Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 384, Mars 2018

Cas no 3202 (Libéria) - Date de la plainte: 21-MARS -16 - En suivi

Allegations: The complainant organization alleges the refusal to grant trade union status to NAHWAL as well as the dismissal of workers and other acts of retaliation following a strike, including the dismissal of the complainant’s General Secretary and President, the refusal to hear the complainant’s grievances and the extremely low level of cooperation offered on addressing issues relating to employment conditions in the public health sector

1. 362. The complaint is contained in a communication from the National Health Workers’ Association of Liberia (NAHWAL) dated 21 March 2016. Public Services International (PSI), the International Trade Union Confederation (ITUC) and ITUC–Africa associated themselves with the complaint and provided additional information in communications dated 24 March, 17 October and 31 October 2016, respectively. NAHWAL provided additional information in a communication dated 19 September 2017.
2. 363. The Government provided its observations in a communication dated 16 May 2017.
3. 364. Liberia has ratified both 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

1. 365. In its communications of 21 March 2016 and 19 September 2017, the complainant indicates that, by 2007, thousands of workers in the public health sector worked under unfavourable conditions including: long hours; an insufficient number of staff; and being engaged for significant periods of time (between five and ten years) without employment status which meant a lack of job security, social security or pension entitlements, and coverage under the workers’ health insurance policy. Furthermore, those workers who were on the Government’s employment roster lacked employment letters and job descriptions, had low salaries and were unable to take annual leave due to understaffing and a centralized procedure for granting leave. NAHWAL indicates that it made efforts to engage with the authorities to address these issues, including engagement with the Ministry of Health and the Civil Service Agency in 2010 and 2011. While they had initially worked well together to address these issues, the complainant alleges that the Ministry aborted the consultation without any notice to NAHWAL.
2. 366. NAHWAL specifically disputes the Government’s statements that the General Secretary of the union incited labour protests and disconnected oxygen and intravenous tubes from patients in critical condition in July 2012. To the contrary, the complainant indicates that aggrieved workers who after having served for more than a year had not received their first incentives requested the General Secretary to intervene on their behalf with the hospital administrator. When the administrator stated that there was nothing he could do and that the workers could leave their jobs if they wished, the reaction of those voluntary workers was to stop coming to work as they could not continue to borrow money for transport fares. NAHWAL states that it then called on the other colleagues to assist where those colleagues did not come to work while they continued to look for an amicable solution to the conflict. As the stay-away action of the concerned workers drew public concern, a journalist spoke to the General Secretary about the issues concerned which led to his suspension. Two suspension letters, one for one month and the other three days later for an indefinite period, were attached to the complaint. The complainant points out that neither of these letters refer to allegations of the disconnection of oxygen or intravenous tubes and moreover the Ministry’s own legal counsel found the suspension to be illegal and without due process and advised that the General Secretary be reinstated (a copy of the Legal Advice dated 6 November 2012 was attached to the complaint). The complainant considers these remarks by the Government to be very serious allegations with severe implications of character assassination and consider that the Government must provide any evidence in its possession to support such statements if they are to be taken seriously.
3. 367. The complainant organization indicates that, in February 2013, a petition was submitted by health workers, in close collaboration with NAHWAL, to the legislature. The petition concerned letters of employment, job descriptions and a plan for a salary scheme for health workers. NAHWAL alleges that, following an initial meeting with the Ministry of Health in April 2013, it did not receive a response to its subsequent communications presented between April and July 2013 to the Ministry of Health and members of the legislative committee on health. Following this lack of response, frustrated health workers decided to go on strike, commencing 22 July 2013. Subsequently, negotiations were undertaken and a technical committee was established to examine the issues with the Deputy Minister of Health and the General Secretary of the union participating as key representatives. The technical committee made a number of recommendations, including increasing the salaries of all categories of health-care workers, and as