Informe provisional - Informe núm. 69, 1963

Caso núm. 307 (Somalia) - Fecha de presentación de la queja:: 28-AGO-62 - Cerrado

1. 85. The complaint of the General Confederation of Somali Labour is contained in a communication addressed directly to the I.L.O on 28 August 1962. The Government furnished its observations on the complaint by a communication dated 29 December 1962.
2. 86. Somalia has not ratified either the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), or the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. A. The complainants' allegations

• Allegations relating to a Strike of P.T.T. Workers
  87. 87 It is alleged that, from 4 to 8 June 1962, the postal, telegraph and telephone workers declared a strike for fair economic conditions, through their own union, in accordance with article 27 of the national Constitution, but that the Government neither met their requests nor recognised the union, stating falsely that the strike was unlawful because it had a political objective.
  88. 88 The Government declares that article 27 of the Constitution guarantees the right to strike but stipulates that this right " must be expressed within the limits established by law ". Section 140 of the Labour Code concerning the right to strike of public servants provides, with respect to employees of the State and other public bodies, that the " exercise of the right to strike shall be subject to compliance with the laws governing such relationships ". As these laws, however, do not contain provisions relative to the exercise of the right to strike, states the Government, the provisions of section 139 of the Code regulating "strikes in public services and public utility undertakings " were invoked " by analogy ", pursuant to section 5 of the Code. As the workers concerned had not observed the requirements of section 139, the strike was declared illegal and the strikers were regarded as having arbitrarily absented themselves from service within the meaning of section 137 of the Code. In spite of this, declares the Government, it took no disciplinary action against the strikers.
  89. 89 The Committee has always been guided by the principle that allegations relating to the exercise of the right to strike are not outside its competence in so far, but only in so far, as they affect the exercise of trade union rights and has noted on a number of occasions that the right of workers and their organisations to strike as a legitimate means of defending their occupational interests is generally recognised. In this connection the Committee has emphasised the importance which it attaches, where strikes are prohibited or subject to restriction, to ensuring adequate guarantees to safeguard to the full the interests of the workers thus deprived of an essential means of defending occupational interests', and has pointed out that the restriction should be accompanied by adequate, impartial and speedy conciliation and arbitration proceedings, in which the parties concerned can take part at every stage.
  90. 90 To understand the situation clearly it is necessary to consider more closely the relevant provisions of the Labour Code.
  91. 91 It appears from the Government's reply that postal, telegraph and telephone workers are regarded as falling within the category of " public servants " covered by section 140 of the Code and not within the category of workers in " public services and public utility undertakings " covered by section 139 of the Code.
  92. 92 Section 140 provides that:
• In the case of persons employed by the State and by other public bodies and in the case of all workers belonging to categories in which the employment relationships are governed exclusively by law or by decisions of a public authority, the exercise of the right to strike shall be subject to compliance with the laws governing such relationships.
• The Government has furnished the text of the regulations concerning the employment of public servants but, as the Government points out in its reply, they contain no provisions relating to the exercise of the right to strike. The Government states that in the absence of such provision it is necessary to refer to section 5 of the Code, which stipulates that:
• The provisions of this Code shall also apply to persons employed in the public service or by public institutions, save where the employment relationship is otherwise regulated by law.
• Pursuant to this, the Government had recourse to section 139, which provides that:
• In public services and public utility undertakings, the right to strike may be exercised only on condition:
  1. (1) that at least ten days' notice has been given in writing, after the conciliation, arbitration or judicial procedure has been exhausted;
  2. (2) that services are maintained by a sufficient number of workers, so that the essential requirements of the public can be met.
  93. 93 While the legal basis on which section 5 can be regarded as permitting section 139 of the Code, which applies to a special category of employees, to be applied " by analogy " to another special category may not be entirely clear, it would seem that the complaining organisation could have challenged this legal interpretation, if it had seen fit to do so, by taking advantage of section 135 of the Code, according to which:
• The Court of Justice shall have exclusive jurisdiction over appeals as to the legality of measures taken in trade union and labour matters by the Minister of Social Affairs.
• In the present case there is no suggestion that the complainants had recourse to the courts. This being so, the Committee has to regard the situation of the postal workers as being governed by the general provisions concerning the conciliation and arbitration of collective disputes contained in sections 132 and 133 and by the provisions of section 136 regarding strikes in general, modified in certain respects as regards the postal workers (by analogy), and as regards employees in public services and public utility undertakings, by section 139 cited in the preceding paragraph.
  94. 94 Section 132 provides for compulsory conciliation in all collective disputes. If this fails, however, it is not followed-in the case of employees in either the public or private sector of the economy-by compulsory arbitration. It appears from section 133 that the conciliator, following the failure of conciliation, must recommend the parties to refer the matter to arbitration. Only if this recommendation is accepted by both parties must the case go to arbitration by a board consisting of equal numbers of employers' and workers' representatives, sitting under a neutral chairman. An award of this board has the same legal effect as a collective agreement, which in turn, according to section 28, shall have the force of law between the parties. But, under section 134, in the absence of any submission to arbitration, either party may apply to the courts " for the protection " of its rights; the precise scope of this provision is not clear.
  95. 95 The exercise of the right to strike in general is, according to section 136 of the Code, subject to prior resort to conciliation or arbitration and to 48 hours' notice in writing. As noted in paragraph 92 above, this is modified-in law, in the case of employees in public services and utilities, and in fact at least, in the case of public servants not covered by other relevant provisions such as the postal, telegraph and telephone workers-by section 139, which requires ten days' notice after the conciliation, arbitration or judicial procedure has been exhausted.
  96. 96 It would seem therefore that the postal workers involved in the strike would have been in order if they had followed the compulsory conciliation procedure and, if this had failed, given ten days' notice of their intention to strike. Such a requirement, in the case of a public service such as posts, telegraphs and telephones, would not appear to entail per se an infringement of trade union rights. The Committee has accepted as reasonable the requirement of due notice of the intention to strike in the case of an essential service, together with temporary restriction of a strike until existing means of negotiation, conciliation or arbitration have been exhausted. That is the situation in the present instance and it would not, from this point of view, appear to be open to criticism.
