Rapport intérimaire - Rapport No. 372, Juin 2014

Cas no 3004 (Tchad) - Date de la plainte: 16-NOV. -12 - Clos

Allegations: The complainant organization alleges the harassment of its officials, in particular the transfer of trade union officials and the arrest and conviction of its President, Vice-President and General Secretary as a punishment for strike action in the public service

1. 535. The complaint is contained in a communication dated 16 November 2012 from the Union of Trade Unions of Chad (UST). The complainant organization provided additional information in a communication of 29 December 2012.
2. 536. The Government sent its observations in a communication dated 18 March 2013.
3. 537. Chad 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. The complainant’s allegations

1. 538. In a communication dated 16 November 2012, the UST reports that, in 2011, the Government decided to increase the guaranteed inter-occupational minimum wage from 25,000 to 60,000 CFA francs (€38 to €90). On the insistence of the UST, the Government agreed to apply this new minimum wage to both the private and the public sectors. By ministerial orders, joint committees were set up to review the pay scales of both sectors. According to the complainant organization, while the application of a new pay scale did not pose any particular problem in the private sector, other than a short-lived strike, its implementation in the public sector encountered several difficulties.
2. 539. The complainant organization states that the revised public sector pay scale included the following three elements: step increments, category indices and an index point value to be used as the basis for calculating gross pay. The pay scale developed by the mixed joint committee was then submitted to the Public Service Advisory Committee, which endorsed it. However, prior to its approval by decree, the Government requested that it be applied over a three-year period on the grounds that the State did not have the resources to cover the wage bill that its immediate and full application would incur. According to the UST, in order not to appear totally uncompromising in the context of a strike that was already being carried out to demand the application of the pay scale, it agreed to make a concession and accepted the Government’s proposal. A memorandum of understanding was concluded to that effect.
3. 540. The complainant organization states that the application of the pay scale proved to be unfavourable to workers. The new indices were not used in the processing of employees’ salaries, which led to a stagnation of wage levels, instead of an increase. A significant number of employees have actually seen a reduction in their wages, as compared to the amount they received before the pay scale review. When questioned, the Government explained that the unfavourable situation had arisen as a result of a simple error in the setting of the parameters used for calculating wages. However, this error was not corrected for many months: although the Government was made aware of the situation in February 2012, it had still not taken corrective measures in May.
4. 541. In the light of this situation, the UST issued a one-month strike notice, for the period from 13 May to 13 June 2012. The organization called for the application of the index point value that had been agreed upon in the memorandum of understanding signed with the Government, the regularization of the wages that had decreased and the adoption of a revised agreement for contractual employees in the public service. The complainant organization states that, upon its expiry, the notice period was extended by one month, that is from 13 June to 13 July 2012. These two months passed without any contact being established with the Government.
5. 542. The strike began on 17 July 2012, four days after the expiry of the notice period. It lasted for two months, during which time the semblance of a negotiation was initiated by the Government, tainted by anti-union acts and threats. In the light of the Government’s refusal to respond to the demands on the grounds that the State did not have the necessary resources, the UST, at a general meeting held on 1 September 2012, approved a petition which denounces the poor governance in the management of the country’s financial resources. The organization thereby criticized the hoarding of the country’s wealth by the Head of State, his family and the people close to him. The Government seized this opportunity to claim that the UST had set aside its social aspirations to venture into political territory. According to the authorities, the union was not in a position to make such claims against the Head of State and the people close to him.
