Allegations: The complainant organization objects to the contents of the
Ministerial Order of 9 March 2015 establishing the national classification of trade union
confederations in Cameroon following elections of staff representatives held on 15 January
2014
- 114. The complaint is contained in a communication dated 25 March 2015
made by the Cameroon United Workers Confederation (CTUC).
- 115. The Government sent its observations in communications dated 1
December 2015 and 1 February 2016.
- 116. Cameroon has ratified the Freedom of Association and Protection of
the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and
Collective Bargaining Convention, 1949 (No. 98).
A. The complainant’s allegations
A. The complainant’s allegations- 117. In a communication dated 25 March 2015, the CTUC objects to the
contents of Ministerial Order No. 032/MINTSS/SG/DRP/SDRT of 9 March 2015 (the
Ministerial Order of 9 March 2015) establishing the national classification of workers’
trade union confederations in Cameroon following elections of staff representatives held
on 15 January 2014. In particular, the complainant alleges that: (i) in accordance with
article 20 of Act No. 92-007 of 14 August 1992 on the Labour Code (Labour Code), the
representative nature of trade union organizations is established by the number of its
members and that trade union elections cannot be considered an element of
representativeness; (ii) the order of the Minister of Labour and Social Security
(MINTSS) on the classification of workers’ trade union confederations in Cameroon
violates the provisions of article 20 of the Labour Code as well as Conventions Nos 87
and 98, since it ignores the numbers of their members and is confined to workers’
organizations while excluding the employers’ organizations which are also members; (iii)
the classification of confederations established by the Ministerial Order of 9 March
2015 states neither the number of affiliated unions nor the numbers of their members;
(iv) the report of the Committee for collection and analysis of the records of the
social elections of 15 January 2014, supposedly a tripartite body, did not include a
single employer, and of its 34 members only 12 were present during the collection and
analysis of the election records (seven representatives of MINTSS and five from the
trade union confederations); (v) the sole aim of the Ministerial Order of 9 March 2015,
issued in haste under pressure from the ILO, was to justify accreditations to the 104th
International Labour Conference, in 2015, of trade union confederations whose
representative status was dubious, to the detriment of confederations, such as the
complainant, which are free and independent; (vi) the results of the staff
representative elections, made public 14 months after the elections, were falsified and
unsubstantiated (for example, during the social elections at the National Electricity
Company of Cameroon (ENEO) and the National Water Company of Cameroon (CDE), the
National Federation of Workers’ Unions in the Electricity and Water Sectors of Cameroon
(FENSTEEEC), an affiliate of the complainant organization, obtained 243 staff
representatives, whereas the Ministerial Order of 9 March 2015 attributes only
123 representatives to the CTUC); and (vii) the MINTSS has never published the record of
the elections at its ministry, at which the National Union of Contractual Workers of
Cameroon (SNCC), affiliated to the complainant, presented candidates and obtained staff
representatives.
- 118. The complainant states that it initiated an appeal several times to
challenge the contents of the Ministerial Order of 9 March 2015. When invited, on 23
October 2014, to sign the minutes approving the work of the tripartite committee, the
complainant, in a communication to the MINTSS dated 30 October 2014, expressed its
objections concerning deliberate violation of the provisions of the Labour Code, data
falsification and the publication of erroneous results (according to the complainant, it
obtained 637 representatives in the union elections but the Ministerial Order of 9 March
2015 wrongly attributed it 123 representatives). The complainant then lodged a
preliminary internal appeal at the MINTSS dated 19 March 2015 requesting rescindment of
the Ministerial Order of 9 March 2015 without delay on grounds of deliberate violation
of the Labour Code and of Order No. 019/MTPS/SG/SG/CJ of 26 May 1993 as amended by Order
No. 0016/CAB/MINTSS of 1 October 2013, failure to implement collection and analysis
procedures at the union elections and falsification of their results. A similar
communication dated 24 March 2015 was also sent to the Prime Minister. The complainant
adds that the results and a comparative analysis of the documents released by the
ministerial department raise suspicions of corruption and of conspiracy against it.