  97. 97 The point which calls for careful consideration is that, after having exhausted the conciliation procedure and given the statutory notice of intention to strike, the postal or other workers covered by section 139 of the Labour Code, who are not covered by compulsory arbitration provisions, are bound to ensure that the services " are maintained by a sufficient number of workers, so that the essential requirements of the public can be met ". This provision is in such general terms that, if it should be interpreted restrictively, it might be construed as implying that any reduction at all in the services affected means that the essential requirements of the public are not met.
  98. 98 While the question as to whether workers in an essential service shall have the right to strike or not is a matter for national law or practice to decide, it is to be observed that the more exercise of the right to strike is restricted in such circumstances, the more the law generally accords other compensatory safeguards to protect the position of the workers concerned.
  99. 99 Accordingly, where national legislation does permit workers in an essential service or industry to call a strike-and, therefore, does not oblige their disputes to be submitted to arbitration-the law does not normally go further than to require the strikers to maintain in work the minimum number of workers necessary to protect installations and machinery and comply with statutory safety measures. The Committee had regard to this fact in Case No. 60 relating to Japan, when it accepted as normal restrictions on the right to strike in the coal-mining industry which, without limiting the right to cease production, refused the right to strike to persons required to protect installations and comply with statutory safety requirements, and in Case No. 40 (Tunisia), in which the Committee noted that, in respect of the public sector, the Government was entitled, subject to the supervision of the administrative judge, to attach certain restrictions to the right to strike, which was lawful in principle, in the case of supervisory personnel and personnel responsible for the maintenance of security.
  100. 100 On the other hand, where the restrictions placed on the exercise of the right to strike go further than the requirement of maintaining the services affected to the minimum degree necessary to protect installations and to comply with necessary safety measures, there is normally provision for arbitration machinery to which the workers affected can always have recourse. But, in Somalia, the position of postal, telegraph and telephone workers and of workers in public services and utilities appears to be that, while their effective exercise of the right to strike may be restricted, even after they have otherwise complied with the provisions of the Labour Code, by section 139 (2) of the Code they are not afforded the compensatory safeguard of having the right to oblige the other party with whom they are in dispute to submit to arbitration by the board set up under the Code.
  101. 101 In these circumstances the Committee recommends the Governing Body:
       • (a) to draw the attention of the Government to the importance which the Governing Body has always attached, where strikes are restricted or prohibited in essential services, to ensuring adequate guarantees to safeguard to the full the interests of the workers thus deprived of an essential means of defending occupational interests, and to the principle that such restriction or prohibition should be accompanied by the provision of adequate, impartial and speedy conciliation procedures and of impartial arbitration machinery;
       • (b) to suggest to the Government that, if it is intended to maintain the present limitation placed upon the exercise of the right to strike by section 139 (2) of the Labour Code, it may care to consider taking steps to ensure that the categories of workers to whom that section applies may in all cases have recourse to the arbitration machinery established by the Code irrespective of whether the other party to a dispute consents to its submission to arbitration or not;
       • (c) to request the Government to be good enough to keep the Governing Body informed of further developments in this connection.
  102. Allegations relating to the Transfer of Officers of the Union of Somali Teachers
  102. 102 The complainant organisation alleges that, on the occasion of the election on 29 June 1962 of the officers of one of its affiliates, the Union of Somali Teachers, the Government arbitrarily interfered, contrary to section 9 of the Labour Code, in order to gain control of the governing body of the Union. The complainants contend that the authorities transferred away from the capital " all the lawful legitimate trade union representatives of the teachers who had just been elected, and brought back to the city from the interior persons favourable to the Government who had not been elected, so as to recognise them as officers of the Union ". As the lawful representatives refused such exile, in accordance with the law, it is alleged, the Government intends to dismiss them. One of the persons transferred is alleged to be the General Secretary of the General Confederation of Somali Labour, who is also the President of the Union of Somali Teachers.
  103. 103 The Government declares that the statement that several teachers have been transferred to new posts because of their trade union activities is entirely unfounded. It points out that the Ministry of Public Education assigns teachers annually to posts according to service requirements and that, under the Civil Service Regulations, they may not refuse such assignments. According to the Government the transfer of the three teachers, including the General Secretary of the complaining organisation, is a part of the normal annual turnover determined solely by teaching requirements. The persons concerned, despite various warnings, refused to take up their new duties and, on 23 August 1962, the Ministry of Public Education referred their cases to the Disciplinary Board provided for in the Civil Service Regulations. The Board found against the teachers and held them to be subject to " dismissal from service ". On 16 October 1962 they were informed that the proposed disciplinary action had been taken. The teachers were entitled to appeal to the Supreme Court against this decision within 60 days.
  104. 104 There are two points which would seem to call for further elucidation. The complainants allege that all the elected officials, and not just three teachers, of the Teachers' Union were transferred at the same time. They also allege that the Government brought back from the interior persons who had not been elected, so as to recognise them as officers of the Union. The Committee has always attached the greatest importance to the principle, embodied in Article 1 of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), that workers should enjoy adequate protection against acts of anti-union discrimination in respect of their employment, including acts calculated to cause the dismissal of or otherwise prejudice a worker by reason of union membership or because of participation in union activities. In these circumstances, before making its recommendations to the Governing Body on this aspect of the case, the Committee requests the Government to be good enough to furnish more detailed observations on these particular points adduced by the complainants.
• Allegations relating to Interference with the General Confederation of Somali Labour
  105. 105 The complainants allege that the Government and police are oppressing and intimidating the trade unions and their officers, that they cannot hold meetings freely, for trade union purposes, even in their own trade union offices, that they cannot proclaim their ideas in writing despite the guarantee contained in article 28 of the Constitution, and that the General Secretary of the Confederation and all the other members of the committee of management and secretariat of the organisation are being persecuted.
  106. 106 The Government contends that these general allegations are not supported by any specific evidence and that its respect for trade union rights is demonstrated by the existence of 34 duly constituted trade unions in the country. According to the Government, law enforcement agencies have never persecuted or intimidated any trade unions or trade union leaders, but have intervened on rare occasions, generally at the request of the workers, to restore calm at trade union meetings and, in other cases, to prevent disturbances.
  107. 107 These allegations are couched in very general terms and contain no reference to any specific events. In the view of the Committee they are in such vague terms as to preclude any possibility of examination on their merits.
  108. 108 In these circumstances the Committee recommends the Governing Body to decide that these allegations do not call for further examination.

