Report in which the committee requests to be kept informed of development - Report No 307, June 1997

Case No 1905 (Democratic Republic of the Congo) - Complaint date: 05-OCT-96 - Closed

Allegations: de jure and de facto government interference in the establishment and functioning of public servants' trade unions

1. 123. In two communications dated 5 October 1996, the National Union of Medical Practitioners, Health Service Management and Personnel (SYNCASS), an affiliate of the Democratic Confederation of Labour (CDT), submitted a complaint of violations of trade union rights against the Government. It subsequently presented further allegations and supporting documents in a letter of 4 December 1996. The Public Service Trades Union Council (COSSEP), also a CDT affiliate, delivered its allegations on the same matters in a communication dated 24 January 1997.
2. 124. The Government provided certain comments and observations regarding these complaints in a letter of 5 March 1997.
3. 125. The Democratic Republic of the Congo has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87); it has, however, ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainants' allegations

1. 126. In their communications of 5 October and 24 January 1997, SYNCASS and COSSEP apprise the Committee of allegations of de jure and de facto violations of freedom of association.
   • Allegations of a legislative nature
2. 127. SYNCASS considers that Decree No. CAB.MIN/FP/0174/96 of 13 September 1996, which provisionally regulates public administration trade union activities and amends and supplements Decree No. CAB.MIN/FP/105/94 of 13 January 1994 on the same matters, runs counter to the provisions of international labour Conventions Nos. 87, 98 and 151 regarding freedom of association and violates trade union rights.
3. 128. More specifically, in the memorandum attached to its complaint, SYNCASS explains that the Decree, in article 3, restricts the freedom of workers employed by the State to join the trade unions of their choosing inasmuch as it limits membership of organizations to those approved by the Minister of the Public Service and stipulates that state employees may only belong to trade union organizations of "state officials and employees". This article endows the Minister of the Public Service with discretionary powers regarding the registration of trade unions and the selection of organizations entitled to conduct their activities in the public administration. These powers are extensive, given that the Decree makes no mention of any independent arbitration body competent to examine any injury caused to a trade union by the Minister's decisions.
4. 129. The Decree hinders the registration of trade unions by the inclusion of several conditions in article 6.
5. 130. Article 11 of the Decree reinforces the Minister's powers as it recalls that the rights and obligations of trade unionists are still determined by the Public Service Regulations. SYNCASS maintains that, whenever employees act as trade unionists, they clearly do so in accordance with trade union rules. However, articles 4 and 5 of the Decree stipulate that such rules must have the Minister's prior approval.
6. 131. Article 12, subparagraphs (b) and (c), of the Decree constitutes both an unmistakeable restriction on trade union members' freedom to elect their representatives without hindrance as well as interference on the legislator's part in the drafting of trade union rules. Subparagraph (b) opens the door to dismissals and disciplinary transfers of union representatives for the purpose of preventing them from exercising their functions and subparagraph (c) targets trade union leaders holding parliamentary office, to whom the Minister of the Public Service had already repeatedly denied the right to represent their organizations, on the pretext of incompatibility between trade union and parliamentary mandates.
7. 132. Further reinforcement of the Minister's powers over trade unions is found in article 13 of the Decree, given that it confers to unions the task of ensuring application of the Public Service Regulations, of acting as the administrative authorities' mouthpiece in relations with workers as well as of policing the implementation of those authorities' decisions. These tasks divert trade unions from the goal of defending their members.
8. 133. According to SYNCASS, even if the State has not yet ratified Conventions Nos. 87 and 151, the Government is bound by a protocol signed by it and the public sector trade unions on 17 September 1994. That protocol clearly states the Government's duty to submit the ratification instrument for these Conventions to Parliament. This assertion is corroborated by the records of the Council of Ministers of 1 March 1996.
9. 134. Furthermore, SYNCASS explains that the Decree is unconstitutional, unlawful and, hence, null and void, just as is the Decree dated 31 January 1994, which it amends and supplements. Upon publication, that initial text was declared to be without effect and, consequently, did not exist de jure on 13 September 1996, the date of its revision; this was because it had only been published, and thereby had only become applicable to third parties, on 22 April 1994, i.e. after the promulgation on 9 April 1994 of the Constitutional Transition Act presently in force. That constitutional Act, in article 59, states that it is law, and not ministerial decrees, that establishes the fundamental principles applicable to trade union pluralism.
   • Allegations of a factual nature
10. 135. SYNCASS, in its communication of 5 October 1996, denounces the Government's interference in the appointment of COSSEP representatives to the joint committee set up by the Government and trade unions in June 1996. SYNCASS explains that, by letter of 30 May 1996, COSSEP had appointed eight delegates, two per group of affiliated unions, to represent eight public service trade unions, i.e. the Public Service Trades Union Council (COSSEP itself), the National Board of State Officials and Personnel (DINAFET/SYNAFET), the Teachers' Union of Zaire (SYEZA), the National Union of Medical Practitioners, Health Service Management and Personnel (SYNCASS) and four other trade unions.
11. 136. The two designate members from SYNCASS were Messrs. Mulenda Lukwante and Ndjate Hiondo. According to the complainant, however, the Government subsequently took an arbitrary decision to appoint Mr. Omalundula Otshinga, Deputy General Secretary of SYNCASS.
12. 137. SYNCASS strongly regrets this appointment to the Government/trade union joint committee, given that this body has been transformed into a staffing supervisory committee for state officials and employees and that the trade unions consider its work to be of major importance. It is their wish that the National Executive Secretary of SYNCASS, who had been designated in the appropriate manner by the union's competent body, be permitted to sit on the committee.
13. 138. Moreover, in its letter of 4 December 1996, SYNCASS denounces the fact that the chief medical officer of the Ngaliema clinic, Kinshasa, refused to authorize the trade union to hold its general assembly on 23 August 1996. The documents attached to the complaint record that the chief medical officer, and chairman of that clinic's managerial board, gave the following reply to SOLSIZA and DINAFET/SYNAFET union representatives: "We regret to inform you that this is not the time to hold meetings of this kind which impair staff motivation." He went on to conclude that: "It is not the most opportune moment to hold staff assemblies which must be postponed until a later date." Whereas it recognizes that the ban pronounced on 23 August 1996 no longer applies, SYNCASS wishes that the Committee might reiterate its earlier recommendations with a view to ensuring that such practices do not become the general rule in the hospitals and clinics of the State.
14. 139. The General Secretary of SYNCASS, Mr. Kibiswa Kwabene, who, as a member of the Parliament of transition, sits on the Supreme Council of the Republic, strongly protests at the fact that the Minister of the Public Service refuses to have dealings with him on account of his status as Parliamentarian; according to SYNCASS rules, however, this function is not incompatible with his trade union office.
15. 140. Finally, in a subsequent letter dated 24 January 1997, COSSEP, to which several public service trade unions are affiliated, also requests to be able to represent its affiliates' members in collective bargaining and, in particular, on the committee responsible for supervising staffing in the public service. Its complaint is accompanied by several attachments which record the Government's refusal to take account of the COSSEP delegates' list on account of the fact that certain trade union representatives appointed by the membership are parliamentarians. It notes that bargaining takes place with trade unions which, it maintains, were set up at the initiative of the Minister of the Public Service or have a split leadership.

