Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Togo (RATIFICATION: 1983)

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Article 1 of the Convention.Protection against acts of anti-union discrimination. The Committee notes that, under the terms of section 267 of Act No. 2021-012 of 18 June 2021 issuing the Labour Code, “the termination of the employment [of a staff delegate] by decision of the employer without seeking the prior authorization of the labour inspector or despite the refusal of the latter, or in spite of the annulation by the Minister of Labour of the decision of the labour inspector to authorize termination of employment, shall give rise to an increase in damages and interest in the event that the abusive nature of the termination is confirmed by a court ruling. This increased amount shall be equivalent to six months’ gross wages.” The Committee observes in this regard that, in contrast with section 215 of the Labour Code of 2006, the revised version of the Labour Code does not appear to contain provisions on the reinstatement of a workers’ representative who has been subject to unjustified dismissal, even though reinstatement is the most effective remedy for acts of anti-union discrimination (2012 General Survey on the fundamental Conventions, paragraphs 182 and 185). Emphasizing the importance of anti-union dismissals resulting in sufficiently dissuasive penalties, the Committee requests the Government to provide further information on the compensation that may be imposed by the labour tribunal in such cases, with an indication in particular of whether the tribunal is empowered to reinstate dismissed workers.

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The Committee notes the adoption of Act No. 2120-012 of 18 June 2021 issuing the Labour Code. The Committee also notes the joint observations of the Synergy of Workers of Togo (STT) and the National Federation of Independent Unions of Togo (UNSIT), received on 31 October 2022, in which they allege, in particular, the absence of consultation of trade unions in the process of the formulation and adoption of the Labour Code. The Committee requests the Government to provide its comments in this regard.

Article 4 of the Convention. Compulsory arbitration. With reference to its previous comments on the need to amend section 260 of the Labour Code of 2006, the Committee notes with satisfaction that, under the terms of section 313 of the new Labour Code, only the parties concerned, and no longer the Minister of Labour, may decide in agreement to have recourse to a single arbitrator or an arbitration board in the event of the failure of conciliation.

Promotion of collective bargaining in practice. The Committee notes the information on the collective agreements in force, of which there are 14, with the most recent, which was concluded in December 2020, covering the pharmaceutical sector. The Committee requests the Government to continue providing information on the number of collective agreements concluded and in force in the country, and on the sectors concerned and the number of workers covered.

The Committee is raising other matters in a request addressed directly to the Government.

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Article 4 of the Convention. Compulsory arbitration. The Committee recalls that its previous comments were concerned with section 260 of the Labour Code, which provides that, in the event of persistent disagreement between the parties to collective bargaining on certain points in a collective dispute, the Minister of Labour may submit the matter to an arbitration board following the failure of conciliation. The Committee recalled that the provision in question was contrary to the principle of the autonomy of the parties and the principle of free and voluntary negotiation set out in Article 4 of the Convention. The Committee recalls that compulsory arbitration is only acceptable in relation to public servants engaged in the administration of the State (Article 6), essential services in the strict sense of the term and acute national crises. The Committee notes that the Government reiterates that the amendment of section 260 is envisaged as part of the overall revision of the Labour Code. The Committee trusts that section 260 of the Labour Code will be amended in the near future so as to bring it into full conformity with the Convention and requests the Government to provide information on any developments in this regard.

Promotion of collective bargaining in practice. The Committee notes the information on the six collective agreements in force in Togo, the most recent of which, adopted in December 2016, is concerned with the commercial sector. The Committee requests the Government to continue providing information on the number of collective agreements concluded and in force in the country, the sectors concerned, and the number of workers covered by these agreements.

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Article 4 of the Convention. Development of collective bargaining. The Committee notes the information provided by the Government regarding the conclusion in October 2012 of a new collective agreement for the free zone, the revision of the collective agreement in the oil sector adopted in January 2013, and the adoption in August 2013 of the collective agreement in banks and financial and insurance institutions. The Government also indicates that the will of the authorities to promote collective bargaining is also demonstrated by the establishment of a social dialogue and industrial relations department for this purpose. The Committee requests the Government to continue providing detailed information on the collective agreements concluded, the sectors and numbers of workers covered and the measures taken by the authorities to promote collective bargaining.