6. 543. According to the complainant organization, the situation became explosive. It is in this context that the General Secretary of the UST, Mr François Djondang, was harassed by the authorities for three days. Religious leaders, namely the Archbishop of N’Djamena, the General Secretary of the Alliance of Evangelical Churches and Missions of Chad and the President of the Higher Council for Islamic Affairs intervened, offering to mediate in order to help calm the situation down. So as not to engage in discussions under the pressure of a strike, the UST agreed to suspend its strike for one month, from 17 September to 17 October 2012.
7. 544. However, on 10 September 2012, the three highest-ranking officials of the UST, namely Mr Michel Barka, its President, Mr Younous Mahadjir, its Vice-President, and Mr François Djondang, its General Secretary, narrowly escaped a kidnapping attempt. This incident was reported to the police at the request of the Attorney-General of the Republic, as a result of pressure from the victims’ lawyers. However, the complainant organization states that, when they went to the prosecution services accompanied by dozens of activists, after the hearing, the Attorney-General charged them for defamation and incitement to racial hatred.
8. 545. Therefore, one day after the suspension of the strike, on 18 September 2012, the General Secretary, the President and the Vice-President of the UST were each given a suspended sentence of 18 months’ imprisonment and fined 1 million CFA francs (equivalent to €1,550) for defamation and incitement to racial hatred, following a sham trial that did not even last half an hour.
9. 546. Furthermore, the UST alleges that, during the sentencing, a union activist, Mr Gustave MBaïlou Betar, smiled at the severity of the sentence and was convicted from the bench for contempt of court. He was sentenced to three months in prison and fined 300,000 CFA francs. He served his prison sentence under conditions that led to his death on 9 December 2012 at the General Hospital of National Reference.
10. 547. The complainant organization also alleges reprisals by the authorities against union officials who led the strike in the health sector, including the arbitrary administrative transfers of several UST officials (Mr Younouss Mahadjir, Mr François Djondang, Mr Montanan N’Dinaromtan, Ms Rachel N’Doukolngone Naty, Ms Djerane Laoumaye and Mr Richard Abdoulaye) in several of the country’s towns.
11. 548. The complainant organization states that, despite these sanctions and notwithstanding the insistence of its members to resume the strike in response to the actions of the authorities, it demonstrated its good faith by respecting the suspension period up until its expiry, from 19 December 2012 to 31 March 2013. Nevertheless, the Government rejected the offer of religious mediation and, as a result, throughout the suspension of the strike by the UST, no contact was established between the parties. This attitude of contempt and irresponsibility on the part of the Government led the workers to resume the strike.
12. 549. The UST has set certain prerequisites for the resumption of dialogue with the Government and the lifting of the strike: (1) the reversal of the conviction of the three highest-ranking officials of the trade union confederation; (2) the cancellation of the arbitrary sanctions against union officials in the health sector for taking strike action; and (3) the adoption and approval of standardized agreements for contractual and decision-making employees in the public service.
13. 550. The complainant organization reports that the Government, for lack of a better argument, referred to Act No. 008/PR/2007 regulating the exercise of the right to strike in public services to threaten to declare the strikes illegal, even though the act recognizes the legitimacy of the workers’ action. The UST recalls that the act, which the Government wants to use in order to restrict union activity, was subject to the criticism of the Committee on Freedom of Association in a previous case (Case No. 2581), but it has not yet been amended as requested.
14. 551. Noting that the Government’s blatantly anti-union attitude is in violation of the Conventions ratified by Chad, the complainant organization urges it to end its acts of harassment against trade unionists and its obstruction of trade union activities. It hopes that the Committee on Freedom of Association will issue some recommendations in this regard.

