Report in which the committee requests to be kept informed of development - REPORT_NO333, March 2004

CASE_NUMBER 2288 (Niger) - COMPLAINT_DATE: 17-JUN-03 - Closed

Allegations: Refusal by the Government to negotiate in good faith on the working conditions of public servants with regard to pay scale, retirement age, promotions and the payment of salary arrears; government interference in union affairs; non-payment of salaries and the redundancy of 179 public servants after a public institution was franchised to the private sector; restriction of the right to strike of customs officials; interference in the exercise of the right to strike by means of the abusive requisitioning of workers

1. 805. In a communication dated 17 June 2003, the Democratic Confederation of Workers of Niger (CDTN) presented a complaint of violations of freedom of association against the Government of Niger.
2. 806. The Government sent its comments and observations in a communication dated 5 November 2003.
3. 807. Niger has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 808. In its communication dated 17 June 2003, the CDTN alleges that the Government of Niger targeted workers’ benefits and took various measures to cut back on salaries in order to implement its structural adjustment policy. The CDTN claims that these cutbacks took the form of a series of unilateral measures on the part of the Government: lowering of the salary scale for public servants; withdrawal of certain allowances, including weighting allowance; accumulation of salary arrears, for payment of which workers are at the mercy of the State; blocking, of promotions, at both the financial and administrative levels; reduction in the length of working life due to changes in conditions for retirement.
2. 809. With regard to the reduction of salary payments, the CDTN alleges that the Government’s approach was biased and that the cutback measures were unevenly applied: entire sectors with autonomous status were spared, such as higher education, the magistracy and the army.
3. 810. The CDTN adds that the basis for the salary negotiations in the last quarter of 2002 was set out in an agreement concluded on 19 December 2001. It was in this context that the organization presented the Government with a list of demands containing its chief concerns regarding the salary reduction measures. The CDTN alleges that the chief cause of conflict with the Government is the latter’s refusal to negotiate on the sole basis that such was its will. It maintains that the Government has not held to its commitments of 19 December 2001 and that the planned negotiations, which began on 6 December 2002, have still not been concluded. The CDTN states that, during three months of strike action, only two sessions of negotiation were organized, on 2 and 5 May 2003, and that, even then, there was no genuine or sincere discussion.
4. 811. The complainant also stresses that, although a joint commission was set up to assess the impact of the change in the conditions for retirement, as per the agreement of December 2001, it has not yet presented its conclusions. With regard to conditions for promotion, the CDTN alleges that the promise to renew the work of the commissions has remained nothing more than a promise; although it was announced in January 2002 that funds would be provided for promotions and regradings, these funds were blocked from June 2002. The CDTN also alleges that, despite commitments to the contrary, the Government has not yet calculated the cost of all the allowances that must be paid in arrears, or of promotions and regradings, with a view to determining methods of payment for them. As regards the payment of salary arrears, the CDTN alleges that the Government is not properly respecting the payment schedule that was drawn up.
5. 812. Furthermore, the CDTN alleges that the Government interfered in union matters, notably regarding the equitable distribution of state funds made available to union organizations, subsidies and access to representation on committees, councils and joint commissions where workers’ problems are discussed.
6. 813. On behalf of its affiliate union, the Trade Union of University Student Support Services Officials (SYANU), the complainant states that the management of the National Centre for University Student Support Services (CNOU) was transferred to private organizations, which resulted in the non-payment of salaries from December 2002 and the collective redundancy of the entire personnel of 179 public servants.
7. 814. With regard to another affiliate organization, the National Trade Union of Customs Officials (SNAD), the CDTN contests Decree No. 2000-160 of 23 May 2000, which deprives customs officials of recourse to any industrial action save work-to-rule.
8. 815. On a general note, the CDTN claims that Ordinances Nos. 96-09 and 96-10 of 21 March 1996 and implementing Decree No. 96-92 of 14 April 1996 are too restrictive. It alleges that an order was given by the Prime Minister in a letter of 8 May 2003 to draw up lists of the names of strikers with a view to making deductions from their wages as a result of the strike. It also alleges that workers in various sectors have been forced to return to work through abusive requisitioning. The Government is thus ignoring the recommendations of the Committee of Experts on the Application of Conventions and Recommendations concerning the qualification of sectors which have been abusively considered as vital or strategic.

