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ILCCR: Examination of individual case concerning Convention No. 87, Freedom of Association and Protection of the Right to Organise, 1948 Djibouti (ratification: 1978) Published: 2007Description:(ILCCR Individual Observation) Convention:C087 Country:(Djibouti) Session of the Conference:96 Document:22 Subject classification: Freedom of Association Subject classification: Collective Bargaining and Agreements Subject: Freedom of Association, Collective Bargaining, and Industrial Relations Display the document in: French Spanish Document No. (ilolex): 132007DJI087 A Government representative stated that his Government was surprised to be called before the Committee once again and observed that the explanations that he had provided to the Committee of Experts had seemingly not been taken into consideration. With regard to legislative issues, he asserted that the new Labour Code enacted in January 2006 marked the outcome of a decade's effort, over the course of which all the relevant partners had been consulted, at both the national and international levels, including the ILO and the Arab Labour Organization. In its final version, the Code reflected all relevant comments. Moreover, after the draft Code had been approved by the Council of Ministers, it was sent to the National Assembly, which summoned all the workers' and employers' organizations in order to listen to their opinions once again. It then studied the text article by article, having no qualms about amending various provisions, even if the Government did not agree. It was understandable that persons or groups were challenging the Code's contents, but the fundamental truth was that the law was the law and the Code had to be abided by once it was adopted. Nevertheless, the Government undertook before the Committee to amend all provisions of the Code that were found to violate the Convention. With regard to the practical application of the Convention, and particularly the factual issues set forth in the Committee of Experts' report - arrests of trade unionists, physical aggression against demonstrators and strikers, acts of anti-union harassment, raids on the homes of trade unionists and the prohibition on holding elections in the national mint - the Government representative asserted that those allegations were based solely on imprecise information which was inadmissible and which the Government emphatically rejected. The Government would remain attentive to any comments made by the Committee of Experts in the future on legislative issues. The Employer members recalled that this case had been discussed in 2000 and 2001. They noted the adoption of a new Labour Code in 2006 and the Government's indication that broad consultations had taken place during the drafting process. While noting that according to the Government the new Labour Code had resolved the issues relating to the requirement of prior authorization for the establishment of trade unions, the Employer members regretted that this matter had not been duly reported to the Committee of Experts. Similarly, the Government failed to report on the new Labour Code's provisions regarding the ability of foreign nationals to hold trade union office. Regarding the exercise of freedom of association of public servants, the Employer members recalled the Committee of Expert's observation that the legislation should limit the President's power of requisitioning to those public servants exercising authority in the name of the State and to essential services in the strict sense of the term. The Government had not provided any information on this matter. The Employer members noted the Government's promises to reinstate promptly the dismissed trade union leaders. In conclusion, they requested the Government to provide a detailed and comprehensive report on all the pending issues. The Worker members expressed regret that, although several years had passed since the commitments undertaken by the Government in 2001, the Committee was again bound to address the issue of non-application of the Convention. Firstly, the Government had undertaken to introduce the appropriate amendments on the occasion of the revision of the Labour Code, in order to eliminate the requirement of previous authorization for the establishment of workers' organizations foreseen in section 5 of the Act. According to the new Labour Code published in January 2006, however, the establishment of a trade union still required the authorization of several ministers and the public prosecutor, who, moreover, had the power to dissolve a workers' organization by simple administrative decision. Secondly, the Government had committed to amending section 6 of the former Labour Code that exclusively conferred on nationals of Djibouti the right to exercise trade union functions. While this matter had indeed been addressed in section 214 of the new Labour Code, the exercise of trade union functions was henceforth prohibited for any previously condemned person and any person exercising functions in the management and administration of political parties, which was contrary to Article 3 of the Convention. Thirdly, as regards the restriction of the right to strike of public servants, the Government had undertaken to specify the limits of the "power of requisitioning" of public servants engaged in essential services, but nothing had been done in this respect. Fourthly, the Government had committed in 2002 to reinstating trade union leaders who had been dismissed for reasons linked to trade union activities. These persons were requested to give pledges of loyalty to be able to be reinstated. To date, ten trade union leaders had still not been reinstated, despite the request of the Committee on Freedom of Association to reinstate workers wishing to be reinstated and to compensate those refusing reinstatement. Fifthly, notwithstanding the recommendations of the ILO, the Government put forward a workers' organization manipulated by it, and again this year had designated persons affiliated to this union to represent the workers at the International Labour Conference. The new Labour Code damaged and obstructed independent workers' organizations, and its anti-union provisions clearly violated the Convention. The anti-union repression had become worse, as illustrated by the dismissal of certain trade union leaders who were also subject to harassment, intimidation and blackmail; the violent repression of a strike of bus drivers, the arrest of trade unionists and the assassination of one of them; the prohibition to hold trade union elections in the national mint; the obstruction of the establishment and election of free trade unions; the mass arrest and detention of trade unionists of the Union of Port Workers (UTP); the arrest of trade union leaders for having "communicated information to a foreign power"; the expulsion of an international union solidarity mission; the harassment of trade unionists in the education sector; and the exile of trade