Observation (CEACR) - adopted 2000, published 89th ILC session (2001)

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

The Committee notes the information contained in the Government’s report, the case law communicated and Decree No. 99-436 of 13 September 1999 defining the different forms of trade union organizations and the criteria for representativeness.

1.  Article 2 of the Convention. The right to establish trade unions without previous authorization.  With reference to its earlier comments on the need to amend the 1998 Labour Code to remove the obligation to deposit trade union statutes with the competent authorities, including the Ministry of the Interior, in order to obtain legal recognition, under penalty of a fine, the Committee notes that according to the Government the deposition of statutes is not a prior condition to the establishment of trade unions but that it constitutes a condition of public announcement and that the fine which may be imposed in cases of non-respect of this provision is not severe, since its amount is from FCFA35 to 350.

The Committee notes that the requirement to deposit the statutes with the Ministry of the Interior is more than a simple condition of public announcement and that the fine imposable can be FCFA700 in recurrent cases, which could constitute a severe obstacle to the creation of a trade union. In this connection, the Committee recalls that under the terms of Article 2 of the Convention workers and employers shall have the right to establish organizations of their own choosing without previous authorization. The Committee therefore again invites the Government to take the measures necessary to remove the requirement to deposit the statutes with the Ministry of the Interior on penalty of financial sanctions and thus bring the legislation into conformity with the Convention. It requests the Government to indicate in its next report the measures effectively taken in this regard.

2.  Article 2. The right of workers, without distinction whatsoever, to establish trade unions.  The Committee notes that section 2 of the Labour Code excludes seafarers from its application and stipulates that they are covered by the 1968 Merchant Marine Code. Noting that the Merchant Marine Code (Ordinance No. 38 PR/MTPTPT of June 1968) does not grant seafarers either the right to organize or the right to strike, which in an intrinsic corollary of trade union rights, and provides for sentences of imprisonment for breaches of labour discipline (sections 209, 211 and 215), the Committee again requests the Government to ensure that seafarers benefit from the guarantees of the Convention and to keep it informed of measures taken in this respect.

3.  The Committee recalls the need to amend section 8 of Ordinance No. 69‑14 PR/MFPTRA of June 1969 concerning the exercise of the right to strike which allows prohibition of strikes in the private and public service where interruption of the service would harm the economy and the higher interests of the nation. It notes with interest that, under the terms of sections 1, 2 and 13 of the Bill concerning the exercise of the right to strike, civil servants, like other workers, have the right to strike and bargain collectively. The Committee notes that the Bill in question constitutes a step towards the application of the Convention with regard to the minimum service to be maintained in the event that a strike in strategic sectors would endanger the health or the safety of the whole of part of the population and provides for the repeal of Ordinance No. 69-14 PR/MFPTRA. The Committee notes that examination of this draft has been placed on the agenda of the May/June 2000 session of the National Assembly. It expresses the firm hope that the Bill will be rapidly adopted and promulgated and requests the Government to indicate in its next report information regarding the progress made in this regard.

4.  The Committee notes nonetheless, that under the terms of section 7 of the Bill concerning the exercise of the right to strike, workers’ organizations are obliged to give the competent authorities advance notice before resorting to strike action. Under section 8 of the draft, the advance notice must indicate, inter alia, the proposed length of the strike. The Committee considers that requiring the employees and their organizations to specify the length of a strike amounts to restricting the right of workers’ organizations to organize their administration and activities and to formulate their programmes. The right to strike is, by definition, a means of pressure available to workers and their organizations for the promotion and defence of their social and economic interests and achieve satisfaction in their claims. The Committee therefore requests the Government to eliminate the obligation to indicate in the notice the length of the strike referred to in the notice, and asks it to include details in its next report on the measures effectively taken in this connection.