Definitive Report - Report No 388, March 2019

Case No 3296 (Mozambique) - Complaint date: 28-AUG-17 - Closed

Allegations: legal requirements that prevent the registration of the National Union of the Public Service (SINAFP)

1. 426. The complaint is contained in a communication from Public Services International (PSI) dated 28 August 2017.
2. 427. The Government sent its observations in a communication dated 30 October 2018.
3. 428. Mozambique has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 429. In its communication dated 28 August 2017, Public Services International (PSI), on behalf of its affiliate the National Union of the Public Service (SINAFP), indicated that the SINAFP had been established at a meeting of constituents held in Maputo in August 2001. The complainant organization recalled that at the time of the establishment of the SINAFP, although the 1990 Constitution of Mozambique protected the right to organize, the country did not yet have a specific law regulating the organization, functioning and exercise of trade union rights in the public service. Consequently, the Government and the Workers’ Organization of Mozambique – Union Federation (OTM-CS) signed a statement of understanding on 28 August 2001, recognizing the functioning of the SINAFP and agreeing to establish a technical labour committee to develop a bill establishing a legal basis for the exercise of trade union rights in the public service.
2. 430. PSI emphasizes that: (i) this legal basis only came into force on 27 August 2014, with the promulgation of Act No. 18/2014, which establishes the legal framework for the exercise of the right to freedom of association in the public service, exactly 16 years after the establishment of SINAFP and the abovementioned statement of understanding; and that (ii) throughout that period and until now, the SINAFP has been actively representing the workers of the public service.
3. 431. The complainant organization also alleges that Act No. 18/2014, which sets out, inter alia, the procedures for the establishment of trade union organizations for the public service, does not recognize the prior existence of the SINAFP. Consequently, after 16 years of operation, the Government demanded that the SINAFP re-register in order to gain the legal personality that would allow it to operate as a trade union.
4. 432. The complainant organization indicates that the SINAFP had to submit a new application for registration on 16 November 2016, which had 4,537 signatures, but on 9 August 2017 the National Directorate for the Strategic Management of Human Resources of the State rejected that request citing an insufficient number of signatures.
5. 433. The complainant organization alleges that the requirements established in Act No. 18/2014 are excessive and that the Government’s interpretation of that Act hinders the free exercise of freedom of association of public service employees in the country, insofar as: (i) under section 37.1, a trade union association can establish itself as a trade union when it represents at least 5 per cent of all state officials and employees. In that respect, the complainant organization indicates that it is estimated that there are approximately 325,000 public officials in Mozambique – in other words, if this figure is correct, at least 16,250 members would be needed to fulfil this requirement – and that this 5 per cent is calculated using the total number of public officials, including those that need special laws to enjoy their right to organize (which is the case for a third of public officials), such laws have not been adopted, thus, in practice, the percentage required to register a trade union is much higher than 5 per cent; and (ii) under section 10.2(d), a nominal list of all the members with their notarized signatures is required. The organization considers that, in practice, this creates a significant financial barrier, as notarizing each signature costs the trade union 25 Mozambican meticais (MZN) (US$0.37), which would bring the cost of registration to more than US$6,012.50, considering that 16,250 members are needed to register a trade union.
6. 434. The complainant organization therefore alleges that the free exercise of the right to freedom of association of officials and employees of the public administration in the country is being hindered, and that this argument is borne out by the fact that the prior existence of the SINAFP has not been recognized, unlike private sector trade unions, which were recognized through Act No. 23/91.

B. The Government’s reply

1. 435. In a communication of 30 October 2018, the Government merely indicated that Act No. 18/2014 was in the process being revised to simplify the recognition process for the SINAFP, and to bring it into line with the other institutions of the public service.

C. The Committee’s conclusions

1. 436. The Committee notes that the main focus of the present complaint is the impossibility of the SINAFP obtaining official registration, as a consequence of Act No. 18/2014, which establishes a threshold of 5 per cent of the total number of public officials in order to enjoy the right to organize, despite the fact that the SINAFP has been active in the country for 16 years.
2. 437. The Committee notes the Government’s indication that the legal requirements in question are currently being revised, but regrets that it has not provided more information in response to the allegations of the complainant organization. In this respect, the Committee reminds the Government that the purpose of the whole procedure established by the International Labour Organization for the examination of allegations of violations of freedom of association is to ensure respect for this freedom in law and in practice. The Committee remains confident that, while this procedure protects governments against unreasonable accusations, they must recognize the importance of formulating, for objective examination, detailed replies concerning allegations brought against them [see First Report of the Committee, para. 31].
3. 438. The Committee notes the complainant organization’s indication that it made a registration request with 4,537 signatures on 16 November 2016, which was rejected by the National Directorate for the Strategic Management of Human Resources of the State due to an insufficient number of signatures (decision of 9 August 2017, annexed to the complaint). The Committee notes that, under section 37.1 of Act No. 18/2014, a trade union association can establish itself as a trade union when it represents at least 5 per cent of all public officials and employees. The Committee also observes that, according to data provided by PSI, and if the total number of public officials in the country is correct, around 16,250 members would be required to comply with this condition, and that even if that figure was revised on the basis of the categories of public officials that currently enjoy the right to organize, it would still amount to a threshold of approximately 10,000 members.
4. 439. The Committee wishes to recall that the right to official recognition through legal registration is an essential facet of the right to organize since that is the first step that workers’ or employers’ organizations must take in order to be able to function efficiently, and represent their members adequately [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 449]. Regarding the required number of members, and irrespective of any economic consideration that might arise out of section 10.2(d), and the cost of a notarized signature, the Committee wishes to recall that the legally required minimum number of members must not be so high as to hinder in practice the establishment of trade union organizations [see Compilation, op. cit., para. 435). The Committee considers that the establishment of a trade union may be considerably hindered, or even rendered impossible, when legislation fixes the minimum number of members of a trade union at obviously too high a figure, as in this case. In view of the above, and given that the SINAFP has a significant number of members, the Committee requests the Government to take the necessary measures, including legislative measures, in order that this trade union can be registered in the near future, and refers the legislative aspects of this case to the Committee of Experts on the Application of Conventions and Recommendations.
5. 440. The Committee also notes that the National Directorate for the Strategic Management of Human Resources of the State gave its negative response almost nine months after the registration request; such a period of time is excessive and not conducive to harmonious industrial relations.

The Committee’s recommendations

1. 441. In light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to take the necessary measures, including legislative measures, in order that the SINAFP can be registered in the near future.
   • (b) The Committee refers the legislative aspects of this case to the Committee of Experts on the Application of Conventions and Recommendations.