unionists. The Worker members believed that these facts demonstrated the Government's will to constantly reduce the role of the trade union movement in the country. They requested the Government to accept a direct contacts mission to the country, in order to assess the application of the Convention. The Worker member of Djibouti stated that workers' organizations had been consulted on the occasion of the drafting of the Labour Code, but some of their suggestions had not been accepted. He pointed out that the critical comments formulated by an expert on the draft code had only partially been taken into consideration, and the rest had been rejected. As a fundamental Convention, Convention No. 87 prevailed over domestic law. Thus the Government had accepted to amend the Labour Code to bring it into conformity with this international instrument and had relied on a tripartite committee to this end. Finally, it would appear desirable that a direct contacts mission be carried out in the country. The Worker member of Senegal stated that the non-observance of the relevant provisions of the Convention demonstrated the Government's will to stifle and repress freedom of association. The supervisory system as embodied by the Committee came up against the refusal of the Government to comply with the provisions of the Convention. The observation of the Committee of Experts mentioned specific cases of anti-union repression (physical aggressions, measures of removal, harassment, opposition to trade union elections, exile of trade unionists, etc.). The Government's restrictions on freedom of association had to be denounced, and the Committee needed to stand up against such practices. The indifference of the Government revealed how it perceived this matter. The repression had to cease, as freedom of association was the foundation of social dialogue, and the Committee needed to strive to ensure that the Government stopped infringing the rights and principles laid down in the Convention. The Government representative challenged the Worker members' allegations of anti-union actions committed by his Government. He indicated that all cited trade unionists had refused reinstatement, pretending to exercise, contrary to the law of Djibouti, a political mandate and a union mandate. Moreover, compensation had been granted to those unionists in lieu of reinstatement. There had been no assassinations of trade unionists in Djibouti. Trade unionists that had left the country had done so of their own free will. In response to a question raised by the Employer members, the speaker specified that the Labour Code had been modified so as to ensure that foreign workers could exercise trade union functions. The Government did not hold foreigners up to public disgrace. Finally, the Government undertook to accept a direct contacts mission and to review its labour legislation if necessary. The Employer members noted that previously the Government had submitted incomplete reports, while the information presented to the Committee had been of a very general nature. They urged the Government to ensure that the requirements of the Convention were fully reflected in law, including in the Labour Code, and in practice. Finally, they urged the Government to supply the Committee of Experts with a detailed report replying to all the points raised in its observation, as soon as possible. The Worker members noted all elements brought up in the course of the discussion and came to the painful conclusion that the facts as they perceived them were radically different from the facts as presented by the Government. They deplored the bad faith of the Government in refusing to recognize the inconvenient truth. The Worker members nonetheless considered the acceptance of the principle of a direct contacts mission as a step forward. They expressed the hope that the new Labour Code could thus be revised so as to give full effect to Articles 2 and 3 of the Convention. They also hoped that the Labour Union of Djibouti (UDT) and the General Union of Djibouti Workers (UGTD) would be officially recognized and could thus normally convene their Congress. Finally, the Worker members expressed the hope that, thanks to this direct contacts mission, light would be shed on the climate of violence and oppression weighing heavily on the trade union movement.
ConclusionsThe Committee took note of the statement made by the Government representative, as well as the discussion that took place thereafter. The Committee observed that the pending questions concerned allegations relating to numerous arrests of trade unionists, physical aggression against demonstrators, raids on the homes of trade unionists and acts of anti-union harassment. The Committee of Experts had further noted information concerning the non-compliance of the recently adopted Labour Code with the Convention. The Committee also recalled the discrepancies between the national legislation and the Convention that had been raised by the Committee of Experts for many years. The Committee noted the information provided by the Government according to which the new Labour Code was the fruit of ten years of consultation. The Government further denied ever having arrested trade unionists for exercising trade union activities. Welcoming the Government's expressed commitment to review the new Labour Code, in light of the Convention, the Committee trusted that it would rapidly begin this process in full and meaningful consultation with the social partners with a view to ensuring its compliance with the provisions of the Convention. It requested the Government to provide detailed information on the new Labour Code, particularly as regards the requirement of previous authorization for the formation of a union and restrictions relating to the holding of union offices for certain persons, as well as on any consultations held thereon, in its report due in 2007 so that the Committee of Experts would be in a position to examine its conformity with the Convention. It further requested the Government to provide detailed information on the steps taken to ensure that workers' organizations may elect their officers freely without interference by the public authorities. As regards the allegations concerning the arrest and detention of trade unionists, physical aggression and intimidation and anti-union harassment, the Committee, like the Committee of Experts, recalled that the rights of workers' and employers' organizations could only be exercised in a climate that is free from violence, pressure or threats of any kind against the leaders and members of these organizations. It urged the Government to ensure respect for this principle. The Committee welcomed the Government's acceptance of a direct contacts mission in order to clarify the situation as regards all of the issues raised. It expressed the firm hope that it would be in a position to note significant progress made in the application of the Convention next year. |
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