Report in which the committee requests to be kept informed of development - Report No 370, October 2013

Case No 2714 (Democratic Republic of the Congo) - Complaint date: 14-APR-09 - Closed

Allegations: Harassment and intimidation of trade union leaders

1. 695. The Committee last examined this case at its March 2012 meeting, when it presented an interim report to the Governing Body [see 363rd Report, approved by the Governing Body at its 313th Session (2012), paras 1088–1097].
2. 696. At its June 2013 meeting [see 368th Report, para. 5], the Committee made an urgent appeal to the Government indicating that, in accordance with the procedural rules set out in paragraph 17 of its 127th Report, approved by the Governing Body, it could present a report on the substance of the case at its next meeting, even if the requested information or observations had not been received in time. To date, the Government has not sent any information. However, on its visit to the country, a technical assistance mission of the Office was able to collect information on this case from the Government’s representatives.
3. 697. The Democratic Republic of the Congo 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. Previous examination of the case

1. 698. In its last examination of the case in March 2012, deploring the fact that, despite the time that had elapsed, the Government had not provided any information on the allegations, the Committee made the following recommendations [see 363rd Report, para. 1097]:
   • (a) In general, the Committee notes with deep regret that the Government has still not provided any information whatsoever regarding the five consecutive complaints presented since 2009, which have already been examined in the absence of the Government’s reply and which allege grave violations of freedom of association. The Committee notes with deep regret that the Government continues to fail to comply, despite assurances given to the Chairperson of the Committee at a meeting held in June 2011, and expects the Government to be more cooperative concerning this case.
   • (b) The Committee urges the Government to provide detailed information without delay on the reasons for the disciplinary measures applied against Mr Basila Baelongandi and Mr Bushabu Kwete, CCT union leaders, in June 2008 and January 2009, indicating in particular whether they remain suspended and, if so, why. If it is found that the measures in question were motivated solely by their legitimate trade union activities, the Committee expects that the officials in question will be reinstated without delay and paid the wages arrears and other benefits owed to them, and that the Government will ensure that such acts of anti-union discrimination will not recur in future. If reinstatement is not possible for objective and compelling reasons, the Committee requests the Government to take the necessary measures to ensure that the trade union leaders are paid adequate compensation which would represent a sufficiently dissuasive sanction for anti-union discrimination.
   • (c) The Committee requests the Government to provide its observations without delay on the summons issued by the prosecution service for Mr Bushabu Kwete to attend a hearing and, in particular, the reasons for the summons.
   • (d) The Committee, recalling that it is for trade unions to appoint their own representatives on consultative bodies, requests the Government to reply without delay in detail to the complainant’s allegations concerning the appointment of a trade unionist who, according to the complainant, has no union mandate, to the Bonus Allocations Committee.
   • (e) The Committee requests the Government, or the complainant, to provide information on the composition of the bodies within the General Directorate for Administrative, Judicial, Property and Share Revenues (DGRAD) and to clarify the role of the unions in that regard.
   • (f) The Committee reminds the Government of the possibility to avail itself of the technical assistance of the Office.

B. The Committee’s conclusions

1. 699. The Committee notes with interest that the Government has accepted a technical assistance mission by the International Labour Office to collect information in relation to the different cases that the Committee has been examining for a number of years without evidence of any real progress in the follow-up to its recommendations. The Committee has taken note of the report of the technical assistance mission (in the appendix to this report) and welcomes the new spirit of collaboration demonstrated by the Government. It hopes that any further recommendations will be followed in the same spirit.
2. 700. In this case, the Committee notes with concern the information that, from 2009 to 2012, Mr Basila Baelongandi, member of the Congolese Labour Confederation (CCT) at the General Secretariat for Foreign Trade, was regularly harassed and underwent disciplinary measures, including his suspension from work, on account of his union activities. The Committee notes that Mr Baelongandi’s last suspension from work and of pay dates back to the period July–October 2010. However, the disciplinary action brought against him was not upheld and a decision of the Ministry of Public Service of 16 April 2012 ordered his reinstatement. In this decision, the Ministry notes the expiry of the disciplinary action filed in August 2010 and only referred to the Ministry ten months later, in breach of the Act on the status of state public service career staff, which establishes a statutory timeframe of three months. The decision orders the reinstatement of Mr Baelongandi to the General Secretariat for Foreign Trade, to the rank and position that he occupied at the time of his suspension, and the back payment of wages and other benefits outstanding from the date of his suspension. The Committee notes that, according to the complainant organization, Mr Baelongandi has been reinstated to his position as head of the department for social actions.
3. 701. The Committee, however, notes that Mr Baelongandi requests the administration to pay all his outstanding wages and benefits for the period of his suspension, in accordance with the decision of 16 April 2012, which does not yet appear to have been done. The Committee notes that the representative of the Secretary-General for Foreign Trade, who met with the ILO mission, confirmed that officials’ wages are paid partly by the Ministry of Public Services, and partly by the department in which they work. In the case of Mr Baelongandi, measures will be taken by the administration of the General Secretariat for Foreign Trade to calculate and pay the wages outstanding for the period of his suspension. The Committee urges the Government to take all necessary steps to ensure that Mr Baelongandi is paid all outstanding wages and benefits without delay and to keep it informed in this regard.
4. 702. In conclusion, the Committee, while noting that the complainant organization informed the ILO mission that its trade union representatives are now able to carry out their trade union activities at the General Secretariat for Foreign Trade without hindrance, wishes to express its deep concern that trade unionists performing their legitimate trade union activities have regularly been the subject of disciplinary measures within this administration that have not been followed up, and that the perpetrators of these anti-union actions have not been prosecuted. The Committee recalls that no one should be subjected to discrimination or prejudice with regard to employment because of legitimate trade union activities or membership, and that the persons responsible for such acts should be punished [see Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO, fifth (revised) edition, 2006, para. 772]. The Committee expects the Government to ensure respect for this principle and that all anti-union acts in respect of employment in the public administration are from now on heavily sanctioned.