The Committee's recommendations

1. 109. In all the circumstances the Committee, having regard to the fact that the Committee has always been guided by the principle that allegations relating to the exercise of the right to strike are not outside its competence in so far, but only in so far, as they affect the exercise of trade union rights, recommends the Governing Body:
   • (a) to decide that the allegations relating to interference with the General Confederation of Somali Labour do not call for further examination;
   • (b) to decide, with regard to the allegations relating to a strike of postal, telegraph and telephone workers:
   • (i) to draw the attention of the Government to the importance which the Governing Body has always attached, where strikes are restricted or prohibited in essential services, to ensuring adequate guarantees to safeguard to the full the interests of the workers thus deprived of an essential means of defending occupational interests, and to the principle that such restriction or prohibition should be accompanied by the provision of adequate, impartial and speedy conciliation procedures and of impartial arbitration machinery;
   • (ii) to suggest to the Government that, if it is intended to maintain the present limitation placed upon the exercise of the right to strike by section 139 (2) of the Labour Code, it may care to consider taking steps to ensure that the categories of workers to whom that section applies may in all cases have recourse to the arbitration machinery established by the Code irrespective of whether the other party to a dispute consents to its submission to arbitration or not;
   • (iii) to request the Government to be good enough to keep the Governing Body informed of further developments in this connection;
   • (c) to take note of the present interim report with regard to the allegations relating to the transfer of officers of the Union of Somali Teachers, it being understood that the Committee will report further on these allegations when it has received further information which it has decided to request from the Government.