Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 307, Juin 1997

Cas no 1910 (République démocratique du Congo) - Date de la plainte: 18-NOV. -96 - Clos

Allegations: Interference in trade union affairs

1. 159. The Trade Union of Plantation and Animal Husbandry Workers (STPE) presented a complaint for the violation of trade union rights against the Government in a communication dated 18 November 1996.
2. 160. The Government provided some comments and observations on this complaint in a communication dated 5 March 1997.
3. 161. The Democratic Republic of the Congo has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87); it has however ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98)

A. The complainant's allegations

1. 162. In its communication dated 18 November 1996 the STPE alleges that the Government has violated ILO Conventions Nos. 87, 98 and 135 as well as section 229 of the Labour Code. More specifically, it explains that the enterprise Marsavco-Zaire, a multinational of the Unilever group, had sent a confidential letter, reference No. PERS/942/96/104/AJRKM, on 22 July 1996 to the Minister of Labour and Social Welfare concerning the General Secretary of the Trade Union of Plantation and Animal Husbandry Workers, Mr. Kadivilako Luzingamo. On the basis of this letter, and without having consulted the parties involved (the officials in charge of the enterprise and the trade union), on 30 July 1996 the Minister sent a letter, reference No. 12/CAB/MTPS/0702/96, to the Trade Union of Plantation and Animal Husbandry Workers (STPE). In this letter the Minister of Labour asks Mr. Kadivilako Luzingamo no longer to involve himself in the activities of the trade union within that enterprise, due to the fact that he had worked in an enterprise belonging to the same group up until 1990 and had instituted proceedings against his employer, Lever Plantations, when his employment contract was broken off.
2. 163. The complainant goes on to say that the human resources department of the Marsavco-Zaire enterprise, having received a copy of the letter sent by the Minister of Labour to the General Secretary of the Trade Union of Plantation and Animal Husbandry Workers (STPE), Mr. Kadivilako Luzingamo, banned the trade union leader from exercising any trade union activities within that enterprise, despite the letter of clarification sent on 15 August 1996 to the Minister of Labour by the five representative trade union organizations within the enterprise, grouped together in an inter-union movement. The Marsavco-Zaire enterprise therefore refused to allow Mr. Kadivilako to participate in trade union meetings and in negotiations of the collective agreement being worked out. The complainant annexes copies of all related correspondence to its complaint.

B. The Government's reply

1. 164. In its 6 March 1997 reply, the previous Government reiterated its commitment to the obligations arising from the ILO Constitution. It did not refute the complainant's allegations; nevertheless, it explained that letter No. 0702/96 dated 30 July 1996 in no way constituted an obligation. According to the Government, this letter aimed rather to provide the persons concerned with some information to help improve the social climate during the collective bargaining. The Government added that section 267 of the Labour Code guaranteed the freedom of trade unions to choose the representatives they wished to participate in collective bargaining. Therefore, in the Government's eyes, a simple letter - which furthermore had no legal force - could not supplant a piece of legislation. The Government concluded by giving its assurance that the various services of the Ministry of Labour would do all they could to ensure that both parties respected the principles of freedom of association.