The Committee’s recommendations

1. 703. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee urges the Government to take all necessary steps to ensure that Mr Baelongandi is paid all outstanding wages and benefits without delay and to keep him informed in this regard.
   • (b) The Committee, recalling that no one should be subjected to discrimination or prejudice with regard to employment because of legitimate trade union activities or membership, and that the persons responsible for such acts should be punished, expects the Government to ensure respect for this principle and that all anti-union acts in respect of employment in the public administration are from now on heavily sanctioned.

Appendix

• Technical assistance mission of the International Labour Office to the Democratic Republic of the Congo (14–20 July 2013)

• A. Context of the mission
• 1. Since 2009, the Committee on Freedom of Association has received several complaints from a number of trade union confederations against the Government of the Democratic Republic of the Congo. To date, the Committee has received six complaints. In accordance with Committee procedure, the Government has been invited to provide its observations in response to the allegations presented in the complaints. However, until recently, the Government has not reacted to any of the cases and, despite regular reminders from the Office, no observations on the allegations nor on the Committee’s recommendations have reached the Office. The President of the Committee on Freedom of Association was obliged to meet with a government delegation to stress the importance of providing information and, to that end, the Committee has offered the Office’s technical assistance on various occasions.
• 2. The Government sent partial information regarding three of the six cases in January 2013 and accepted an assistance mission from the Office to collect information on the cases. The mission, comprising a legal specialist on freedom of association from the International Labour Standards Department and the specialist on international labour standards of the ILO Office in Yaoundé, visited Kinshasa from 14 to 20 July 2013.
• 3. The mission received logistical support from the ILO Office in Kinshasa and the collaboration of the Ministry of Labour to draw up the schedule of meetings. The mission was thus able to meet all the parties to the six cases examined by the Committee, as well as the Minister of Labour and the Chief of Staff of the Prime Minister, who was prevented from attending at the last minute.
• B. Information gathered by the mission on Case No. 2714
• 4. Regarding Case No. 2714, the mission met a member of the CCT involved in the case, Mr Basila Baelongandi, at the organization’s headquarters. The mission was informed that Mr Hervé Bushabu Kwete is no longer a party to the complaint and has resigned from the complainant organization (he has remained in the department and has joined another organization). The mission also spoke with a representative of the General Secretariat for Foreign Trade regarding this case.
• 5. According to the information collected by the mission: Mr Basila Baelongandi, member of the CCT at the General Secretariat for Foreign Trade, was regularly harassed and underwent disciplinary measures, including suspension from work, on account of his trade union activities. According to the information submitted to the mission, Mr Baelongandi’s last suspension from work and of wages dates back to the period of July–October 2010. However, the disciplinary action brought against him was not upheld and a decision of the Ministry of Public Service of 16 April 2012 ordered his reinstatement. In this decision, the Ministry notes the expiry of the disciplinary action filed in August 2010 and only referred to the Ministry ten months afterwards, in breach of the Act on the status of state public service career staff which establishes a mandatory timeframe of three months. The decision orders the reinstatement of Mr Baelongandi to the General Secretariat for Foreign Trade, to the rank and position that he held at the time of his suspension and orders the payment of the wages and other benefits outstanding from the date of his suspension.
• 6. The complainant organization informed the mission that Mr Baelongandi is currently performing without hindrance his functions as head of the department for social actions as well as his trade union activities. It, however, requests the administration to pay Mr Baelongandi all the wages and benefits outstanding for the period of his suspension, in accordance with the decision of 16 April 2012, which does not yet appear to have been done.
• 7. The mission has received confirmation from the representative of the Secretary-General for Foreign Trade that officials’ wages are paid partly by the Ministry of Public Service, and partly by the department in which they work. He undertook to ensure that the administration of the General Secretariat for Foreign Trade takes measures to calculate and pay the outstanding wages and benefits for the period of Mr Baelongandi’s suspension.