Report in which the committee requests to be kept informed of development - REPORT_NO351, November 2008

CASE_NUMBER 2618 (Rwanda) - COMPLAINT_DATE: 19-NOV-07 - Closed

Allegations: The complainant complains of difficulties encountered by trade unions in carrying out their activities at certain enterprises, and of the facilities and advantages granted by the authorities to one trade union association to the detriment of others

1. 1284. The complaint is contained in a communication dated 17 November 2007 from the Inter-union of Workers of Rwanda (ITR), which comprises the following trade unions: the Congress of Labour and Fraternity in Rwanda (COTRAF–RWANDA), the National Council of Free Trade Unions (COSYLI), the UMURIMO Association of Christian Trade Unions (ASC–UMURIMO) and the Independent Rwandan Confederation of Trade Unions and Workers’ Associations (CRISAT).
2. 1285. The Government sent its observations in a communication dated 19 May 2008.
3. 1286. Rwanda 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. 1287. In a communication dated 19 November 2007, the ITR complains of the difficulties encountered by certain trade union associations in carrying out their activities at various enterprises, and of the advantages and favours granted by the authorities to one trade union association to the detriment of others, together with the authorities’ refusal to sign a memorandum of understanding with trade union organizations after it had been negotiated.
2. 1288. According to the complainants, several factors demonstrate the difficulties faced by all trade union associations, with one exception, in freely carrying out their activities without obstruction or interference. The complainant alleges that the authorities effectively favour the Confederation of Trade Unions of Rwanda (CESTRAR) to the detriment of other representative organizations, by granting it favours such as the use, since 1985, of public buildings situated in Kigali city centre (Gasabo district, Kacyiru sector, plot No. 1713, close to social security, presidential and ministerial buildings), and by inviting it, as sole consultation partner among the trade unions, to meetings such as those dealing with the adoption of the Poverty Reduction Strategy Paper (PRSP) and seminars organized by the International Labour Office, including the subregional seminars on international labour standards and action against child labour organized in August 2007 in Burundi (to which the Ministry invited only a CESTRAR representative, Ms Olive Ninkubwimana. The complainants also cite numerous attempts on the part of the Government to designate unilaterally a representative of CESTRAR as the Workers’ delegate to the International Labour Conference. The complainants refer, in this connection, to the objection presented by the ITR to the Credentials Committee of the 96th Session of the International Labour Conference (June 2007) regarding the nomination of the Workers’ delegate.
3. 1289. The complainants further complain of delays in the procedure for registering CRISAT’s statutes, particularly with regard to their publication in the Official Journal, by which, under the law, the trade union organization would be accorded legal personality. After the statutes were deposited in September 2005 and a letter sent to the Minister of Public Service and Labour in March 2006 regarding the delay in registration, the Minister was content to justify this delay on the grounds of the delays entailed by reforms being made to public administration and the Labour Code. He also stated that CRISAT’s statutes would only be published once these reforms had been completed. Copies of exchanges of letters on this matter have been provided by the complainants, who are surprised to have received such a response from the Government and request that registration be undertaken simply in accordance with the law in force.
4. 1290. The complainants also state that a certain number of employers have created obstacles to the activities of trade union associations. As examples, they cite the following cases: the refusal by the enterprise Sulfo Rwanda to give COTRAF–RWANDA and COSYLI the opportunity to organize trade union meetings on working days while CESTRAR was authorized to do so; the enterprise Bralirwa’s authorization for COTRAF–RWANDA and COSYLI to hold meetings with workers only outside working hours; the refusal by the enterprises Kabuye Sugar, British American Tobacco, Rwandex and Rwanda Motor to authorize trade union meetings of COTRAF–RWANDA and COSYLI, whose requests went unanswered; the refusal by the enterprise Utexrwa to authorize COTRAF–RWANDA and COSYLI to hold meetings with a view to nominating candidates for election as staff representatives, while CESTRAR was authorized to do so, without any move by the Ministry for Public Service and Labour to intervene to censure such anti-union discrimination. Copies of correspondence concerning these events have been supplied by the complainants.
5. 1291. Lastly, according to the complainants, the Ministry of Public Service and Labour and CESTRAR have collaborated in refusing to sign an agreement of understanding dated 30 March 2007, although it had been drawn up and agreed with other trade union associations in the presence of representatives of the International Labour Office and the African Regional Organization of the International Trade Union Confederation (ITUC–Africa). A copy of the agreement, signed by COTRAF–RWANDA, ASC–UMURIMO, COSYLI and CRISAT, has been supplied by the complainants.