B. The Government’s reply

1. 552. In a communication dated 18 March 2013, the Government states its commitment to collective bargaining and social dialogue, an essential tool to meet social challenges. It is in this spirit that the Government wished to be part of the ILO’s project to support the implementation of the Declaration (PAMODEC), which it sees as an opportunity to strengthen the capacity of the administration and the social partners in this regard.
2. 553. The Government states that it decided to increase the guaranteed inter-occupational minimum wage from 25,480 to 60,000 CFA francs in both the public and the private sectors, without having been placed under any pressure to do so. It therefore established, by order of the Minister of Public Service and Labour, two committees (one joint and the other mixed and joint), to review the pay scales of the private and public sectors. The role of the mixed joint committee is to make proposals to the Government and the social partners. It is up to them to accept or not the proposals. It is in this context that the memorandum of understanding referred to by the complainant organization was signed. In addition, the Government wishes to clarify that the Public Service Advisory Committee, which issues an opinion only on matters that are referred to it, adopted the pay scale but was unable to reach a consensus on the issue of the increase of the index point value proposed by the mixed joint committee. Therefore, the Government has not taken any action to endorse the new index point value proposed by the mixed joint committee and requested by the organizations representing staff, which form part of the Public Service Advisory Committee. The three components of the pay scale review mentioned by the complainant organization remain valid, but the index point value should be the one that is currently in force (115), as established by the memorandum of understanding between the Government and the trade union organizations of 20 June 2007 and approved by Act No. 013/PR/2007 of 3 October 2007, amending Act No. 001/PR/2007 of 5 January 2007, on the general state budget for 2007.
3. 554. The Government points out that, while it was examining with the employers the errors in the pay scales and the repercussions of applying these errors, the UST and the Free Confederation of Workers of Chad (CLTT) called on their members to stage a three day strike, which could possibly be extended. This led the Government to engage in negotiations with the two trade union confederations, which resulted in the signing of a memorandum of understanding on 11 November 2011 on a new pay scale established by Decree No. 1249 of 12 November 2011. According to the Government, the memorandum of understanding is clear and unambiguous, in that the index point value remains unchanged.
4. 555. The annual financial impact of the pay scale was valued at 12.5 billion CFA francs. Considering the State’s capacity to absorb this impact in 2012, it was agreed that the pay scale would be applied gradually, starting at 20 per cent in 2012, 40 per cent in 2013 and 40 per cent in 2014. An intermediate pay scale, taking into account the 20 per cent, and a table calculating pay-outs under that pay scale were developed for 2012. The Government states that it did everything it could to ensure the implementation of the memorandum of understanding; however, the UST argued that the pay indices should have been multiplied by 150 instead of by 115. Furthermore, the UST has criticized the fact that the salaries of certain State employees have stagnated and have even been cut in some cases.
5. 556. The Government acknowledges that the pay cuts in question were caused by a computer hitch. However, the errors were corrected immediately. It regrets that, despite numerous meetings with the social partners, at which it had tried to explain that the technical problems had been corrected automatically and that, when the memorandum of understanding had been signed in November 2011, there had been no question of increasing the index point value, the UST toughened its position. The UST initiated a strike on 17 July 2012 without taking into account the opinion of the CLTT, which is a signatory to the same memorandum of understanding.
6. 557. According to the Government, the Union of Social Affairs and Health Workers (SYNTASST) also participated in the strike called by the UST, despite having signed a memorandum of understanding with the authorities and having agreed to a three-year social truce, which expired in 2014. The Government regrets that the UST went from staging a go-slow strike to an all-out strike that even applied to essential services, thereby endangering the life and safety of the entire population. According to the Government, the UST, by preventing requisitioned state employees from working in certain essential services, is responsible for the death of several people. The strike is also in violation of Act No. 008/PR/2007 of 9 May 2007 regulating the exercise of the right to strike in public services.
7. 558. The UST then ventured into the political arena by attacking the Head of State and his family in a petition that was made public. The judiciary was seized of the matter and brought charges against those responsible for the petition.
8. 559. Furthermore, the Government denies that it refused mediation by religious leaders and by the Network of Human Rights Associations and states that it has always wanted to promote dialogue through the National Social Dialogue Committee (CNDS), a tripartite body established by Decree No. 1437/PR/PM/MFPT/09 of 5 November 2009 and responsible, inter alia, for facilitating the settlement of social conflicts. Thus, 18 January 2013 saw the official opening of negotiations in the premises of the CNDS with a view to reaching a social pact.
9. 560. The Government considers that not only was the memorandum of understanding of 11 November 2011 terminated unilaterally; the memorandum of understanding between the Government and SYNTASST was too. This situation could have escalated and public order could have been jeopardized. In this case, the Government could have taken the measures necessary to ensure the maintenance of order.
10. 561. However, the Government states that it had been convinced that the crisis could be resolved only through dialogue and had been able to demonstrate, once again, its good faith by reviewing all the measures that were considered by the UST to be a prerequisite for negotiation, in order to defuse the atmosphere. These measures included: (1) the outright cancellation of the assignments of the union officials; (2) the non-withholding of the salaries of employees who went on strike; (3) the continuation of the financial impact of the memorandums of understanding unilaterally terminated by the unions; and (4) the adoption of standardized agreements for employees in the public service. On this last point, a draft collective agreement for contractual employees in the public sector was prepared, adopted and discussed by the Cabinet Council. The draft should be adopted by the Government in the near future.
11. 562. Regarding the demand by the UST to reverse the conviction of the trade union officials, the Government states that it is for the judicial authorities to decide, in view of the independence of the judiciary.
12. 563. The Government affirms its desire to uphold social peace and its commitment to achieving a successful outcome in this case.