a result, funds were allocated to the Ministry of Health’s budget for 2013–14. NAHWAL alleges, however, that on the advice of the Ministry of Health, the increase of salaries was not approved by the President. NAHWAL considers that, not only was this a usurpation of the powers that are rather accorded to the legislative branch in budgetary matters, but that it also demonstrated a lack of good faith on the part of the Ministry in its participation in the technical committee where no disagreement had been raised in relation to the committee’s recommendations. Subsequently, the Ministry, in collaboration with the Civil Service Agency, published a new plan to come into effect in January 2014 that removed incentives for health-care workers. In this respect, the complainant indicates that it received many complaints from health workers about the procedure for taking this decision which did not involve the workers and was published in the local daily on 30 December 2013 to take effect on 1 January 2014.
4. 368. The complainant organization indicates that, in reaction, health-care workers once again went on strike and alleges that the Government threatened that workers who failed to report to work would be dismissed. On 18 February 2014, 22 health workers across the country believed to be leaders of NAHWAL were dismissed, including the President of NAHWAL, Mr Joseph S. Tamba, and the organization’s General Secretary, Mr George Poe Williams. According to NAHWAL, a number of state and civil society groups appealed to NAHWAL members and leaders to return to work, indicating that they would convince the Government to look into health workers’ concerns and promised that the dismissals would not take effect. In this context, NAHWAL called off the action and health workers returned to work. However, on 28 February 2014, upon returning to work following leave, the organization’s General Secretary was given a dismissal letter dated 18 February 2014.
5. 369. The complainant organization adds that in April 2014, at the beginning of the Ebola outbreak in the country, a demonstration was organized during the West African Health Organization summit to present a petition drawing attention to the risk that the Ebola virus posed to health workers in the country. The demands included training, protective gear and motivational packages (hazard pay and death benefits). NAHWAL considers that, had their demands been listened to, the deaths of many health workers could have been prevented. The union indicates that many workers died without employment status, leaving their dependents without support. Workers subsequently demanded formal contracts which would include safety provisions, hazard pay and death benefits, and to this end, staged a go-slow in October 2014.
6. 370. The complainant organization alleges that both Mr Williams and Mr Tamba have been blacklisted by the Government. Additionally, a number of punitive actions have been carried out against NAHWAL’s members, including the failure to pay the Chairperson of its Bong County chapter (Ms Martha Morris) for eight months, the transfer of the Chairperson of its Rivercess County chapter (Mr Borris Grupee) the day following his participation in a collective action to a village with no mobile phone access to disconnect him from the organization’s members, the demotion of the General Secretary of its Grand Bassa County chapter (Mr Suku), and the threat of dismissal of the Chairperson of its Lofa County chapter. The ITUC indicates that NAHWAL has repeatedly brought these discriminatory measures to the attention of the Ministry of Labour as well as the Civil Service Agency, but remedies were not provided to the workers and no dissuasive sanctions were imposed on those responsible for the infringements. NAHWAL further alleges that the Government is taking measures to undermine the organization, and is attempting to create divisions by providing benefits, including vehicles, to leaders of member organizations under the NAHWAL umbrella.
7. 371. Finally, the complainant organization provides a copy of its request for trade union status dated 30 January 2014 and indicates that it has still not received an official reply to its request, despite efforts to follow up with the Ministry of Labour. It alleges that the then President of the country had indicated that any official who issued a trade union certificate for the union would be fired. In this respect, the ITUC states that the lack of transparency, and the length of the registration procedure imply that the Ministry of Labour has discretionary powers concerning the registration of trade unions which practically amounts to a requirement for previous authorization. The ITUC states that the Government’s refusal to register NAHWAL has had serious implications on the union’s ability to effectively represent its members, in particular through collective bargaining, and to collect union dues. As a demonstration of its legitimacy in representing workers’ interests in the health sector, the complainant provides a copy of a letter from the Liberia Labour Congress (LLC) dated 30 September 2016 in which the LLC advises NAHWAL of its acceptance of its request for affiliation.