C. The Committee's conclusions

1. 165. The Committee notes the change of government that has taken place in the country. It recalls that the new Government should take all necessary steps to remedy any continuing effects which the events on which a complaint is based may have had since its accession to power, even though those events took place under its predecessor (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 18). The Committee expresses the hope that the new Government will take all the necessary measures to implement the recommendations that it is formulating in this case.
2. 166. The Committee observes that this case relates to an act of government interference in the appointment of a trade union representative assigned by the complainant trade union to negotiate a collective agreement.
3. 167. The complainant organization's and the Government's versions tally as to the facts, but differ on the interpretation given to those facts. For the complainant organization the letter from the Minister of Labour sent to the Trade Union of Plantation and Animal Husbandry Workers, with a copy to the enterprise management asking the General Secretary of the STPE not to exercise any trade union activity within the Marsavco-Zaire enterprise, constitutes serious interference by the Government in the activities of a trade union; the Government, however, views the letter rather as information given by the Minister to the persons concerned with the aim of improving the social climate during collective bargaining.
4. 168. It appears from the documentation annexed to the complaint that the Minister of Labour, in a letter dated 30 July 1996 sent to the STPE, wrote that the management of Marsavco-Zaire had asked him to help improve relations with the STPE in connection with the position of Mr. Kadivilako, General Secretary of the STPE. In the letter, the Minister points out that Mr. Kadivilako had been head of personnel in another enterprise belonging to the same group up until the time of his resignation, for which the employer was apparently responsible. He had issued a writ against the enterprise and had gone on to become General Secretary of the STPE. In this capacity he presented himself within the enterprise as a trade union official for collective bargaining purposes, and it was for this reason that he had been challenged by the enterprise. The Minister points out: "Without prejudice to the principles of freedom of association, the protection of trade union rights and of the right to non-interference by administrations as stipulated in ILO Conventions Nos. 87 and 98 and section 229 of the Labour Code, I would appreciate it if you could resolve this problem in such a way as to safeguard the promotion of collective bargaining within the enterprise and to preserve trade union ethics." The Minister concludes by adding: "Given that the process opposing the two parties is based on a strictly personal cause rather than a trade union one, I would ask you to consider replacing Mr. Kadivilako Luzingamo by another trade union official for the negotiations with Marsavco-Zaire, for the whole duration of the process."
5. 169. In a letter dated 12 August 1996 sent to the Minister of Labour, the STPE acknowledges that Mr. Kadivilako had been head of personnel in 1990 in an enterprise belonging to the Lever group, but disagrees that that fact should constitute an obstacle to his exercising trade union duties and especially to defending workers' rights. It considers that the private problem opposing him to his former employer cannot be allowed to interfere with his trade union activities.
6. 170. As regards the inter-union movement which groups together five representative organizations within the enterprise, in a letter dated 15 August 1996 also sent to the Minister of Labour, it expresses its regrets over the Government's interference in this matter given that the trade union leader in question had contributed to the draft revision of the collective enterprise agreement to be negotiated with the employer. It protests against the ministerial interference which runs counter to the fundamental principles of the ILO and the Labour Code, illegally delaying the beginning of bargaining work for the revision of the agreement which had been planned for 8 May at the latest, in accordance with article 6 of the agreement.
7. 171. In a letter sent on 30 August 1996 to the General Labour Inspector the enterprise maintains its refusal to begin negotiations while the General Secretary of the STPE remains a party to the negotiations despite the ban imposed by the Cabinet.
8. 172. Lastly, the Director General of the General Labour Inspectorate, in a letter dated 7 October 1996, points out to the employer that the Ministry of Labour's letter dated 30 July 1996 to the STPE in no way constitutes a ban, but is rather information given to the person concerned, and it urges the employer, having reminded it of the content of Conventions Nos. 87 and 98 and of the Labour Code, to set the date to begin bargaining work.
9. 173. Having examined the documentation, the Committee is of the view that the Minister of Labour's letter dated 30 July 1996, sent to the complainant trade union with a copy to the employer, constitutes government interference in the appointment of a trade union representative as a negotiating party. In fact, even if it was subsequently pointed out by the General Labour Inspectorate that this letter did not constitute an obligation, the fact still remains that the Minister of Labour tried to influence the choice of a trade union representative in the framework of collective bargaining. The Committee also notes that it is apparently on the basis of the Minister's letter that the employer refused to start the collective bargaining process.
10. 174. The Committee recalls in this connection the considerable importance it attaches to the principle that workers' organizations must themselves be able to choose which delegates will represent them in collective bargaining without the interference of the public authorities. In a previous case, the Committee expressed the view that simply the fact that a trade union leader had previously left the work which he was carrying out in a given undertaking, should not affect his trade union status or functions unless stipulated otherwise by the constitution of the trade union in question (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 373). In the Committee's opinion, the fact that the person concerned had instituted proceedings against his former employer - which was an enterprise belonging to the same industrial group - should not have prevented him being appointed by his union to represent the interests of its constituents in negotiations.
11. 175. Lastly, the Committee considers that the intervention by the Ministry, the cause for the complaint, constituted unjustified government interference in the voluntary collective bargaining process. By intervening in the collective bargaining process, the Government infringed the principles contained in Article 4 of Convention No. 98, which stipulates that it must encourage and promote the development and utilization of machinery for voluntary negotiation between employers' and workers' organizations to regulate terms and conditions of employment by means of collective agreements. The Committee therefore urges the Government to remove any obstacles to collective bargaining that may have been caused by the intervention of the Minister of Labour and to keep it informed of the outcome of negotiations within the enterprise. The Committee, noting the allegation that the enterprise is refusing to let Mr. Kadivilako participate in trade union meetings and negotiations, calls on the Government to ensure that he is able to undertake trade union activities without hindrance.

The Committee's recommendations

1. 176. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) Recalling that trade union organizations must themselves be able to choose which delegates will represent them in collective bargaining without the interference of the public authorities, the Committee urges the Government to remove any obstacles to collective bargaining that may have been caused by the intervention of the Minister of Labour in the appointment of the representative of the Trade Union of Plantation and Animal Husbandry Workers (STPE) in the collective bargaining process.
   • (b) The Committee, stressing the importance it attaches to respect for Article 4 of Convention No. 98, requests the Government to keep it informed of the outcome of negotiations within the enterprise.
   • (c) Finally, the Committee requests the Government to ensure that Mr. Kadivilako is able to carry out freely trade union activities.
   • (d) The Committee expresses the hope that the new Government will take all the necessary measures to implement the above-mentioned recommendations.