B. The Government’s reply

1. 1292. In a communication dated 19 May 2008, the Government states at the outset that the information given by the ITR does not correspond to reality, that the rights to freedom of association and expression are guaranteed by the Constitution, and that the ratification of ILO Conventions Nos 87 and 98 reflects the will of the Government to promote those rights.
2. 1293. The Government explains, by way of introduction, that there is a certain discrepancy between the number of members declared by trade unions and their actual number of members, and that this fact was mentioned in a report on the functioning of trade unions commissioned by the Ministry of Public Service and Labour and endorsed by all the organizations except CRISAT and ASC–UMURIMO. On the basis of the report, the Government states that “Rwandan trade unions operate with no real basis”. Legal loopholes allow certain confederations composed of phantom trade unions with no members at enterprises to request legal personality. The Government states that it is working on a new legal framework to eliminate such loopholes. This process in part explains the delay in registering CRISAT’s statutes, but the Government gives assurances that all steps have been taken to allow CRISAT to obtain legal personality.
3. 1294. With regard to the allegations of special favours granted by the authorities to CESTRAR, the Government states that all work-related employers’ and workers’ organizations participate in formulating policies and laws on labour and employment. This participation is carried out through dialogue structures such as the Economic and Social Council. Consultations are also under way with all partners to make the National Labour Council operational. The Government explains that according to the law, no trade union association may now be dependent on a political party, and CESTRAR, which has been independent since its statutes were amended in 1992, was therefore designated by civil society to sit on the Economic and Social Council.
4. 1295. With regard to the nomination of the Workers’ delegate to the International Labour Conference, the Government states that, as is the case with the nomination of the Employers’ delegate, the process involves consultations between the representative organizations held at the request of the ministry responsible for these appointments. The same procedure is followed for any meeting requiring the nomination of representatives of the social partners and involves, for the workers, consultation with CESTRAR, COTRAF–RWANDA and COSYLI. The Government recognizes that ASC–UMURIMO and CRISAT are not consulted, and justifies this on the grounds of internal conflicts within ASC–UMURIMO and by the fact that CRISAT has not yet been registered.
5. 1296. Concerning the allegations of difficulties encountered in the process of organizing elections at enterprises, the Government emphasizes that CESTRAR, COTRAF–RWANDA and COSYLI, together with the Rwanda Private Sector Federation representing employers, are closely involved in the election process, in particular through the creation of an election steering committee comprising all parties. The Government states that, as regards the allegations relating to difficulties encountered during elections at Utexrwa, COTRAF–RWANDA and COSYLI requested workers to abstain from voting so as not to give votes to CESTRAR, which was then left as the sole candidate.
6. 1297. The Government further states that, given the difficulties encountered by trade unions in reaching workers at certain enterprises, it has taken the initiative of drawing up a circular letter addressed to employers on the exercise of trade union rights at enterprises, which complements the relevant provisions of the Labour Code (No. 651/19.18/32/2006 of 27 November 2006).
7. 1298. With regard to cases of attempts to obstruct trade union activities at certain enterprises named by the complainant, the Government emphasizes that, as regards Sulfo Rwanda, the enterprise is entirely within its rights to authorize trade union meetings only on Saturday, which is also a working day for the enterprise in question. Furthermore, the Government states that it has not been informed of refusals by the other enterprises mentioned by the complainant to authorize the meetings requested by COTRAF–RWANDA and COSYLI. The Government states that, if necessary, it would have intervened to uphold the law.
8. 1299. Lastly, with regard to the agreement of 30 March 2007 negotiated between the Ministry of Public Service and Labour and the main trade union associations which the Government, together with CESTRAR, subsequently refused to sign, the Government explains that CESTRAR asked to consult its executive committee before signing, which was what then occurred. The Government expresses surprise at the statements of other trade union associations, which it considers to be contrary to the spirit of the agreement. A copy of the agreement signed by all the trade union associations, including CESTRAR, has been supplied by the Government.