B. The Government’s reply

1. 372. The Government, through the Ministry of Health, provides a reply to the complaint in a communication dated 16 May 2017. The Government refers to the challenges of a post-conflict country following 15 years of war. In particular, the Government states that most of the trained health workers had fled the country during the war years and the public health system had collapsed. The few health workers who had remained were employed by international non-governmental organizations (INGOs) and humanitarian organizations that had stepped in to help run the sector in the absence of a stable and effective Government. Non-professional volunteers were trained to serve as aides. Once the elected Government took over in 2006, a gradual process of transition commenced for the Government to absorb facilities and staff giving rise in March 2017 to 10,875 health workers on the Government payroll, an increase of over 400 per cent since 2006.
2. 373. In these circumstances, audits had been necessary to clean the payroll of any ghost workers and another independent payroll audit was under way in May 2017. The Government refers to a number of allegations and demands made by Mr Williams (the General Secretary of NAHWAL) concerning a variety of matters related to the terms and conditions of engagement with health workers, including as regards a salary increment recommended by the technical committee to address health workers concerns (including Mr Williams) of the Legislature Health Committee. This increment was not formally endorsed by the Ministry of Health but the Government emphasizes that this was not a matter of principle, rather that it was impossible to implement such an increment within the total national budget. On this point, the Government indicates that it would welcome the ILO’s guidance on how best to address health workers’ demands in the face of severe resource constraints. The Government confirms that the Ministry of Health and the Civil Service Agency published a plan to remove health workers from incentive payments, but emphasizes that it was done in order to enable it to move them onto the payroll. The Government contends that focusing on the removal from incentive payments had radically misled workers as it had not been clarified that the steps were actually planned to provide workers with stability. In the Government’s opinion, this and other misrepresentations by Mr Williams and Mr Tamba (NAHWAL President), the propagation of false information and the circulation of misleading rumours are what led to the major strike action.
3. 374. The Government asserts that both Mr Williams and Mr Tamba were dismissed on account of acts that were not only inimical to the effective discharge of statutory duties but also in violation of the laws of the Republic of Liberia. In this respect, the Government refers to gross insubordination, obstruction of government functions by public servants and refers to the Labor Practices Law which was in effect at the time, which prohibited purposely promoting, facilitating and inciting strikes against the Government. The Government adds that these dismissals came after years of illegal actions by both men and alleges that that Mr Williams committed dangerous acts with respect to a patient in critical condition and allowed journalists to take and publish photographs of patients without their consent.
4. 375. During 2013 and 2014, the Government states that countless individuals and groups came to the table to plead with NAHWAL organizers to see reason and to proceed peacefully and constructively in their activities. The Government claims that the union’s actions were carried out by a small group of insurgents staging illegal, deadly strikes based on false pretences in the midst of a very fragile society, while the rest of society begged them to see reason and put a stop to the havoc they were wreaking.
5. 376. The Government states that it would need further details on the other allegations of anti union discrimination in order to be able to investigate them. As for the transfer of Mr Grupee to a rural facility, the Government replies that it is a normal and frequent occurrence for a health worker to be transferred from one facility to another and should not be referred to as punitive. As regards the allegations relating to Ms Morris and Mr Suku, the Government states that it has no record.
6. 377. The Government affirms that it has worked closely with professional associations of doctors and nurses, all of whom concern themselves with the interests and well-being of health workers and have petitioned the Government to address grievances related to salaries and payroll issues. These negotiations have proceeded professionally, even when contentious, and the Government challenges NAHWAL’s claim that it is an umbrella organization to these associations.
7. 378. The Government states that it did not communicate with the police in relation to the West African Health Organisation (WAHO) Ministers’ meeting and disavows the union’s claims that the Government failed to provide hazard pay and death benefits or training and protective gear.
8. 379. Finally, as concerns the allegation that the Government refused to grant NAHWAL a trade union certificate, the Government states that there is no opposition to health workers organizing themselves and advocating for their interests if they do so legally and with respect for the rights and safety of patients. The Government indicates that the legislation relevant to trade union recognition has changed since the time of NAHWAL’s application and is now covered by the Decent Work Act, which requires the submission of the union constitution.

