Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

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

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.