Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Democratic Republic of the Congo (Ratification: 1969)

The Committee notes the comments of the International Trade Union Confederation (ITUC) of 4 August 2011 which report, among other matters, the dismissal of many trade unionists and the refusal of employers to give effect to court orders for their reinstatement and rehabilitation. The Committee requests the Government to provide without delay its observations thereon.

In its previous comments, the Committee noted with interest the Government’s indication that it intended to give effect to the Committee’s recommendation to conduct an independent investigation in order to clarify the questions raised by the ITUC and the Trade Union Confederation of the Congo (CSC) in 2007 concerning: (1) acts of discrimination and anti-union interference in private enterprises (including threats of dismissal against union members, despite the fact that section 234 of the Labour Code prohibits acts of anti-union discrimination); (2) the existence of many unions established and financed by employers; and (3) the failure to comply with collective agreements. The Committee requested the Government to indicate any developments and the conclusions of the independent investigation. The Committee notes the Government’s indication in its report that it has not identified acts of discrimination in private enterprises, nor the existence of unions established and financed by employers or failure to comply with collective agreements, as indicated by the ITUC and the CSC, and that it is for these unions to provide proof of their allegations. The Committee understands from the Government’s reply that the investigation that it conducted did not include the participation of trade unions. The Committee recalls that complaints against acts of anti-union discrimination should normally be examined by national machinery which, in addition to being speedy, should not only be impartial, but also be seen to be such by the parties concerned, who should participate in the procedure in an appropriate and constructive manner. Under these conditions, the Committee requests the Government to conduct a new independent investigation and to ensure that all the parties can be heard.

Article 2 of the Convention. Protection against acts of interference. The Committee noted previously that, according to the Government, the National Labour Council has not yet adopted the draft Order prohibiting acts of interference. The Committee recalled that, although section 235 of the new Labour Code prohibits all acts of interference by organizations of employers and workers in each other’s affairs, section 236 provides that acts of interference must be defined more precisely. The Committee noted the Government’s reply to the effect that the National Labour Council has not yet taken a decision on the draft Order prohibiting acts of interference. To that end, the Committee noted that the Government undertook to provide a copy of the Order once it had been adopted. The Committee notes that, according to the Government’s report, the Order has still not been adopted. Under these conditions, the Committee hopes that the Order referred to above will be adopted in the very near future and requests the Government to indicate any developments in this regard.

Article 6. Collective bargaining in the public sector. With regard to practice, the CSC indicated previously the existence of measures allowing the establishment of mechanisms for the promotion of collective bargaining in the public sector. The Committee noted the information provided by the Government concerning the right of public employees not engaged in the administration of the State to engage in collective bargaining, and particularly: (1) the agreement of 11 September 1999 on basic wages concluded between the Government and the unions of the public administration at a meeting of the joint committee; (2) the “social contract for innovation” of 12 February 2004 concluded between the Government and the unions of the public administration; and (3) the agreement concluded between the Government and the unions of the public administration following a strike by unions in the education sector in 2005. The Committee concluded that, in practice, there were wage negotiations and agreements in the public sector.

With regard to the legislative texts respecting the right to collective bargaining in the public sector, the Committee observed previously that the Government had sent the text of Ministerial Order No. 12/CAB.MIN/ TPS/ar/NK/054 of 12 October 2004 establishing the procedures for the representation and recourse to elections of workers in enterprises or establishments of all types. The Committee also noted the will expressed by the Government to regulate the salaries of public servants set by negotiated agreements in the context of the imminent reform of the public administration. In this regard, the Committee noted the comments by the ITUC that the staff of decentralized entities (towns, territories and sectors), who comprise a subcategory of public servants, do not enjoy the right to bargain. The Committee also noted that section 1 of the Labour Code explicitly excludes from the Code career members of the State public services who are governed by the general conditions of service (Act No. 81-003 of 17 July 1981 issuing the conditions of service of career members of State public services and explicitly providing for the establishment of institutions ensuring the representation of the personnel) and career employees and officials of State public services who are governed by specific conditions of service.

The Committee notes the Government’s indication that the categories of workers envisaged in Articles 4 and 6 of the Convention are governed by the Labour Code and that collective bargaining is possible through the joint committee. The Committee however observes that the text of section 1 of the Labour Code appears to exclude from its scope of application broad categories of public employees and officials. The Committee therefore reiterates its request to the Government to take steps to ensure that the legislation clearly guarantees the right to collective bargaining of all public servants not engaged in the administration of the State, as provided in Articles 4 and 6 of the Convention, and once again requests the Government to indicate any progress achieved in the reform of the public administration.