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Article 4 of the Convention. Compulsory arbitration. The Committee recalls that its previous comments concerned section 260 of the Labour Code, which provides that, in the event of persistent disagreement between the parties to collective bargaining on certain points in a collective dispute, the Minister of Labour may submit the matter to an arbitration board following the failure of conciliation. The Committee recalled that the provision in question is contrary to the principle of the autonomy of the parties and the principle of free and voluntary negotiation set out in Article 4 of the Convention. The Committee recalls that compulsory arbitration is only acceptable in relation to public servants engaged in the administration of the State (Article 6 of the Convention) essential services in the strict sense of the term and acute national crises. The Committee notes the Government’s indication that the amendment of the section 260 is envisaged as part of the overall revision of the Labour Code. The Committee hopes that section 260 of the Labour Code will be amended as part of the ongoing revision of the Labour Code so as to bring it into full conformity with the Convention. and requests the Government to provide information on any developments in this regard.

The Committee is raising other matters in a request addressed directly to the Government.

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Observations by the International Trade Union Confederation (ITUC). The Committee notes the ITUC’s observations, dated 31 July 2012, on the lack of dialogue with the trade union organizations recently established in the export processing zones, especially with respect to the revision of legal texts on working conditions in the export processing zone. The Committee requests the Government to submit its observations in reply to the allegations made by the ITUC.

Article 4 of the Convention. Bargaining between employers’ and workers’ organizations in practice. The Committee notes with interest the Government’s indication that the inter-occupational collective agreement has been revised following negotiations held in 2011 between the National Employers’ Council of Togo and six central trade union confederations; this collective agreement entered into effect in January 2012 and was extended to all sectors of activity and all non-signatory social partners pursuant to the Government order of 21 August 2012. The Committee also notes that bargaining is under way in the banking and insurance sector, in oil companies and in the oil transport services with a view to revising their respective collective agreements. Finally, the Committee notes that negotiations have also begun or are planned in various sectors such as the media, private teaching, work in the export processing zone, private health institutions, as well as the trade and services sectors. The Committee notes the figures provided by the Government on the number of workers covered by collective agreement in the public and private sectors, as well as in the export processing zone. Finally, the Committee takes note of the various measures taken by the Government to promote collective bargaining by means of social dialogue forums or the national media. The Committee requests the Government to continue providing detailed information on the collective agreements concluded, the sectors and number of workers covered, and the measures taken by the authorities to promote collective bargaining.

Compulsory arbitration. The Committee recalls its previous comments on section 260 of the Labour Code which stipulates that, in the event of persistent disagreement between the parties to collective bargaining on certain points in a collective dispute, the Minister of Labour might submit the matter to a arbitration board following the failure of conciliation. The Committee noted that the section in question was contrary to the principle of the autonomy of the parties and the principle of free and voluntary negotiation envisaged in the Convention. It had consequently requested the Government to amend the legislation with a view to providing that compulsory arbitration was only possible upon the request of the two parties to the dispute or in the context of disputes relating to essential services in the strict sense of the term or, in the public service, in the case of public servants exercising authority in the name of the State or in a case of acute national crisis. The Committee notes the Government’s indication that it undertakes to initiate consultations in the tripartite dialogue bodies on the possibility of amending the settlement procedure of collective labour disputes. The Committee requests the Government to inform it of any new developments concerning the amendment of section 260 of the Labour Code to bring it in line with the principles of the Convention.

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Sections 25 and 26 of the Labour Code. The Committee recalls that, under the terms of section 25 of the Labour Code, the representative nature of a workers’ or employers’ organization is recognized by decision of the Minister of Labour, that this decision may be appealed to the administrative tribunal, and that the criteria of representativeness are to be determined by order of the Minister of Labour, in accordance with section 26. In its previous comments, the Committee asked the Government to indicate whether these criteria of representativeness had been determined. The Committee notes the Government’s indication in its report that, in agreement with the social partners, it was agreed that the determination of the representative nature of trade union organizations would be carried out by means of trade union elections. The Committee notes the Government’s further indication that these elections should be held by the end of 2010 and that support has been requested from ILO–PAMODEC. Finally, the Government’s report indicates that the principal basic texts prepared for this purpose have been approved by the National Council for Labour and Social Legislation (CNTLS) and adopted by the Government, namely:

–      the Order determining the criteria for the representativeness of trade union organizations;

–      the Order respecting the election of staff delegates in the private and para-public sectors; and

–      the Order establishing a tripartite national unit on representativeness (responsible for supervising the elections and compiling and publishing the results).