Accordingly, on 7 April 2015 the complainant filed a complaint with the Administrative
Tribunal of the Centre in Yaoundé requesting the suspension of the Ministerial Order of
9 March 2015 and, on grounds of absence of any objective criteria for determining the
most representative workers’ organizations, also contested in the ILO Credentials
Committee the composition of the Workers’ delegation of Cameroon to the 104th Session of
the International Labour Conference (2015).
- 119. The complainant emphasizes its regret that the Ministerial Order of
9 March 2015 is already published, and considered and used by the Government and certain
confederations as the reference document on the representativeness of trade union
organizations in Cameroon. It also avers that the Ministerial Order of 9 March 2015
seriously harms its operations and those of its affiliated bodies and denounces a
deliberate policy to weaken and divide the trade unions and the inter-union platform in
Cameroon. Accordingly, the complainant requests the Committee to invite the Government
to rescind the disputed order and to provide accurate information on the trade union
organizations representing workers in Cameroon, together with an indication of their
membership numbers, in accordance with the Labour Code in force.
- 120. The complainant also asserts that before the elections it obtained
information from an affiliated organization, the SNCC, according to which ministry
associates had prevented the SNCC from submitting lists of candidates for the union
elections of 15 January 2014 and had declared open candidatures. The complainant
addressed a communication dated 9 January 2014 to the MINTSS noting repeated
interference by ministry associates and threats made to workers in the ministerial
department on account of their trade union membership and because they were standing as
candidates in the union elections. The complainant also requested the labour and social
security representative for the Centre Region to order that lists of candidates
presented by the SNCC be taken into consideration and published at the ministry and in
all other jurisdictions.
B. The Government’s reply
B. The Government’s reply- 121. The Government submitted its observations in communications dated 1
December 2015 and 1 February 2016. Concerning the classification of trade union
confederations, the Government states that, under national law, it has jurisdiction to
establish the final results of union elections for staff representatives by Ministerial
Order, on the basis of records produced by the tripartite committee for that purpose.
According to the Government, the Ministerial Order of 9 March 2015 only stated the
results of the elections as described in the record and ranked them according to the
results achieved by each organization. Thus, the Government’s responsibility cannot be
discussed in relation to allegations made pursuant to the provisions of Conventions Nos
87 and 98, which stipulate respect for, and protection of, the rights of trade union
organizations, as those rights were neither suspended nor transferred. Concerning trade
union representativeness, the Government states that the information on membership
numbers that enables trade union representativeness to be determined was not available
at the time the Cameroon delegation to the 104th Session of the International Labour
Conference (2015) was established, and thus in appointing it the Government made use of
the classification resulting from the union elections. The Government then became aware
of this deficiency and resolved to correct it. To that end, labour inspectors have been
working in the field together with the National Labour Observatory to determine the
actual numbers of trade union organization members and of workers employed, in
accordance with article 20 of the Labour Code. The Government states that the results of
this investigation will provide it with an accurate idea of the number of trade unions
and their various members and enable it to identify the most representative workers’ and
employers’ unions. The Government asserts that it will transmit these results to the
Committee as soon as possible, and that it has sent the Committee a copy of the decision
handed down by the Administrative Tribunal of the Centre in Yaoundé to which the
complainant had appealed.
- 122. The Government also transmits the observations made by the Cameroon
National Trade Union Confederation Workers’ Alliance (ENTENTE) concerning the complaint.