C. The Committee’s conclusions

1. 1300. The Committee observes that, in the present case, the allegations made by the ITR relate to difficulties encountered by trade union associations in carrying out their activities at various enterprises, advantages granted by the authorities and favouritism displayed with regard to one trade union association to the detriment of other associations, and the authorities’ refusal to sign an agreement of understanding between trade union organizations and the Ministry of Public Service and Labour.
2. 1301. The Committee takes note of the allegations concerning the delay in registering the statutes of CRISAT, in particular the information that, at least six months after they were deposited with the authorities, they have not yet been published in the Official Journal. Under law, this failure to publish means that the trade union organization has no legal personality. The Committee notes that, according to information provided by the complainants, CRISAT’s statutes were deposited in September 2005; a communication sent by CRISAT to the Ministry of Public Service and Labour in February 2006 drew attention to the delay in registration and requested that the dossier be followed up; and a letter from the Secretary of State for Labour dated 3 March 2006 stated that the delay in examining the dossier was due to public administration reforms and the revision of the Labour Code. It also stated that CRISAT’s statutes would only be published once these reforms were complete, but that, in the meantime, the organization should carry out its activities regardless.
3. 1302. The Committee observes that the procedure for registering CRISAT’s statutes was still not completed more than six months after they had been deposited, and that two years elapsed without any change in the situation, until the present complaint was brought before the Committee. The Committee notes that, in its reply to CRISAT, the Government confines itself to stating that the dossier will be examined once the reforms under way are completed and that this situation should not prevent the trade union from pursuing its activities. Although the Committee further notes that CRISAT participated in negotiating the memorandum of understanding of 30 March 2007 and signed it, it nevertheless observes that, in its reply regarding this case, the Government uses the fact that CRISAT has not yet been registered to justify its non-participation in certain consultations, notably those held for the purpose of nominating the Workers’ delegate to the International Labour Conference. While it considers that the right to recognition through legal registration is an essential facet of the right to organize, since that is the first step that workers’ or employers’ organizations must take in order to be able to function efficiently and represent their members adequately, the Committee also recalls that a long registration procedure constitutes a serious obstacle to the establishment of organizations and amounts to a denial of the right of workers to establish organizations without previous authorization [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, paras 295 and 307].
4. 1303. Deploring the particularly long delay in the process of registering CRISAT’s statutes, which were deposited as long ago as September 2005, the Committee is surprised that the procedure for registering the statutes of a trade union organization, entered into in accordance with the instruments in force and resulting in legal personality for the organization, may be made conditional upon administrative reforms being completed. The Committee regrets that such a delay on the Government’s part may also lead to the organization in question being denied participation in certain consultation processes. Consequently, the Committee requests the Government to take all the necessary steps to register CRISAT’s statutes, which in law would accord the organization legal personality, as soon as possible and to keep it informed in this regard.
5. 1304. With regard to the allegations of special favours granted to CESTRAR by the authorities, the Committee notes that, according to the complainants, the matter concerns the use since 1985 of public buildings situated in the city centre, and CESTRAR’s participation as sole consultation partner in meetings such as those dealing with the adoption of the PRSP and seminars organized by the International Labour Office. The Committee notes that, in its reply, the Government confines itself to stating that all representative employers’ and workers’ organizations participate in formulating policies and laws on labour and employment through dialogue structures such as the Economic and Social Council. It further states that consultations are also under way with all partners to make the National Labour Council operational. The Government also refers to a report it commissioned on the functioning of the trade unions, stating that there is a certain discrepancy between the numbers of members declared by trade unions and the actual numbers. On the basis of this report, which was endorsed by all the organizations except CRISAT and ASC–UMURIMO, the Government states that “Rwandan trade unions operate with no real basis” and that legal loopholes allow certain confederations composed of phantom trade unions with no members at enterprises to request legal personality. The Committee takes note of the Government’s statement that the reforms under way are intended to produce a new legal framework to eliminate these loopholes.
6. 1305. The Committee draws the Government’s attention to the fact that, by favouring or according favourable treatment to a given organization as compared with others, a government may be able to influence the choice of workers as to the organization which they intend to join. A government which deliberately acts in this manner violates the principle laid down in Convention No. 87 that the public authorities shall refrain from any interference which would restrict the rights provided for in the Convention or impede their lawful exercise. In addition, more specifically, the fact that a government is able to offer the use of premises to a particular organization, or to evict a given organization from premises which it has been occupying in order to offer them to another organization, may, even if this is not intended, lead to the favourable or unfavourable treatment of a particular trade union as compared with others, and thereby constitute an act of discrimination [see Digest, op. cit., para. 345]. The Committee hopes that the Government will take due account of the principles recalled above.
7. 1306. With regard to the matter of the representativeness of trade unions, as raised by the Government in response to the complainant’s allegations concerning the exclusive participation of CESTRAR in national consultation meetings, the Committee recalls that, while it allows that certain preferential treatment may be granted to the most representative organizations, particularly priority in representation for the purposes of collective bargaining and consultation, the determination of the most representative organization must be based on objective, pre-established and precise criteria so as to avoid any possibility of bias or abuse. Therefore, 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 or of the right to organize their administration and activities. Consequently, the Committee requests the Government to indicate whether objective, pre-established and precise criteria exist to determine the representativeness of trade union organizations in Rwanda and to justify granting CESTRAR priority in representing trade union organizations in national meetings and forums. The Committee hopes that, once the representativeness of trade union organizations has been determined, in so far as the Government wishes to grant certain rights and advantages to those organizations recognized as the most representative, it will do so according to the principles recalled above and that these organizations will be treated equally. The Committee also hopes that rights and advantages will only be granted to the most representative organizations where this distinction does 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 or of the right to organize their administration and activities. Moreover, the Committee requests the Government to keep it informed with regard to the legal reforms that it states are to be undertaken to amend the law with regard to the registration and representation of trade union organizations.