Recalling the importance of ensuring that the representative nature of organizations is based on objective and predetermined criteria, the Committee requests the Government to provide copies of these Orders with its next report and to supply information on the outcome of the elections referred to above.

Section 60 of the Labour Code. The Committee notes that, under the terms of section 60 of the Labour Code, the dismissal of workers due to their membership or non-membership of a union shall be considered, among other criteria, as being abusive. The Committee recalls that, under the terms of the Convention, workers should also benefit from adequate protection against any acts prejudicial to them, including dismissal, which are motivated by their participation in legitimate trade union activities. The Committee notes the Government’s indication in its report that section 60 of the Labour Code is not the only provision protecting workers against discriminatory measures on the grounds of their participation in legitimate trade union activities, and that it has to be read in conjunction with sections 39, 220 and 301 of the Labour Code which are intended to afford protection to workers against any discriminatory measures, including dismissal, on the grounds of their participation in trade union activities and mutual benefit societies, and particularly the exercise of the right to strike. The Committee further notes the Government’s indication in its report that these provisions apply to all enterprises, whether they are public, para-public or private, and its indication of the penalties applicable in the event of violations of the provision.

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The Committee notes the Government’s reply to the observations of 2006, 2008 and 2009 of the International Trade Union Confederation (ITUC). The Committee also notes the communication from the ITUC dated 24 August 2010.

Article 1 of the Convention. Export processing zones. With regard to the difference in the protection against anti-union discrimination, alleged by the ITUC in its 2009 comments, between workers in export processing zones and other workers, the Committee refers to its comments on the application of the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87).

Article 4. Measures to encourage and promote the development of voluntary negotiation between employers’ and workers’ organizations. In its previous observation, the Committee requested the Government to provide information on the exercise of collective bargaining in practice. The Committee notes that, in its comments dates 26 August 2009, the ITUC indicates in this respect that, while the right to collective bargaining exists, it is limited to a single agreement that has to be negotiated at the national level and obtain the approval of the Government representatives and of trade unions and employers. The ITUC adds that the agreement establishes the national wage standards for all employees in the formal sector. The Committee notes the Government’s emphasis in its report that employers’ and workers’ organizations negotiate freely their conditions of work without any interference by the public authorities and that, in addition to the tripartite protocol agreement referred to by the ITUC, several collective agreements have been concluded in the various sectors. The Committee notes the Government’s indication that certain of these agreements were renegotiated by the social partners in 2008 and 2009, in fields such as banking, insurance, telecommunications and the oil sector, and that collective agreements are also currently being negotiated in sectors which are not yet covered by them, such as lay and religious private teaching, private health institutions and the mining industry. The Committee also notes the Government’s indication in its report that the renegotiation by the social partners of the inter‑occupational collective agreement (dating from the 1970s), with the support of the United Nations Development Programme (UNDP) was also planned in July 2010. The Committee recalls that the right to negotiate freely with employers concerning conditions of work is an essential element of freedom of association and that the promotion of collective bargaining is applicable in both the private sector and in nationalized enterprises and public institutions. The Committee requests the Government to provide information in its next report concerning:

–      the number of collective agreements concluded, their coverage and the action taken as a result;

–      the exercise of collective bargaining in practice (the number of workers and sectors covered, including the public service); and

–      the measures taken by the authorities to promote collective bargaining (publications, seminars and other activities).

In particular, the Committee requests the Government to provide information with its next report on the renegotiation, with the support of the UNDP of the inter-occupational collective agreement dating from the 1970s.

