Observación (CEACR) - Adopción: 2009, Publicación: 99ª reunión CIT (2010)

The Committee notes that the Government’s report has not been received. It must therefore repeat its previous observation which read as follows:

Legislative problems. The Committee recalls that its previous comments concerned the provisions of Act No. 133/AN/05/5^e L of 28 January 2006 issuing the Labour Code. The Act was denounced by the International Trade Union Confederation (ITUC) and also by the Labour Union of Djibouti (UDT) and the General Union of Djibouti Workers (UGTD) as challenging fundamental rights relating to freedom of association. The Committee noted that, according to the report of the direct contacts mission undertaken in January 2008, the Government reaffirmed that all the social partners were consulted in the process of preparation of the Labour Code. However, the Committee noted that the Government held working meetings with the mission to consider the points of divergence between the national legislation and the Conventions in order to rectify them and that it undertook to bring the recommended solutions to the attention of a tripartite National Council for Labour, Employment and Vocational Training (CNTEFP), which was due to be constituted. The Committee noted that, in its report of May 2008, the Government reiterated its commitment to reviewing certain provisions of the legislation in order to bring them into conformity with the Convention and bring them to the attention of the CNTEFP. In this respect, the Committee noted the warning contained in the report of the direct contacts mission regarding any excessive delay in constituting the CNTEFP and the impact thereof on the adoption of the necessary legislative amendments. It also noted the mission’s recommendation that, in a context where the representativeness of workers’ organizations has not yet been established in a clear and objective manner, no representation from the trade unions in Djibouti should be discarded from the work of the CNTEFP. The Committee endorses the recommendations of the direct contacts mission on this point and requests the Government to indicate whether the CNTEFP has been constituted and state the composition thereof.

The Committee wishes to remind the Government of its comments concerning the following points of divergence between the Labour Code and the Convention:

–      Sections 41 and 42 of the Labour Code. These provisions concern the suspension of employment contracts. Section 41 provides that the employment contract shall be suspended, among other cases, for the duration of any regular, political or trade union office held by the worker which is not compatible with paid employment (paragraph 8). Section 42 provides in addition that the period during which the employment is suspended shall not be counted for the purpose of determining the worker’s seniority within the undertaking. The Committee considers that the holding of trade union office is not incompatible with professional life and, consequently, any worker holding trade union office should be able to remain employed. The Committee therefore considers that sections 41 and 42 of the Labour Code, in providing for a more or less automatic suspension of the employment contract when a worker holds trade union office, are likely to be detrimental to the rights of all workers to establish and join the organization of their own choosing or to hold trade union office (Articles 2 and 3 of the Convention). The Committee therefore requests the Government to amend sections 41 and 42 of the Labour Code by providing that the possibility of suspending the employment contract during a period in which a worker holds a trade union office that is incompatible with a professional activity is a matter for negotiation between the employer and the trade union, who must establish the relevant arrangements, and that in any case such suspension cannot be automatic.

–      Section 214 of the Labour Code. This section provides that any person convicted “by any court” may not hold office as a trade union leader. The Committee recalls that a law which generally prohibits access to trade union office because of any conviction is incompatible with the principles of freedom of association (Article 3 of the Convention), when the activity condemned is not prejudicial to the attitude and integrity required to exercise trade union office. In this case, the Committee considers that section 214 of the Code, in deeming any person who has been convicted to be unsuitable for trade union office, is formulated too broadly and would cover situations in which the nature of the conviction is not inherently such as to rule out the holding of trade union office. The Committee therefore requests the Government to amend section 214 of the Labour Code so as to ensure that only court convictions for offences which by their nature call into question the integrity of the individual are deemed to be incompatible with the holding of trade union office.