8. 1307. Concerning the allegations relating to the nomination of the Workers’ delegate to the International Labour Conference from among the ranks of CESTRAR, the Committee notes that the ITR presented an objection to the Credentials Committee of the 96th Session of the International Labour Conference (June 2007). The Committee underlines in this regard that the Credentials Committee noted the lack of response from the Government, but considered that the objection did not contain sufficient elements to allow it to examine the case [see Second report of the Credentials Committee, 96th Session of the International Labour Conference, Geneva, 2007]. The Committee also takes note of the Government’s reply, according to which, as is the case for the nomination of the Employers’ delegate, nomination of the Workers’ delegate involves consultations between representative organizations, namely CESTRAR, COTRAF–RWANDA and COSYLI, at the request of the ministry responsible for these appointments. While recalling that the matter of representation at the Conference falls within the purview of the Conference’s Credentials Committee, the Committee reaffirms the special importance it attaches to the right of representatives of workers’ organizations, and to the right of employers’ organizations, to attend and participate in meetings of the ILO [see Digest, op. cit., para. 766]. The Committee considers that determining the most representative organizations in Rwanda according to objective, pre-established and precise criteria could contribute to solving the difficulties that have arisen.
9. 1308. With regard to the allegations that the Ministry of Public Service and Labour and CESTRAR colluded in refusing to sign a memorandum of understanding dated 30 March 2007 and drawn up with other trade union associations in the presence of representatives of the International Labour Office and ITUC–Africa, the Committee notes that it has received from the complainant a copy of the said agreement signed by COTRAF–RWANDA, ASC–UMURIMO, COSYLI and CRISAT. The Committee further notes that the copy of the agreement sent to it by the Government contains, in addition to the other signatures, that of CESTRAR. The Committee likewise notes the Government’s explanations that CESTRAR asked to consult its executive committee before adding its signature. The Committee considers, however, that, despite the Government’s statement that it initiated the agreement in question, it gives no indication of the current status of the agreement. The Committee invites the Government to indicate whether the agreement of 30 March 2007 between Rwanda’s trade union organizations and the Ministry of Public Service and Labour has entered into force and whether any specific steps have been taken to give effect to its provisions.
10. 1309. With regard to the complainants’ allegations that numerous employers have created obstacles to the activities of trade union associations, the Committee notes that the allegations concern the refusal by the enterprise Sulfo Rwanda to allow COTRAF–RWANDA and COSYLI the opportunity to organize trade union meetings on working days while CESTRAR was authorized to do so; the enterprise Bralirwa’s authorization for COTRAF–RWANDA and COSYLI to hold meetings with workers only outside working hours; the refusal by the enterprises Kabuye Sugar, British American Tobacco, Rwandex and Rwanda Motor to authorize trade union meetings of COTRAF–RWANDA and COSYLI; and the refusal by the enterprise Utexrwa to authorize COTRAF–RWANDA and COSYLI to hold meetings with a view to nominating candidates for election as staff representatives, while CESTRAR was authorized to do so. Furthermore, the complainants state that the Ministry of Public Service and Labour has refrained from imposing any sanctions in respect of such acts of anti-union discrimination.
11. 1310. The Committee notes that, in its reply, the Government emphasizes, as regards Sulfo Rwanda, that the enterprise is entirely within its rights to authorize trade union meetings only on Saturday, which is also a working day for the enterprise in question, and, with regard to the elections at Utexrwa, that COTRAF–RWANDA and COSYLI did not present any candidates and requested workers to abstain from voting so as not to give votes to CESTRAR. The Committee also takes note of the statement that CESTRAR, COTRAF–RWANDA and COSYLI, together with the Rwanda Private Sector Federation representing employers, are closely involved in the process of electing representatives at enterprise level, in particular through the creation of a steering committee. Lastly, the Committee takes note of the Government’s statement that it has taken the initiative of sending a circular letter to employers explaining the exercise of trade union rights at enterprises (No. 651/19.18/32/2006 of 27 November 2006), together with the statement that it has not been informed of refusals by the other enterprises mentioned by the complainants to authorize the meetings requested by COTRAF–RWANDA and COSYLI.
12. 1311. The Committee wishes first to remind the Government that the Workers’ Representatives Convention, 1971 (No. 135), which it has ratified, calls on member States to supply such facilities in the undertaking as may be appropriate in order to enable workers’ representatives to carry out their functions promptly and efficiently, and in such a manner as not to impair the efficient operation of the undertaking concerned. The Committee also recalls the principle that the Government should guarantee the access of trade union representatives to workplaces, with due respect for the rights of property and management, so that trade unions can communicate with workers in order to apprise them of the potential advantages of unionization. Lastly, for the right to organize to be meaningful, the relevant workers’ organizations should be able to further and defend the interests of their members, by enjoying such facilities as may be necessary for the proper exercise of their functions as workers’ representatives, including access to the workplace of trade union members [see Digest, op. cit., paras 1098, 1103 and 1106]. The Committee also considers that, if necessary, workers’ organizations and employers could reach agreements so that access to workplaces, during and outside working hours, can be granted to workers’ organizations without impairing the functioning of the establishment or service. In conclusion, the Committee requests the Government to take all necessary measures to guarantee trade union organizations, without distinction, the benefit of all the necessary facilities for the free exercise of their functions as workers’ representatives, in particular access to workplaces, in accordance with the above principles, and to take action regarding any failure to respect this principle. The Government is also requested to take all the necessary steps to ensure full respect for freedom of association, including the right of workers to elect their representatives in full freedom, without interference or intervention by employers. Lastly, the Government is requested to provide a copy of circular letter No. 651/19.18/32/2006 of 27 November 2006.