Section 260 of the Labour Code. In a previous direct request, the Committee noted that, under the terms of section 260 of the Labour Code, in the event of persistent disagreement between the parties to collective bargaining on certain points in a collective dispute, the Minister of Labour may submit the matter to an arbitration board following the failure of conciliation and that, according to the Government, this consists of purely judicial arbitration that is envisaged following the exhaustion of all other means. The Committee wishes to draw the Government’s attention to the fact that section 260 of the Labour Code, which provides for arbitration imposed by the authorities, without the parties to the dispute requesting it, is contrary to the principle of the autonomy of the parties and the principle of free and voluntary negotiation envisaged in the Convention. The Committee therefore requests the Government to take measures to amend the legislation with a view to providing that compulsory arbitration is only possible at the request of the two parties to the dispute or in the context of disputes relating to essential services in the strict sense of the term or, in the public service, in the case of public servants exercising authority in the name of the State.

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The Committee noted previously the adoption of Act No. 2006-010 of 13 December 2006 issuing the Labour Code and drew the Government’s attention to certain provisions.

Sections 25 and 26 of the Labour Code. The Committee notes that, under the terms of section 25 of the Labour Code, the representative nature of a workers’ or employers’ organization is recognized by decision of the minister responsible for labour, and that this decision may be appealed to the administrative tribunal. It further notes that the criteria of representativeness shall be determined by order of the minister responsible for labour, in accordance with section 26 of the Labour Code. The Committee previously requested the Government to indicate whether these criteria of representativeness have been established and, if so, to provide any texts issued under sections 25 and 26 of the Labour Code. The Committee notes that, according to the Government’s report, this provision was adopted following broad consultation with the social partners; however, the next session of the National Council for Labour and Social Legislation should decide whether or not to validate these provisions. The Committee hopes that in the future the representative nature of organizations will be based on objective and pre-determined criteria and it requests the Government to provide information in this respect.

Section 60 of the Labour Code. The Committee notes that, by virtue of this provision, the dismissal of workers due to their membership or non-membership of a union shall be considered, among other criteria, as not being a valid reason for dismissal. The Committee recalls that, under the terms of the Convention, workers should also benefit from adequate protection against any acts prejudicial to them, including dismissal, which are motivated by their participation in trade union activities. The Committee notes that, according to the Government, any discrimination by an employer against a trade union organization gives rise to penal sanctions. The Committee observes that its request relates to acts of anti‑union discrimination against workers, and not against organizations. The Government is requested to take the necessary measures to amend the legislation with a view to ensuring the protection of workers against any discriminatory measures, including dismissal, by reason of their participation in trade union activities.

Section 260 of the Labour Code. The Committee observes that, by virtue of this provision, in the event of persistent disagreement between the parties to collective bargaining on certain points in a collective dispute, the minister responsible for labour may submit the matter to an arbitration board following the failure of conciliation. According to the Government, this consists of purely judicial arbitration that is envisaged following the exhaustion of all other means. In this respect, the Committee wishes to draw the Government’s attention to the fact that section 260 of the Labour Code, which provides for arbitration imposed by the authorities, without the parties to the dispute requesting it, is contrary to the principle of the autonomy of the parties and the principle of free and voluntary negotiation envisaged in the Convention. The Committee therefore requests the Government to take measures to amend the legislation with a view to providing that compulsory arbitration is only possible at the request of the two parties to the dispute or in the context of disputes relating to essential services in the strict sense of the term, or for public servants exercising authority in the name of the State.

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The Committee notes that the Government’s report does not reply to the comments made in 2006, 2008 and 2009 by the International National Trade Union Confederation (ITUC), according to which the right to collective bargaining is confined to a single agreement that has to be negotiated at the national level and needs to obtain the approval of Government representatives, as well as of trade unions and employers. The ITUC further indicate that workers in export processing zones do not benefit from the same protection against anti-union discrimination as other workers. The Committee requests the Government to take all the necessary measures to give full effect to the Convention, and to submit these points to tripartite discussion. The Committee requests the Government to provide information in this respect as well as on the exercise of collective bargaining in practice (the number of workers and sectors covered, including the public service, and promotional measures undertaken by the authorities).

The Committee is raising other points in a request addressed directly to the Government.

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The Committee notes the adoption of Act No. 2006-010 of 13 December 2006 issuing the Labour Code and wishes to draw the Government’s attention to certain provisions.