–      Section 215 of the Labour Code. This section concerns the formalities for registration and verification of the legality of a trade union. Under the terms of this section, the founders of any occupational trade union are required to deposit their regulations and the list of persons responsible for their administration and management; within a period of 30 days following their deposit, copies of the regulations and the list of persons responsible for the administration and management of the union are transmitted by the labour inspector to the Minister of Labour and the Chief Public Prosecutor; the documents are accompanied by a report prepared by the Labour Inspectorate; the Minister of Labour then has 15 days to issue a receipt granting legal recognition to the union; the Chief Public Prosecutor then has 30 days to verify the regulations and review the situation of each of the officials responsible for the administration and management of the union and to notify the Minister of the Interior, the Minister of Labour and the union leaders concerned of his/her conclusions; any modification to the regulations and any changes to the composition of the officials responsible for the management or administration of the trade union have to be brought to the knowledge of the same authorities and are subject to verification under the same conditions. The Committee firstly wishes to remind the Government that Article 2 of the Convention guarantees the right of workers and employers to establish organizations without previous authorization by the public authorities. It therefore considers that national legislation which requires the deposit of the regulations of organizations is compatible with this provision if it is a mere formality intended to ensure that the regulations are available to the public. Nevertheless, problems of compatibility with the Convention may arise if the registration procedure is lengthy or complicated, or if the rules concerning registration are applied in such a way as to defeat its purpose and the registration authorities make excessive use of their discretionary power. The Committee notes that section 215 of the Labour Code, under which the decision of the Minister of Labour requires not only the deposit by the founders of the trade union of the relevant documents but also a detailed report by the labour inspector, would appear to grant the administration more or less discretionary power in deciding whether or not an organization meets the registration criteria. This situation could amount in practice to denying the right of workers and employers to establish organizations without previous authorization, in contravention of Article 2 of the Convention. The Committee therefore requests the Government to amend, in consultation with the social partners, section 215 of the Labour Code so as to guarantee the right to establish workers’ and employers’ organizations without previous authorization, remove the provisions which give de facto discriminatory powers to the administration and ensure that the registration procedure is merely a formality.

Finally, the Committee recalls that its previous comments were also concerned with the need for the Government to repeal or amend the following provisions of the legislation:

–      Section 5 of the Act on associations. This provision, which requires organizations to obtain authorization prior to their establishment as trade unions, is contrary to Article 2 of the Convention.

–      Section 23 of Decree No. 83-099/PR/FP of 10 September 1983. This provision, which confers upon the President of the Republic broad powers to requisition public servants who are indispensable to the life of the nation and the proper operation of essential public services, should be amended in order to restrict the power of requisition to public servants who exercise authority in the name of the State or in essential services in the strict sense of the term.

Noting that the Government displayed a degree of openness during the direct contacts mission by indicating that it was planning a number of amendments and declaring its willingness to receive technical assistance and advice from the Office, the Committee trusts that the Government will take the necessary steps as soon as possible to revise and amend the legislative provisions, taking into account the comments reiterated above. It expresses the firm hope that the Government’s next report will contain information on the progress made in this respect.

The Committee takes note of the comments dated 26 August 2009 from the ITUC which reiterate matters already examined by the Committee, as well as denouncing persistent acts of anti-union harassment and discrimination and the brutal repression of strike actions. The Committee urges the Government to provide its reply to the ITUC’s comments.

Finally, the Committee takes note of the conclusions of the Credentials Committee of the Conference concerning the examination of an objection, in June 2009, concerning the nomination of the Workers’ delegation of Djibouti. The Credentials Committee concluded that the Government had not fulfilled its obligations as set out in article 3 of the ILO Constitution because it had not nominated Workers’ delegates representing the workers of Djibouti in agreement with the most representative workers’ organization. Furthermore, it regretted the absence of any progress, despite the expectations raised in the recommendations of the direct contacts mission of January 2008, as well as the hopes expressed last year, and called upon the Government to guarantee the implementation of a procedure based on objective and transparent criteria for the nomination of the Worker representatives at future sessions of the Conference. To this end, it expected that these criteria will be identified so that consultation with all parties concerned, and particularly with the genuine workers’ organizations in Djibouti, which includes the UGDT whose current secretary-general is Mr Mohamed Abdou, could be carried out in an environment respecting the ability of the workers’ organizations to act in total independence from the Government, in accordance with 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).

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.

The Committee is raising other points in a request addressed directly to the Government.