B. The Government's reply

1. 141. In its reply dated 6 March 1997, the previous Government confirmed, as a Member of the International Labour Organization, its commitment to respect the obligations ensuing from the ILO Constitution. It emphasized that the Government of transition had pledged, as early as 24 April 1990, to apply the principles of trade union pluralism enshrined in the Labour Code of 9 August 1967 and it indicated that article 10 of the Constitutional Transition Act guaranteed freedom of association with respect for law, public order and moral standards.
2. 142. In respect of the breach of trade union rights by Decree No. CAB/MIN/FP/0174/96, issued by the Minister of the Public Service on 13 September 1996 and which provisionally regulated trade union activities in the public administration, the Government accepted that the text contained certain articles which violated the provisions of both international and national instruments regarding the establishment and functioning of workers' occupational organizations.
3. 143. The Government gave assurances that the Minister of Labour and Social Welfare would shortly be establishing an interministerial committee with a view to bringing the provisions of the aforementioned Decree into line with existing international and national legal instruments.
4. 144. With regard to interference on the part of the Minister of the Public Service in the appointment of SYNCASS representatives to the joint committee set up between the Government and public service unions, the Government again recognized that the Minister of the Public Service had interfered, inadvertently as he had explained, in the appointment of SYNCASS delegates and it admitted that this constituted a flagrant violation of freedom of association.
5. 145. The Government gave assurances that, with a view to avoiding the repetition of such violations, the Minister of Labour would be contacting all of the departments which were the subject of these complaints and would invite them to reflect upon trade union freedoms and rights.
6. 146. Finally, in respect of ratification prospects for international labour Conventions on freedom of association, the Government stated that Bills to enable ratification both of Convention No. 87 and also of Conventions Nos. 135, 141 and 151 had received government approval as early as 1996 and that they were merely awaiting adoption by the Parliament of transition.