C. The Committee’s conclusions

1. 564. The Committee observes that this case concerns allegations of harassment and discrimination against members of the Union of Trade Unions of Chad (UST), in particular the transfer, arrest and conviction of its officials for taking strike action.
2. 565. The Committee notes that the difficulties that are alleged in the present case have resulted from the application of an increase in the guaranteed inter-occupational minimum wage in the public sector and, in particular, from a disagreement between the Government and the complainant organization over the methods of applying this increase, following the signature of a memorandum of understanding in November 2011. The Committee also observes that some technical hitches in the computer system also hampered the application at first, but that, according to the Government, the problems were quickly resolved. Nevertheless, the complainant organization alleges that the new pay scale has had a negative impact on the pay of some State employees. According to the UST, all these difficulties and the absence of corrective measures by the authorities led it to file a strike notice in May 2012, for a period that the trade union confederation extended twice in order to allow for possible negotiations. However, in the view of the lack of contact with the Government, the strike was initiated on 17 July 2012 in the public services, and lasted for two months.
3. 566. The Committee notes that, according to the Government, the Union of Social Affairs and Health Workers (SYNTASST) also participated in the strike called by the UST, despite having signed a memorandum of understanding with the authorities and having agreed to a three-year social truce, which expired in 2014. The Government considers that the staging of the strike represented a unilateral termination not only of the memorandum of understanding of 11 November 2011, but also of the memorandum of understanding between the Government and SYNTASST. In this regard, according to the Government, the situation could have escalated and public order could have been jeopardized. The Government alleges, in particular, that the strike affected essential services, thereby endangering the life and safety of the population. According to the Government, the UST, by preventing requisitioned state employees from working in certain essential services, is responsible for the death of several people. The strike is also in violation of Act No. 008/PR/2007 of 9 May 2007 regulating the exercise of the right to strike in public services.
4. 567. The Committee notes that, according to the complainant organization, the persistent refusal by the Government to respond to its demands under the pretext that the State did not have the necessary financial resources led it to adopt, in September 2012, a petition which denounces the poor governance in the management of the country’s financial resources. The intention of the complainant organization was to criticize the hoarding of the country’s wealth by the Head of State and the people close to him. The Committee observes that the Government considers this petition to be a political attack against the Head of State and his family.
5. 568. The Committee notes that, according to the complainant organization, the situation then became strained. In order to relieve the pressure, the UST agreed to a period of truce and to suspend the strike action. However, its officials were subjected to ongoing harassment until they were convicted, on 18 September 2012, for defamation and incitement to racial hatred, by the Attorney-General of the Republic, even though they had gone to the prosecution services to report an attempted kidnapping. The General Secretary, the President and the Vice-President of the UST were each given a suspended sentence of 18 months’ imprisonment and fined 1,000,000 CFA francs (equivalent to €1,550) for defamation and incitement to racial hatred, after a half-hour trial. Furthermore, the complainant organization alleges that, during the sentencing, a union activist, Mr Gustave MBaïlou Betar, was convicted for contempt of court and was sentenced to three months in prison and fined 300,000 CFA francs. He served his prison sentence under conditions that led to his death on 9 December 2012 at the General Hospital of National Reference. The Committee notes that the complainant organization is requesting the reversal of the rulings that were handed down.
6. 569. The Committee notes the Government’s statement that, following the publication of the petition, the judiciary was seized of the matter and brought charges against those considered to be responsible for it. Concerning the request by the UST to reverse the convictions of its officials, the Government states that it is for the judicial authorities to decide, in view of the independence of the judiciary.