ENTENTE states that, pursuant to article 20 of the Labour Code and in order to determine
the representativeness of trade union organizations, the most objective, efficient and
stable mechanism remains union elections, which allow workers freely to nominate their
representatives. According to ENTENTE, this does not conflict with article 20 of the
Labour Code or Convention No. 87. However, ENTENTE states that the poor performance and
blatant bias of the tripartite committee for collection and analysis of the records of
the union elections of 15 January 2014 led some workers’ organizations to interpret the
provisions of the Labour Code incorrectly. According to the trade union organization,
reform of the regulations on union elections to establish more transparent collection
and analysis of the results of future such elections, from the local to international
level, will reduce the complaints and level of frustration. Concerning the investigation
involving the National Labour Observatory, ENTENTE considers that the requested
information is highly subjective, since only the unions themselves are providing it, and
that the investigation is more concerned with restructuring the unions, which in no way
diminishes the importance and exclusive objectivity of elections under article 20 of the
Labour Code. ENTENTE states further that the investigation can only result in a random
statistical estimate with no real influence on the important issue of trade union
representativeness.
C. The Committee’s conclusions
C. The Committee’s conclusions- 123. The Committee notes that this case concerns an objection to the
contents of the Ministerial Order of 9 March 2015 establishing the national
classification of trade union confederations in Cameroon following the elections of
staff representatives held on 15 January 2014.
- 124. The Committee observes that the complainant organization denounces,
firstly, the use of union elections to determine the representativeness of trade union
confederations and, secondly, the biased nature of the committee for collection and
analysis of the records of the union elections of 15 January 2014, together with
interference by the MINTSS in the union elections and threats made against workers
belonging to the ministerial department because of their trade union membership and
activities. The Committee notes the complainant’s main assertions that: (i) according to
article 20 of the Labour Code, the representativeness of trade union organizations is
determined by the number of its members, and union elections cannot be considered an
element of representativeness; (ii) the Ministerial Order of 9 March 2015 violates this
law as well as Conventions Nos 87 and 98, since it does not consider the numbers of
members and excludes employers’ organizations; (iii) the classification of
confederations set out in the Ministerial Order of 9 March 2015 does not state either
the number of affiliated trade unions or the numbers of their members; (iv) the report
of the committee for collection and analysis of the records of the union elections of 15
January 2014, supposedly a tripartite body, did not involve a single employer, and of
the committee’s 34 members only 12 were present during the collection and analysis of
the election records (seven representatives of the MINTSS and five from the trade union
confederations); (v) the Ministerial Order of 9 March 2015 was issued in haste to
justify accreditations of trade union confederations to the 104th Session of the
International Labour Conference (2015); (vi) the results of the staff representative
elections were made public 14 months after the elections and were falsified and
unsubstantiated (according to the complainant, it had obtained 637 representatives,
whereas the Ministerial Order attributed it only 123 representatives); (vii) the MINTSS
has never published the records of the elections at its ministry in which the SNCC,
affiliated to the complainant, presented candidates and obtained staff representatives;
and (viii) the results and comparative analysis of documents released by the ministerial
department raise suspicions of corruption and conspiracy against the complainant. The
Committee notes a further allegation by the complainant that, according to information
from an affiliated organization, the SNCC, ministry associates prevented it from
submitting lists of candidates for the union elections of 15 January 2014 and declared
open candidatures, and that the complainant noted repeated interference by ministry
associates and threats made against workers in the ministerial department on account of
their trade union membership and because they were standing as candidates in union
elections. The Committee notes that the complainant initiated an appeal several times at
the national level to object to the contents of the Ministerial Order of 9 March 2015: a
letter of protest was sent to the MINTSS in which the complainant objected to deliberate
violation of the provisions of the Labour Code, to data falsification and the
publication of erroneous results; a preliminary internal appeal was sent to the MINTSS
dated 19 March 2015 aimed at rescinding the Ministerial Order of 9 March 2015 without
delay on the grounds of deliberate violation of the Labour Code as well as faulty
collection and analysis procedures at the union elections and falsification of their
results; a similar communication dated 24 March 2015 was also sent to the Prime
Minister; the complainant filed a complaint with the Administrative Tribunal of the
Centre in Yaoundé requesting the suspension of the Ministerial Order of 9 March 2015;
and, in the absence of any objective criteria for determining the most representative
workers’ organizations, it also lodged an objection with the Credentials Committee of
the International Labour Conference concerning the composition of the Workers’
delegation of Cameroon to the 104th Session of the Conference (2015). The Committee
observes that the complainant highlights the fact that the Ministerial Order of 9 March
2015 seriously damages its operations and those of its affiliated bodies, and that it
denounces a deliberate policy to weaken and divide the trade unions and the inter-union
platform in Cameroon.