B. The Government’s reply

1. 816. In its communication of 5 November 2003, the Government explains that the measures mentioned above, namely, the revision of the salary scale, the withdrawal of certain allowances, the freeze on promotions, the accumulation of salary arrears and the early retirement of workers, are of a purely economic nature, adopted to redress the country’s economic situation, which has been deteriorating for the last 20 years.
2. 817. The Government does not deny that public servants are poorly paid, nor that the rescue package chosen has affected workers’ pay. Nevertheless, it stresses that a significant proportion of internal resources is spent each year on managing the wage bill.
3. 818. The Government stresses that, since its accession in 2000, it has made significant efforts to improve the situation of public servants. It has broken with the practice of accumulating arrears in salaries; ordinary salaries are now paid when due. With regard to arrears from previous years, the Government states that a settlement mechanism has been elaborated with the workers’ representatives, and has been successfully implemented. In respect of the freeze on promotions, the Government states that the restriction has been lifted since 2002 and that, since then, promotions have been granted normally and their financial effects reflected in the wages. On the question of retirement, the Government states that the entry into force of the current legislation has meant that the two conditions established by the previous legislation (55 years of age and 30 years of service) no longer have to be counted cumulatively. The Government adds that it has noted the concerns of the CDTN and has undertaken to carry out a study to assess the impact of the ordinance in question.
4. 819. As regards the allegations of government interference in union matters, the Government emphasizes that trade union pluralism has existed only since 1996. This raises the question of how to determine the representativeness of existing organizations. According to the Government, the CDTN is demanding an immediate reassessment of the representations made by the already existing trade union confederations and of certain benefits which they enjoy. The Government states that its very neutrality renders a response to this demand difficult. For the moment, therefore, until the question of how to determine the representativeness of occupational organizations is resolved, the trade union confederations are all granted equal treatment. The Government states that solving this problem is one of its major concerns. It adds that a tripartite commission, charged with the implementation of the recommendations, was established by order in June 2003, and that, with ILO technical assistance, one-day conferences were held in Niamey in June 2002, on the right to strike and the representativeness of occupational organizations. The tripartite commission has begun its work but is facing certain budgetary constraints.
5. 820. As regards the non-payment of salaries to CNOU employees, the Government states that only two months’ salaries still remain to be paid. This is due to an administrative error, which the Government will take steps to correct. The Government adds that the CNOU was managed in an unsatisfactory manner; it therefore became necessary to put this institution out to franchise. It states that the workers who were made redundant were given their severance pay and were granted priority of recruitment, in accordance with the provisions of the Labour Code. It affirms that several of these workers have already been rehired by the CNOU.
6. 821. With regard to public servants’ right to strike, the Government explains that the exercise of this right is governed by Ordinances Nos. 96-09 and 96-10 of 21 March 1996, and also by Decree No. 96-92 of 14 April 1996. It states that these provisions were adopted after a lengthy discussion process between the administration and the trade union confederation of the day, which took place in the context of a joint consultative committee. In the course of these discussions the substance of the workers’ proposals was taken into account. The Government affirms that despite this fact, deliberate resort to strike action without prior warning and without providing a minimum service has become the principal means of struggle for certain trade unions.
7. 822. In regard to the customs officials’ case in particular, the Government states that the only option for industrial action available to these officials is work-to-rule, as the law considers customs officials to be covered by the provisions of Article 9 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), which applies to the armed forces and the police. The Government, however, points out that it has entered into a consultation procedure with the social partners, with the aim of reviewing this legislation.
8. 823. As regards the issue of the difficulties in dialogue raised by the CDTN, the Government states that, since the creation of the draft agreements mentioned by the CDTN, it has held several rounds of negotiation with the CDTN, most recently in November 2003. It adds that the demands of the CDTN have now been met to a large extent.

