CMNT_TITLE

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Gabon (RATIFICATION: 1960)

Previous comment

The Committee notes the adoption of Act No. 022/2021 of 19 November 2021 issuing the Labour Code.

Article 3. Negotiated minimum service. In its previous comments, the Committee requested the Government to indicate the provisions adopted relating to the procedures for determining the list of sectors in which it is compulsory to provide a minimum service, the arrangements for the negotiation of this minimum service and any independent body envisaged to settle disagreements in the event of collective disputes. The Committee also asked the Government to hold negotiations with the social partners with a view to determining the characteristics of a minimum service in the event of a strike in the education sector. The Committee notes that the Government refers to the provisions of section 385 of the new Labour Code, which provides for a mandatory minimum service for all enterprises on declaration of strike action. In the event of a strike in an enterprise in which the total cessation of work would place public health, access to care, access to water and electricity or the equilibrium of the national economy at risk, the strike notice shall obligatorily be accompanied by a list of the days and hours at which a minimum service shall be provided, as well as of the staff required to provide the minimum service, which shall be equal to 40 per cent of activity, spread over the day, exclusive of breaks. Section 385 also provides that the practical arrangements for putting in place the minimum service, according to specific conditions, may be organized through sectoral collective agreements.

While observing that the minimum service was previously restricted to certain enterprises by reason of their social utility or their specific nature (section 348 of the Labour Code of 1994), and not applicable to all enterprises, as is the case under the new section 385, the Committee recalls that the maintenance of minimum services in the event of strikes should only be possible in certain situations, namely: (i) in services the interruption of which would endanger the life, personal safety or health of the whole or part of the population (or essential services “in the strict sense of the term”); (ii) in services which are not essential in the strict sense of the term, but in which strikes of a certain magnitude and duration could cause an acute crisis threatening the normal conditions of existence of the population; and (iii) in public services of fundamental importance. The committee also recalls that such a service should meet at least two requirements: (i) it must genuinely and exclusively be a minimum service, that is one which is limited to the operations which are strictly necessary to meet the basic needs of the population or the minimum requirements of the service, while maintaining the effectiveness of the pressure brought to bear; and (ii) since this system restricts one of the essential means of pressure available to workers to defend their interests, their organizations should be able, if they so wish, to participate in defining such a service, along with employers and the public authorities (see the 2012 General Survey on the fundamental Conventions, paragraphs 136–137). In light of the above, the Committee requests the Government to take the necessary measures to amend the provisions of section 385 as indicated.

Right of organizations to elect their representatives in full freedom. The Committee notes that under section 305 of the new Labour Code members of the executive board of a trade union that are of foreign nationality shall have resided in Gabon for five consecutive years having exercised a defined professional activity during that period, while the requirement under the former Labour Code (section 272) was 18 months’ residence. The Committee recalls that it considered that national legislation should allow foreign workers to take up trade union office, at least after a reasonable period of residence in the host country. For example it considered that a requirement of a period of residence of three years could be considered as being reasonable (see the 2012 General Survey on the fundamental Conventions, paragraph 103). In light of the above, the Committee requests the Government to consider taking measures to amend section 305 of the Labour Code and to report on any developments in this regard.

Article 2. Trade union rights of minors. The Committee notes that section 307 of the Labour Code provides that minors aged more than 16 years may join an organization of their own choosing unless such membership is opposed by their legal representatives. In the Committee’s opinion, this provision is contrary to Article 2 of the Convention. Accordingly, the Committee invites the Government to take measures with a view to modifying section 307 of the Labour Code to allow minors to join an organization of their own choosing, on attaining the minimum working age, without authorization on the part of their parents or guardians.

The Committee regrets that the adoption of the new Labour Code did not provide the opportunity to ensure greater conformity between its provisions and the requirements of the Convention and hopes that the Government will do its utmost to take the necessary measures in the near future.