- 125. The Committee takes note of the Government’s observations that it
has jurisdiction to establish the final results of union elections for staff
representatives by Ministerial Order, on the basis of records produced by the tripartite
committee set up for that purpose. The Committee observes that the Government states
that the Ministerial Order of 9 March 2015 merely established the results of the
elections as described in the records and ranked them according to the results achieved
by each organization, and that the Government’s responsibility cannot be discussed in
relation to allegations made pursuant to the provisions of Conventions Nos 87 and 98,
since the rights of the trade union organizations were neither suspended nor
transferred. The Committee notes that the Government states, on the subject of trade
union representativeness, that the information on membership numbers enabling trade
union representativeness to be determined was not available at the time the Cameroon
delegation to the 104th Session of the International Labour Conference (2015) was
established, and thus the Government had used the classification resulting from the
union elections to designate the most representative trade unions. The Committee also
notes that the Government became aware of this deficiency and resolved to correct it,
with the result that labour inspectors are now working in the field together with the
National Labour Observatory to determine the actual numbers of members of trade union
organizations and of workers employed, to enable the Government to gain an accurate idea
of the numbers of unions and their different members and determine the most
representative workers’ and employers’ unions in accordance with article 20 of the
Labour Code. The Government will transmit this information to the Committee. The
Committee notes the Government’s statement that it has transmitted to the Committee the
decision of the Administrative Tribunal of the Centre in Yaoundé, but observes that the
decision has not been sent to the Committee.
- 126. The Committee also notes the comment by ENTENTE that the most
objective, efficient and stable mechanism for determining the representativeness of
trade union organizations remains union elections that enable workers freely to nominate
their representatives, and that this is in no way contrary to article 20 of the Labour
Code. However, the Committee observes that ENTENTE emphasizes certain shortcomings in
the tripartite committee, including its poor performance and its blatant bias in
collecting and analysing the union election results. The Committee further observes
that, according to ENTENTE, reform of the regulations on union elections so as to
establish more transparent conditions for the collection and analysis of future election
results would help to reduce the frustrations of the trade union organizations.
- 127. The Committee takes note from the complainant’s allegations and the
Government’s reply, as well as the comments of ENTENTE, that: article 20 of the Labour
Code stipulates that the representative nature of a trade union is established, as
necessary, by order of the minister responsible for labour, taking into account, for
workers’ unions, the numbers of members; on 15 January 2014, elections of staff
representatives were held across the whole country; by order of 6 January 2014 the
Government set up a tripartite committee within the MINTSS comprising representatives of
Government, employers and workers, which was responsible for collecting and analysing
records and for drafting a record of all its operations; following analysis of the union
election results sent to the tripartite committee, a national classification of trade
union confederations of Cameroon was established by the Ministerial Order of 9 March
2015, which ranked the complainant in ninth place for representativeness; the
classification was used as the basis for forming the Cameroon Workers’ delegation to the
104th Session of the International Labour Conference (2015); and the complainant made
several attempts at the national level to object to the contents of the Ministerial
Order of 9 March 2015 and also addressed a communication on this subject to the
Credentials Committee of the International Labour Conference. The Committee notes that
the Credentials Committee took note of the complainant’s communication objecting to the
designation of the Workers’ delegation and decided that the communication did not call
for any action on its part. The Committee observes that, while the complainant objects
to the use of union elections to determine the representativeness of trade union
organizations and requests that the Ministerial Order of 9 March 2015 be rescinded, the
Government’s explanation is that, since the information on numbers of members which
enables trade union representativeness to be established was unavailable at the time
when it was appointing the Cameroon delegation to the 104th Session of the International
Labour Conference (2015), the Government used as its basis the results of the
classification that emerged from the union elections. The Committee notes with concern
the complainant’s allegations, supported by the comments of ENTENTE, that the collection
and analysis of results from the union elections, as carried out by the tripartite
committee set up for that purpose, was biased and partial and thereby damaging to
certain trade union organizations, an allegation on which the Government does not
comment. On the other hand, the Committee notes with interest the Government’s statement
that labour inspectors, working together with the National Labour Observatory, are
recording trade unions in the field to determine their actual numbers and the numbers of
their employees, so as to identify the most representative trade union organizations in
accordance with article 20 of the Labour Code.