C. The Committee’s conclusions

1. 824. The Committee notes that in this case the complainant makes the following allegations: restriction of the right to collective bargaining; refusal by the Government to negotiate in good faith on the working conditions of public servants (pay scale, retirement age, promotions, payment of salary arrears) in violation of written commitments; government interference in union affairs; non-payment of salaries and the redundancy of 179 public servants after a public institution was franchised to the private sector; restriction of the right to strike of customs officials; and government interference in the exercise of the right to strike by means of the abusive requisitioning of workers, on the basis of overly restrictive regulation.
2. 825. As regards the allegations concerning the unilateral adoption of economic measures by the Government to reduce salary payments to public servants, the Committee notes the Government’s statement that these were purely economic measures, taken with the purpose of reducing the significant proportion of internal resources spent each year on managing the wage bill of public servants, in order to redress the difficult economic situation in which the country has found itself for the last 20 years. In respect of the allegations of difficulties in negotiations between the Government and the CDTN, and of the Government’s non-compliance with agreements concluded between the two parties, the Committee notes the Government’s statement that several negotiating sessions have been held with respect to the list of demands of the CDTN and that these demands have now been met to a large extent.
3. 826. While the Committee is not in a position to assess the seriousness of the financial and budgetary difficulties facing the government, it nevertheless considers that the authorities should give preference to collective bargaining in determining the conditions of employment of public servants. The Committee considers that it is essential that workers and their organizations be able to participate fully and meaningfully in designing the overall bargaining framework, which implies in particular that they must have access to all the financial, budgetary and other data enabling them to assess the situation on the basis of the facts. In circumstances where collective bargaining is ruled out, unilateral measures should be limited in time and protect the standard of living of the workers who are the most affected. In other words, a fair and reasonable compromise should be sought between the need to preserve as far as possible the autonomy of the parties to bargaining, on the one hand, and measures which must be taken by governments to overcome their budgetary difficulties, on the other [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 899]. The Committee recalls the importance which it attaches to the obligation to negotiate in good faith, and recalls that it is important that both employers and trade unions make every effort to reach an agreement, since genuine and constructive negotiations are a necessary component to establish and maintain a relationship of confidence between the parties [see Digest, op. cit., paras. 814-815]. Moreover, the Committee recalls that agreements should be binding on the parties, and hence respected by them [see Digest, op. cit., para. 818]. In these circumstances, the Committee urges the Government to take into consideration these principles in the future.
4. 827. In respect of the allegations concerning government interference in union matters, particularly regarding the equitable distribution of state funds made available to union organizations, subsidies and access to representation, the Committee takes note of the Government’s statements according to which trade union pluralism has existed in Niger for only a few years, and while waiting for a regulation to apply on the issue of trade unions’ representativeness, the trade union confederations are all granted equal treatment. The Committee considers that the determination of the most representative trade union should always be based on objective, precise, pre-established criteria laid down in legislation. Such a determination should not be left to the discretion of governments, so as to avoid any opportunity for partiality or abuse. Moreover, this distinction should not have the effect of depriving those trade unions that are not recognized as being amongst the most representative of the essential means for defending the occupational interests of their members [see Digest, op. cit., paras. 310, 314 and 315]. Noting also that a tripartite commission, with input from an ILO technical assistance mission, has been entrusted with this matter, the Committee urges the Government to take swift measures to ensure, by legislative or other means, that the representativeness of trade union organizations is determined on the basis of criteria that are in conformity with freedom of association principles, and requests to keep it informed in this respect.
5. 828. The Committee notes the allegations concerning the franchising of the National Centre for University Student Support Services (CNOU) to private parties, resulting in the non?payment of salaries from December 2002 and the collective redundancy of 179 public servants. The Committee notes that according to the Government only two months’ salaries remain to be paid at this time, owing to an administrative error, and the workers who were made redundant received severance pay and were granted priority of recruitment, in accordance with the provisions of the Labour Code. The Committee recalls that, whether or not economic restructuring or rationalization programmes or measures involve personnel reductions or the transfer of services from the public to the private sector, it can make pronouncements on allegations concerning such programmes or measures only in so far as they have resulted in acts of anti-union discrimination or interference. In this case, no such allegation has been made. However, the Committee emphasizes that it is important that governments consult with trade union organizations to discuss the consequences of restructuring programmes on employment and working conditions of employees [see Digest, op. cit., para. 937]. The Committee urges the Government to consult with union organizations when envisaging rationalization or restructuring programmes in enterprises or public institutions in the future.