C. The Committee's conclusions

1. 147. The Committee notes the change of government that has taken place in this country. It recalls that the new Government should take all necessary steps to remedy any continuing effects which the events on which a complaint is based may have had since its accession to power, even though those events took place under its predecessor (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 18). The Committee therefore expresses the hope that the new Government will take all the necessary measures to implement the recommendations that it is formulating in this case.
2. 148. The Committee notes that the allegations in this case relate to instances of de jure and de facto government interference in the establishment and functioning of occupational organizations of state officials and employees.
   • Allegations of a legislative nature
3. 149. According to the complainants, the Decree of 13 September 1996, which amends and supplements that of 13 January 1994 and provisionally regulates trade union activities in the public administration, endows the Minister of the Public Service with discretionary powers regarding the registration of trade union organizations and permits him to interfere in their functioning. The Government, for its part, accepts that certain articles in the Decree which is the subject of the complaint violate the provisions both of national and international texts and gives assurances that the Minister of Labour will shortly be establishing an interministerial committee with a view to bringing the provisions of the aforementioned Decree into line with existing international and national legal instruments.
4. 150. The Committee takes note of this information. Accordingly, it requests the Government to repeal without delay all provisions in national legislation, which run counter to the right of workers of any category and, in this instance, of state officials and employees to establish, without prior approval, and join the organizations of their choosing. It also requests the Government to repeal the provisions hindering state employees' organizations in the exercise of their right to draw up their administrative rules and regulations, freely to elect their representatives, to manage their business and activities as well as to determine their action programme without interference from the public authorities.
   • Trade union monopoly
5. 151. Whereas it notes that the preamble of the Decree dated 13 January 1994 makes reference to trade union pluralism, as proclaimed on 24 April 1990, and that the Decree of 13 September 1996, which revised that of 1994 also mentions, in article 1, that it is designed to regulate the conduct of trade union activities in the public administration pending the publication of trade union regulations in conformity with trade union pluralism, the Committee requests the Government to repeal without delay article 56 of the Public Service Career Staff Regulations Act, 1981, which still obliges public servants to join a trade union organization mentioned by name in the Act, i.e. the National Union of Workers of Zaire (UNTZA), as well as article 49 of the said regulations, which calls upon them to show unfailing commitment to the ideals of the single party.
   • The role of trade unions
6. 152. With regard to article 13 of the Decree dated 13 September 1996, which, according to the complainants, reinforces the hold which the Minister of the Public Service has over public servants' trade unions inasmuch as it gives them the task of ensuring the implementation of the Public Service Regulations, of acting as the administrative authorities' mouthpiece in relations with workers and of policing the application of the authorities' decisions, the Committee recalls the importance for a workers' organization to be an organization designed to promote and defend the interests of its members, in conformity with Article 10 of Convention No. 87. In the Committee's opinion, this implies that organizations and, in this instance, public servants' organizations must be entirely independent of employers and, hence, of the public authorities. The Committee requests the Government to repeal article 13 of the Decree of 13 September 1996 in order to ensure respect for this principle.
   • The establishment of trade unions
7. 153. With regard to article 3 of the Decree of 13 September 1996, which obliges public servants' trade union organizations to be registered by the Minister of the Public Service, the Committee recalls the important principle that workers are entitled, without prior authorization, to establish the organizations of their choosing. In the Committee's opinion, ministerial registration does, in this instance, constitute prior authorization, inasmuch as the Decree, in article 6, imposes conditions reaching beyond the formalities designed to ensure the publicity necessary for the organization's smooth running and, moreover, article 4 states that the organization must obtain the Minister's approval and supply a copy of its rules to that end. Consequently, the Committee requests the Government to amend the provisions in question with a view to ensuring that trade union registration is not equivalent to prior authorization.
   • The election of trade union representatives
8. 154. Finally, in respect of the Decree's article 12 which stipulates that a trade union leader's, or trade union delegate's, term of office expires if he/she leaves or loses his/her employment (subparagraph (b)) or if he/she takes up political or public office in a state/public institution or body (subparagraph (c)), the Committee recalls the principle that workers' organizations are entitled freely to elect their representatives and that the public authorities must refrain from any intervention likely to restrict that right. The Committee has repeatedly pointed out that, if national legislation stipulates that all trade union leaders must belong to the occupation in which the organization is active, the application of that principle is likely to be impaired. In such instances, the dismissal or forced leave of absence of a worker who is a trade union leader, including, as in the present case, a public servant elected to Parliament, may, given that he/she thereby foregoes his/her status as a trade union leader, impair the organization's freedom of action as well as its right freely to elect its representatives and may even be conducive to employer interference. The Committee generally considers that the regulation of procedures and methods for the election of trade union officials is primarily to be governed by the trade unions' rules themselves (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 354). Consequently, the Committee requests the Government to repeal the above-mentioned restrictions upon the election of trade union leaders. In the light of these principles, the Committee urges the Government to ensure that trade union representatives, referred to in the complaint, who were also Members of Parliament, are able to carry out freely the duties as required by their trade union functions.
9. 155. Noting that, according to the information supplied by the Government, (a) the Minister of Labour will shortly be establishing an interministerial committee with a view to bringing the provisions of the 1996 Decree into line with existing national and international legal instruments and (b) the ratification of Conventions Nos. 87 and 151 had already been approved by the Government in 1996 and that they are now awaiting adoption by the Parliament of transition, the Committee welcomes the Government's spirit of openness and trusts that the Government will, without delay, take all necessary measures to amend its legislation and bring it into conformity with the principles of freedom of association. It requests the Government to keep it informed of progress in this regard.
   • Allegations of a factual nature
10. 156. The Committee observes that the Government recognizes that the interference by the Public Service Ministry in the appointment of SYNCASS representatives to the joint committee set up between the Government and state employees' trade unions was in flagrant violation of freedom of association and that, with a view to avoiding any repetition of such violations, the Minister of Labour will be contacting all of the departments which are the subject of these complaints. The Committee trusts that the official designations of SYNCASS delegates by the Public Service Ministry will be immediately annulled and that only delegates appointed by the public service trade unions' competent bodies in accordance with the appropriate procedures will sit on the joint committees set up to examine conditions of employment and supervise staffing in the public service.
11. 157. Finally, in respect of the action to hinder the holding of a trade union's general assembly in a Kinshasa clinic, the Committee again stresses the importance it attaches to the fundamental right of workers to hold union meetings unhindered. It therefore requests the Government to guarantee respect for the exercise of this right by workers, including in health services, possibly outside working hours or, with the employer's consent, during working hours.