- 128. The Committee recalls that Conventions Nos 87 and 98 are compatible
with systems which envisage union representation for the exercise of trade union rights
based on the degree of actual union membership, as well as those envisaging union
representation on the basis of general ballots of workers or officials, or a combination
of both systems. However, the determination of the most representative trade union
should always be based on pre-established criteria so as to avoid any opportunity for
partiality or abuse. Recognizing the possibility of trade union pluralism does not
preclude granting certain rights and advantages to the most representative
organizations. However, the determination of the most representative organization must
be based on objective, pre-established and precise criteria so as to avoid any
possibility of bias or abuse, and the distinction should generally be limited to the
recognition of certain preferential rights, for example for such purposes as collective
bargaining, consultation by the authorities or the designation of delegates to
international organizations [see Digest of decisions and principles of the Freedom of
Association Committee, fifth (revised) edition, 2006, paras 347, 349 and 354.] The
Committee trusts that the steps taken by the Government to ascertain the numbers of
trade union organizations and their members will permit it to determine the most
representative workers’ and employers’ organizations under the current national
legislation and in accordance with the abovementioned principles. The Committee requests
the Government to forward the decision taken by the Administrative Tribunal of the
Centre in Yaoundé concerning the Ministerial Order of 9 March 2015 to which the
complainant objects.
- 129. The Committee notes with concern the statements from the complainant
about interference by the MINTSS in union elections and threats made to ministerial
department workers on account of their trade union membership and because they were
standing as candidates in union elections, and notes that the Government provides no
observations on this matter. The Committee wishes to stress that workers and their
organizations should have the right to elect their representatives in full freedom, and
the latter should have the right to put forward claims on their behalf. Any intervention
by the public authorities in trade union elections runs the risk of appearing to be
arbitrary and thus constituting interference in the functioning of workers’
organizations, which is incompatible with Article 3 of Convention No. 87, which
recognizes their right to elect their representatives in full freedom. Furthermore, acts
of harassment and intimidation carried out against workers by reason of trade union
membership or legitimate trade union activities, while not necessarily prejudicing
workers in their employment, may discourage them from joining organizations of their own
choosing, thereby violating their right to organize [see Digest, op. cit., paras 389,
429 and 786]. In light of these principles, the Committee requests the Government to
ensure that the public authorities do not intervene in union elections and that workers
are not threatened or discriminated against because of their membership of a trade union
organization or their legitimate trade union activities.
- 130. In light of the issues raised by the complainant, the Committee
urges the Government to take steps to deepen the social dialogue in the country and
invites it to avail itself of ILO technical assistance to this end should it so
desire.
The Committee’s recommendations
The Committee’s recommendations- 131. In light of its foregoing conclusions, the Committee invites the
Governing Body to approve the following recommendations:
- (a) The Committee
requests the Government to send the decision handed down by the Administrative
Tribunal of the Centre in Yaoundé concerning the Ministerial Order of 9 March 2015
which is contested by the complainant organization.
- (b) Emphasizing that
interference in union elections and anti-trade union discrimination are contrary to
the principles of freedom of association, the Committee requests the Government to
ensure that the public authorities do not intervene in union elections and that
workers are not threatened or discriminated against because of their membership of a
trade union organization or their legitimate trade union activities.
- (c) In
light of the issues raised by the complainant, the Committee urges the Government to
take steps to deepen the social dialogue in the country and invites it to avail
itself of ILO technical assistance to this end should it so desire.