6. 829. In regard to the allegations concerning the National Trade Union of Customs Officials (SNAD), the Committee notes that, according to the decree giving special status to customs officials, the only recognized means for them to defend their collective interests is work-to-rule. The Government maintains that customs officials are covered by the provisions of Article 9 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) which provides for the exemption of the armed forces and the police. However, the Committee recalls that, while Article 9 of the Convention does authorize exceptions to the general principle, the workers who can be excluded should be defined in a restrictive manner [see Digest, op. cit., para. 222]. The Committee therefore considers that customs officials are covered by Convention No. 87 and that they therefore have the right to organize. It nevertheless recalls that the right to strike can be restricted or even withdrawn in the following cases: for public servants exercising authority in the name of the State, in essential services in the strict sense of the term (that is, services the interruption of which would endanger the life, personal safety or health of the whole or part of the population) or in the event of an acute national emergency [see Digest, op. cit., paras. 527?528]. In the opinion of the Committee, certain customs officials are, indeed, public servants exercising authority in the name of the State. However, the Committee recalls that, where the right to strike is restricted or prohibited, adequate protection should be given to the workers to compensate for the limitation thereby placed on their freedom of action with regard to disputes with their employer. Therefore, restrictions on the right to strike should be accompanied by adequate, impartial and speedy conciliation and arbitration proceedings in which the parties concerned can take part at every stage and in which the awards, once made, are fully and promptly implemented [see Digest, op. cit., paras. 546-547]. The Committee further recalls that in mediation and arbitration proceedings it is essential that all the members of the bodies entrusted with such functions should not only be strictly impartial but, if the confidence of both sides, on which the successful outcome even of compulsory arbitration really depends, is to be gained and maintained, they should also appear to be impartial both to the employers and to the workers concerned [see Digest op. cit., para. 549]. The Committee requests the Government to ensure that compensatory guarantees of this type are granted to the customs officials and to keep it informed in this respect.
7. 830. In regard to the allegation by the CDTN that an order was given by the Prime Minister in a letter of 8 May 2003 to draw up lists of the names of strikers with a view to making deductions from their salaries as a result of the strike, the Committee considers that salary deductions for the days of strike do not, in principle, raise problems from the point of view of freedom of association.
8. 831. As regards the allegations concerning the abusive requisitioning of workers during strike periods, and the overly restrictive regulation of the right to strike, the Committee notes that the right to strike is regulated by Ordinances Nos. 96-09 and 96-10 of 21 March 1996 and by implementing Decree No. 96-92 of 14 April 1996. Article 9 of Ordinance No. 96-09 of 21 March 1996 provides that, in exceptional cases arising as a result of the need to preserve the general interest, all state employees, and those of territorial authorities, may be requisitioned. In the view of the Committee, the scope of this provision should be restricted only to cases in which a work stoppage may give rise to an acute national crisis or to public servants exercising authority in the name of the State, or also to essential services in the strict sense of the term, i.e. services the interruption of which would endanger the life, personal safety or health of the whole or part of the population. The Committee recalls that the use of requisitioning orders to break a strike over occupational claims, unless these actions aim at maintaining essential services or in circumstances of the utmost gravity, constitutes a serious violation of freedom of association [see Digest, op. cit., para. 573]. The Committee emphasizes that the Committee of Experts on the Application of Conventions and Recommendations has already drawn the Government’s attention to this matter. The Committee urges the Government to take the necessary steps to amend the legislation in this respect and to keep it informed of developments.

The Committee's recommendations

1. 832. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) As regards the measures taken by the Government to cut back on salaries and the non-compliance on its part with agreements concluded between the Government and the CDTN, the Committee requests the Government to give preference to collective bargaining in determining the conditions of employment of public servants and to respect the agreements which it has freely concluded on this issue.
   • (b) The Committee requests the Government to take the necessary measures swiftly, so as to ensure, by legislative or other means, that trade union representativeness is determined on the basis of criteria which are in conformity with freedom of association principles and to keep it informed in this respect.
   • (c) The Committee requests the Government to consult with trade unions in the future when envisaging rationalization or restructuring programmes in public enterprises or institutions.
   • (d) The Committee requests the Government to ensure that compensatory guarantees, such as conciliation and arbitration proceedings, be granted to customs officials who have been deprived of the right to strike and to keep it informed in this respect.
   • (e) The Committee requests the Government to make swift amendments to the legislation to restrict requisition orders to essential services in the strict sense of the term, to public servants exercising authority in the name of the State and to situations of acute national crisis, and to keep it informed in this respect.