C. The Committee’s conclusions

1. 380. The Committee notes that this case concerns allegations relating to the suspension and later dismissal of trade union leaders following industrial action and other acts of anti-union discrimination, interference in the internal affairs of NAHWAL and failure to grant trade union status to the organization.
2. 381. With regard to the allegations concerning 22 workers dismissed in February 2014, the Committee understands that 20 of those workers have been reinstated, while according to the complainant, and concurred by the Government, Mr George Poe Williams and Mr Joseph S. Tamba, the General Secretary and President of NAHWAL, respectively, have not been reinstated. With regard to the allegations concerning the dismissal of Mr Williams and Mr Tamba on 18 February 2014, the Committee observes that these dismissals occurred during the undertaking of industrial action in February 2014 organized by NAHWAL and that the two individuals have not been able to find employment in the public health sector since. The Committee notes the Government’s reply that both Mr Williams and Mr Tamba were dismissed on account of illegal actions spanning a period of years that were not only inimical to the effective discharge of statutory duties but also in violation of the laws of the Republic of Liberia and refers to gross insubordination and obstruction of government functions by public servants. The Government adds that these acts were contrary to the Labor Practices Law which was in effect at the time, which prohibited purposely promoting, facilitating and inciting strikes against the Government. While the Government further alleges specific acts placing a patient in danger and allowed journalists to take and publish photographs of patients without their consent in 2012 when the General Secretary was first suspended, the complainant insists that this constitutes character assassination and has no grounding in fact and provides in this regard a copy of the Legal Advice given to the Minister of Health finding that the suspension was illegal and calling for his reinstatement.
3. 382. The Committee recalls that one of the fundamental principles of freedom of association is that workers should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment, such as dismissal, demotion, transfer or other prejudicial measures. This protection is particularly desirable in the case of trade union officials because, in order to be able to perform their trade union duties in full independence, they should have a guarantee that they will not be prejudiced on account of the mandate which they hold from their trade unions. The Committee has considered that the guarantee of such protection in the case of trade union officials is also necessary in order to ensure that effect is given to the fundamental principle that workers’ organizations shall have the right to elect their representatives in full freedom. The Committee further recalls that all practices involving the blacklisting of trade union officials or members constitute a serious threat to the free exercise of trade union rights and, in general, governments should take stringent measures to combat such practices [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, paras 799 and 803]. The Committee requests the Government to ensure that an independent inquiry is held without delay into the dismissals of Mr Williams and Mr Tamba and expects that, should it be found that these unionists were dismissed for the exercise of legitimate trade union activities, the Government will take the necessary measures of redress, including reinstatement without loss of pay. The Committee requests the Government to keep it informed of developments in this regard.
4. 383. With regard to allegations relating to other acts of anti-union discrimination, the Committee notes that the complainant alleges specific punitive acts against Martha Morris, the Chairperson of its Bong County chapter, Borris Grupee, the Chairperson of its Rivercess County chapter, Mr Suku, the General Secretary of its Grand Bassa County chapter, as well as the threat of dismissal of Washington Kezelee, the Chairperson of its Lofa County chapter. The Committee notes the Government’s indication that it would need further details on these allegations of anti-union discrimination in order to be able to investigate them. As regards more specifically the transfer of Borris Grupee to a rural facility, while the Government states that this is only the manifestation of a normal and frequent occurrence in the health care sector and should not be referred to as punitive, the Committee notes the complainant’s indication that this transfer occurred immediately after a nationwide strike action. In light of the lack of detailed information on these allegations and in relation to their current status, the Committee invites the complainant to furnish detailed information on these allegations to the Government with a view to determining the appropriate redress should it be found that these individual suffered from anti-union retaliation. The Committee requests the Government to keep it informed of developments in this regard.
5. 384. With regard to interference in the affairs of the trade union, the Committee takes note of the complainant’s allegations concerning acts of favouritism by the Government towards leaders of member organizations of NAHWAL in an attempt to create divisions, including the provision of vehicles. While observing the general nature of the information provided, the Committee wishes to emphasize that respect for the principles of freedom of association requires that the public authorities exercise great restraint in relation to intervention in the internal affairs of trade unions; they should not, for example, do anything which might seem to favour one group within a union at the expense of another [see Digest, op. cit., para. 859].
6. 385. With regard to the allegations concerning the registration of the trade union, the Committee notes NAHWAL’s indication that it applied for trade union status three years prior to the complaint, and that it has not received an official reply from the Government. The Committee notes the Government’s indication that trade union registration is now covered by the Decent Work Act of 2015 which requires requests for registration to be accompanied by the constitution of the organization concerned. The Committee regrets that no action had apparently been taken on the complainant’s January 2014 request for registration and is bound to recall that a long registration procedure constitutes a serious obstacle to the establishment of organizations and amounts to a denial of the right of workers to establish organizations without previous authorization [see Digest, op. cit., para. 307]. While noting with concern the delay of three years since the initial request, the Committee, observing that a new Act requires the submission of the union constitution in order to be registered, invites the complainant to resubmit its request for registration in accordance with the new law and requests the Government to take rapid action for its registration. The Committee requests the Government to keep it informed in this respect.
7. 386. The Committee takes due note of the information provided by both the Government and the complainant that the issues in this case arose within a context of budgetary and other challenges facing a country which had emerged from 15 years of war and was confronted by a devastating health epidemic, which carried with it a significant risk to the health-care workers responding to the tragedy. The Committee invites the Government to take measures to promote social dialogue between the complainant organization and the health service authorities concerned with a view to addressing outstanding issues and reminds it that ILO technical assistance is available in this respect should it so desire.

The Committee’s recommendations

1. 387. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to ensure that an independent inquiry is held without delay into the dismissals of the General Secretary of NAHWAL, Mr George Poe Williams, and the President of NAHWAL, Mr Joseph S. Tamba, and expects that, should it be found that these unionists were dismissed for the exercise of legitimate trade union activities, the Government will take the necessary measures of redress, including reinstatement without loss of pay. The Committee requests the Government to keep it informed of developments in this regard.
   • (b) The Committee invites the complainant to furnish detailed information on the allegations of anti-union discrimination with respect to a number of its county chapter officers to the Government with a view to determining the appropriate redress should it be found that these individuals suffered from anti-union retaliation. The Committee requests the Government to keep it informed of developments in this regard.
   • (c) The Committee invites the complainant to resubmit its request for registration in accordance with the new law and requests the Government to take rapid action for its registration. The Committee requests the Government to keep it informed in this respect.
   • (d) The Committee invites the Government to take measures to promote social dialogue between the complainant organization and the health service authorities concerned, with a view to addressing outstanding issues and reminds it that ILO technical assistance is available in this respect should it so desire.