Sections 25 and 26 of the Labour Code. The Committee notes that, under the terms of section 25 of the Labour Code, the representative nature of a workers’ or employers’ organization is recognized by decision of the Minister responsible for labour, and that this decision may be appealed to the administrative tribunal. It further notes that the criteria of representativeness shall be determined by order of the Minister responsible for labour in accordance with section 26 of the Labour Code. The Government is requested to indicate whether these criteria of representativeness have been established and to provide any texts issued under sections 25 and 26 of the Labour Code.

Section 60 of the Labour Code. The Committee notes that, by virtue of this provision, the dismissal of workers due to their membership or non-membership of a union shall be considered, among other criteria, as not being a valid reason for dismissal. The Committee recalls that under the terms of the Convention, workers should also benefit from adequate protection against any acts prejudicial to them, including dismissal, which are motivated by their participation in trade union activities. The Government is requested to take the necessary measures to amend the legislation so as to ensure the protection of workers against any discriminatory measures, including dismissal, by reason of their participation in trade union activities.

Section 260 of the Labour Code. The Committee observes that, by virtue of this provision, in the event of persistent disagreement between the parties to collective bargaining on certain points in a collective dispute, the Minister responsible for labour may submit the matter to an arbitration board following the failure of conciliation. In this respect, the Committee wishes to draw the Government’s attention to the fact that section 260 of the Labour Code, which provides for arbitration imposed by the authorities without the parties to the conflict so requesting, is contrary to the principles of the autonomy of the parties and of free and voluntary bargaining established in the Convention. The Committee therefore requests the Government to take measures to amend the legislation so as to ensure that compulsory arbitration is only possible at the request of both parties to the dispute, or in the context of disputes relating to essential services in the strict sense of the term or, for public servants exercising authority in the name of the State.

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The Committee notes with regret that the Government’s report has not been received for the third consecutive year.

The Committee notes the observations made by the International Trade Union Confederation (ITUC) in 2006 and 2008, according to which the right to collective bargaining is confined to a single agreement that has to be negotiated at the national level and needs to obtain the approval of Government representatives, as well as of trade unions and employers. The ITUC further indicates that workers in export processing zones do not benefit from the same protection against anti-union discrimination as other workers. The Committee requests the Government to reply to the ITUC’s observations in its next report.

The Committee is raising other matters in a request addressed directly to the Government.

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The Committee notes that the Government’s report has not been received.

It also notes the comments of the International Confederation of Free Trade Unions (ICFTU) of 10 August 2006, according to which the right to collective bargaining is limited to a single agreement that must be negotiated at national level and approved by government representatives as well as trade unions and employers. Moreover, the ICFTU points out that employees in free zones do not enjoy the same protection against anti-union discrimination as other workers. The Committee requests the Government to respond to these comments in its next report.

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The Committee notes the Government's report on the application of the Convention.

1. In its previous requests, the Committee noted the absence in the legislation of specific penal sanctions in the event of acts of anti-union discrimination such as those described in section 4(2) of the Labour Code.

In its report, the Government refers to section 225 of the Labour Code. However, the Committee is bound to note that, although this provision lays down fines in the event of violations of section 4 of the Code, it only covers the administrators of trade unions and the managers of mutual benefit funds.

The Committee points out that, when legislation prohibits any act of anti-union discrimination in employment, it would be desirable for penal sanctions to be laid down in order to provide adequate protection for workers against such acts.

The Committee requests the Government to indicate in its next report the measures that have been taken in order to include in the legislation sufficiently dissuasive penal sanctions against employers who are found to be guilty of acts of anti-union discrimination.

2. In reply to its request concerning the right of public servants (other than those engaged in the administration of the State) to negotiate the terms and conditions of their wages and employment and the procedures for doing so, the Committee takes due note, from the Government's report, that all public servants have trade unions through which they can negotiate the terms and conditions of their wages and employment.

With reference to section 82 of the Labour Code, the Committee notes that public sector employees (in services, enterprises and establishments) can negotiate, in accordance with the provisions of the Labour Code (sections 64 to 81), unless they are subject to special legislation or regulations laying down their conditions of service.

In the event of specific texts being adopted, the Committee requests the Government to indicate the extent to which the workers concerned enjoy the right to negotiate the terms and conditions of their wages and employment through their trade unions and the procedures that exist for doing so. The Committee also requests the Government to supply any texts that have been adopted in this respect.