers are entitled.
3. 121. In this case, although it notes that, with the mediation of the Ministry of Labour, the Brakina enterprise and the National Trade Union of Brewery Workers held consultations and negotiations (which did not enable them to settle their differences), the Committee points out that the Government has not denied that among the 50 workers dismissed there were trade union delegates or staff delegates of the SNTC. In this connection, in cases of staff reduction, the Committee has recalled "the principle contained in the Workers' Representatives Recommendation, 1971 (No. 143), which mentions amongst the measures to be taken to ensure effective protection to these workers, that recognition of a priority should be given to workers' representatives with regard to their retention in employment in case of reduction of the workforce (Paragraph 6(2)(f))". (See Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 960.) While it deplores the fact that this principle was not taken into account for the staff reductions carried out in the Brakina enterprise, the Committee trusts that it will be observed in future restructuring. The Committee is of the opinion that the question of reinstatement of the dismissed trade union members does not need to be examined in this case, as it was rejected by the Arbitration Board, an arbitration body to which the trade union organizations concerned referred the case voluntarily, thus submitting themselves to its jurisdiction and decisions.

The Committee's recommendations

1. 122. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • The Committee requests the Government to take account in future restructuring providing for staff reductions the principle laid down in the Workers' Representatives Recommendation, 1971 (No. 143), which mentions amongst the measures to ensure protection, that recognition of a priority should be given to workers' representatives with regard to their retention in employment in case of reduction of the workforce (Paragraph 6(2)(f)).