7. 570. Noting the contents of the petition in question, the Committee wishes simply to recall the following principles in relation to the freedom of expression of trade unions and employers’ organizations: the right to express opinions through the press or otherwise is an essential aspect of trade union rights. The freedom of expression which should be enjoyed by trade unions and their leaders should also be guaranteed when they wish to criticize the government’s economic and social policy [See Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, paras 155 and 157]. The Committee trusts that the Government will ensure respect for these principles. Furthermore, it requests the Government to keep it informed of any appeals against the convictions of the UST officials and to indicate to it any final decision that is handed down in this regard.
8. 571. The Committee notes that, according to the complainant organization, despite its decision to observe the suspension until its expiry (31 March 2013), no contact was established between the parties throughout the suspension of the strike by the UST. This conduct by the Government led the workers to resume the strike. However, the Government allegedly threatened to apply Act No. 008/PR/2007 regulating the exercise of the right to strike in public services in order to declare the strikes illegal. The Committee notes that, in a press briefing, the Government stated that the UST’s strike was groundless, that it had decided to cancel the memorandum of understanding of 3 June 2011 with SYNTASST and the memorandum of understanding of 11 November 2011 with the UST and the CLTT, and that it reserved the right to apply the legislation in force to the requisitioned workers who would not return to work.
9. 572. The UST recalls that the legislation in question has been subject to the criticism of the Committee on Freedom of Association in a previous case (Case No. 2581) but has still not been amended as requested. On that occasion, the Committee had recalled the principles of freedom of association relating to the exercise of the right to strike in public services and the determination of a minimum service. It had requested the Government to take the necessary steps to review its legislation [see 354th Report, paras 1112–1115]. The Committee notes with regret that this matter continues to be the subject of follow-up by the Committee of Experts on the Application of Conventions and Recommendations, without there having been any reported progress (see 2013 comments on the application of Convention No. 87 by Chad). The Committee is bound to reiterate its previous recommendation, namely that it requests the Government to take the necessary steps to review, in consultation with the social partners concerned, its legislation relating to the exercise of the right to strike in public services (Act No. 008/PR/2007 of 9 May 2007) to ensure the determination of a minimum service in accordance with the principles of freedom of association. Noting that the Government has adopted an order (No. 624/PR/PM/2013) concerning the establishment of a tripartite Ad Hoc Negotiation Committee (CAN), to find ways, in accordance with section 1 of the order, to ensure the regular functioning of public and private services, the Committee urges the Government to keep it informed of the work of the CAN in this regard.
10. 573. Lastly, the Committee notes that the complainant organization alleges that reprisals were taken against the union officials who led the strike in the health sector, including the arbitrary administrative transfers of several UST officials (Mr Younouss Mahadjir, Mr François Djondang, Mr Montanan N’Dinaromtan, Ms Rachel Naty N’Doukolngone, Ms Djerane Laoumaye and Mr Richard Abdoulaye) in several of the country’s towns. In this regard, the Committee notes with interest the Government’s statement to the effect that, in order to demonstrate its good faith, it decided to review the demands that were considered by the UST to be a prerequisite for negotiation, including the outright cancellation of the re-assignments of the union officials and the non-withholding of the salaries of employees who went on strike. While welcoming this decision by the Government to calm the situation, the Committee nevertheless wishes to recall the principle that no one should be penalized for carrying out or attempting to carry out a legitimate strike [see Digest, op. cit., para. 660].

The Committee’s recommendations

1. 574. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to ensure the respect of the principles that it recalls in relation to the freedom of expression of employers’ and workers’ organizations, and to keep it informed of any appeals initiated against the convictions handed down in September 2012 against the officials of the Union of Trade Unions of Chad and to indicate any final decision rendered in this regard.
   • (b) The Committee notes with regret that, since its last recommendation on the need to amend Act No. 008/PR/2007 regulating the exercise of the right to strike in public services, there has been no reported progress. It is bound to, once again, request the Government to take the necessary steps to review, in consultation with the social partners concerned, its legislation relating to the exercise of the right to strike in public services (Act No. 008/PR/2007 of 9 May 2007) to ensure the determination of a minimum service in accordance with the principles of freedom of association. The Committee urges the Government to keep it informed of the work of the Ad Hoc Negotiation Committee (CAN) in this regard.