The Committee's recommendations

1. 158. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) Observing the Government's statement that the Minister of Labour will shortly be establishing an interministerial committee with a view to bringing public service trade union legislation into line with national and international legal instruments, the Committee urgently requests the Government to repeal, without delay, all provisions in national legislation, which restrict the right of state officials and employees to establish, without prior authorization, the organizations of their choosing as well as the right of state employees' organizations to draw up their rules and administrative regulations, freely to elect their representatives, to manage their business and to determine their action programme without interference from the public authorities. In particular, it requests it to amend articles 49 and 56 of the Public Service Career Staff Regulations Act as well as certain provisions including articles 3, 4, 6, 12 and 13 of the 1996 Decree provisionally regulating trade union activities in the public administration. It requests the Government to keep it informed of progress in this regard.
   • (b) The Committee requests the Government to annul all official designations of public service union delegates, made by the Minister of the Public Service, and to ensure that only delegates appointed by the public service trade unions' competent bodies in accordance with the appropriate procedures sit on the joint committees set up to examine the conditions of employment and supervise staffing in the public service. It requests it to keep it informed in this regard.
   • (c) The Committee requests the Government to ensure that trade union representatives, referred to in the complaint, who were also Members of Parliament, are able to carry out freely their trade union functions.
   • (d) The Committee requests the Government to guarantee respect for the right of workers to hold union meetings unhindered, including in the health services.
   • (e) The Committee expresses the hope that the new Government will take all the necessary measures to implement the above-mentioned recommendations.