The Committee's recommendations

1. 1312. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to take all the necessary steps to register CRISAT’s statutes, which in law would accord the organization legal personality, as soon as possible, and to keep it informed in this regard.
   • (b) The Committee trusts that the Government will take due account in future of the principles concerning favours and advantages granted to particular organizations.
   • (c) The Committee requests the Government to indicate whether objective, pre-established and precise criteria exist to determine the representativeness of trade union organizations in Rwanda and to justify granting CESTRAR priority in representing trade union organizations in national meetings and forums. Moreover, the Committee requests the Government to keep it informed with regard to the legal reforms that it states are to be undertaken to amend the law with regard to registration and representation of trade union organizations.
   • (d) The Committee invites the Government to indicate whether the agreement of 30 March 2007 between Rwanda’s trade union organizations and the Ministry of Public Service and Labour has entered into force and whether any specific steps have been taken to give effect to its provisions.
   • (e) The Committee requests the Government to take all necessary measures to guarantee trade union organizations, without distinction, the benefit of all the necessary facilities for the free exercise of their functions as workers’ representatives, in particular access to workplaces, and to take action regarding any failure to respect this principle. The Government is also requested to take all the necessary steps to ensure full respect for freedom of association, including the right of workers to elect their representatives in full freedom, without interference or intervention by employers.
   • (f) The Government is requested to provide a copy of circular letter No. 651/19.18/32/2006 of 27 November 2006.