Annex I

1. Provisions of legislation and regulations relevant to the complaint
2. Public Service Career Staff Regulations, 1981
3. Rights, duties and incompatibilities
4. Article 49
5. (...)
6. The employee shall show unfailing commitment to party ideals ...
7. Article 56 The employee enjoys the right to trade union membership and is
8. officially affiliated to the National Union of Workers of Zaire (UNTZA).
9. Administrative regulations regarding employees' union status will be published
10. for the purposes of determining the nature and methods of union intervention
11. in the public service, establishing bodies guaranteeing staff representation
12. at national and regional levels, laying down the membership of such bodies,
13. their terms of reference and the procedures they shall observe.
14. Decree issued by the Minister of the Public Service No. CAB.MIN/FP/0174/96, 13
15. September 1996, amending and supplementing Decree No. CAB.MIN/FP/105/94, 13
16. January 1994, provisionally regulating trade union activities in the public
17. administration
18. Article 1
19. This Decree regulates the conduct of trade union activities in the public
20. administration, pending the publication of trade union regulations in
21. conformity with trade union pluralism.
22. This Decree is applicable to all employees governed by the Public Service
23. Career Staff Regulations as laid down in Act No. 81-003, 17 July 1981.
24. Article 2
25. The employees governed by this Decree are free to establish, join, become
26. affiliated to, or withdraw from, a trade union organization of their choosing.
27. Article 3
28. State officials' and employees' trade union organizations registered by the
29. Minister of the Public Service are entitled to conduct trade union activities
30. in the public administration. The Minister of the Public Service may grant the
31. same entitlement to other inter-occupational trade union organizations
32. registered with the Minister of Labour and Social Welfare and defending the
33. occupational interests of all or part of public administration staff, in
34. keeping with the sector of activity covered by these organizations.
35. Article 4
36. A trade union's registration application shall mention the complete identity
37. of the members responsible for its administration and management. The
38. application shall be signed by each one of them. Four copies of the applicant
39. trade union's rules and a submission from each member of the trade union's
40. steering committee shall be attached to the application.
41. The trade union organizations mentioned in article 3, subparagraph 3, above
42. shall notify themselves to the Minister of the Public Service by the
43. submission of an application for registration, which shall include a copy of
44. their rules and by-laws as well as the list of their officials.
45. Article 5
46. The trade union's rules shall indicate, inter alia:
47. - the trade union's name and central office;
48. - the trade union's purpose, i.e. the defence and promotion of its members'
49. occupational interests;
50. - membership, withdrawal and expulsion procedures;
51. - procedures for appointment, powers and terms of office of members
52. responsible for the trade union's administration and management;
53. - the purposes of the general assembly;
54. - sanctions applicable in the event of a breach of the rules;
55. - procedures regarding amendments to the rules and the trade union's
56. dissolution;
57. - the frequency of membership fee payments and collection methods;
58. - auditing procedures and powers delegated to members to enable them to
59. supervise the management of trade union property and assets.
60. Article 6
61. The submission in respect of each member responsible for a trade union's
62. administration and management shall contain the following:
63. - a birth certificate;
64. - a certificate of nationality;
65. - a certificate of good character;
66. - a certificate of satisfactory health;
67. - certificates of education;
68. - a copy of the member's police record;
69. - the list of members (a minimum of 200).
70. Article 7
71. Trade union registration is approved by order of the Minister of the Public
72. Service.
73. Article 8
74. Within five days of the decision to register by the Ministry of the Public
75. Service, the trade union shall forward a copy of its rules to the Public
76. Prosecutor of the High Court, within the jurisdiction of which the trade union
77. has its central office.
78. Article 9
79. A six-month period of transition in trade union matters shall commence upon
80. the publication of this Decree.
81. The period of trade union transition shall be devoted to:
82. - the further registration of state officials' and employees' trade unions;
83. - the further establishment of trade unions;
84. - the organization of elections to trade union office and joint bodies.
85. Article 10
86. An electoral code and time-frame shall be drawn up by a committee composed of
87. trade unionists and officials of the Ministry of the Public Service, who shall
88. be assisted by Ministry of Labour and Social Welfare experts.
89. Article 11
90. Delegates shall be appointed to a renewable three-year term of office.
91. During his/her term of office, the delegate shall be granted immunity in
92. respect of all acts performed in his/her trade union capacity.
93. The delegate shall undergo no harassment or injury, nor shall he/she enjoy
94. special advantages on account of his/her trade union office. The rights and
95. obligations established in the Public Service Career Staff Regulations remain
96. applicable to such delegates.
97. Article 12
98. The trade union manager or delegate is divested of his/her functions:
99. (a) if he/she ceases to meet the eligibility requirements;
100. (b) if he/she leaves or loses his/her employment;
101. (c) if he/she takes up political or public office in a state/public
102. institution or body.
103. In the event of a vacancy, the delegate is replaced by a substitute who shall
104. complete the term of office of the person he/she replaces.
105. Article 13
106. Trade union organizations representing employees in the public administration
107. are engaged in trade union activity in which (a) they coordinate and convey
108. employees' wishes and aspirations and ensure the strict and just application
109. of the rules and administrative regulations; and (b) they inform employees of
110. the decisions and measures taken in their regard and participate in the
111. implementation thereof.