INTERNATIONALLY RECOGNISED CORE LABOUR STANDARDS IN DJIBOUTI

Transcription

1 INTERNATIONAL CONFEDERATION OF FREE TRADE UNIONS INTERNATIONALLY RECOGNISED CORE LABOUR STANDARDS IN DJIBOUTI REPORT FOR THE WTO GENERAL COUNCIL REVIEW OF DJIBOUTI S TRADE POLICIES (Geneva, 27 February - 1 March 2006) SUMMARY Djibouti has ratified all eight core ILO Conventions. It nonetheless needs to take measures, both legislative and practical, to comply with the commitments it accepted in Singapore, Geneva and Doha in the WTO Ministerial Declarations over , and in the ILO Declaration on Fundamental Principles and Rights at Work adopted in June Although Djibouti has ratified the two core ILO Conventions protecting trade union rights, the government places serious restrictions on these rights, both at legislative level and in practice. The Government continues to ignore the repeated calls for dialogue and conciliation, and invariably reneges on its promises to implement the ILO recommendations on freedom of association. Trade unionists are subjected to constant harassment, such as the unfair dismissal of their representatives, and protests are met with police brutality. Djibouti has ratified the two core ILO Conventions on discrimination. Notwithstanding, custom prevails and women continue to hold a lower rank in society and to be deprived of the same opportunities as men in terms of access to schooling and employment. The abolition of the minimum wage legislation is regrettable, given that it is often an effective way of ensuring equal pay for work of equal value. Djibouti has ratified the two core ILO Conventions on child labour, but has established no mechanisms to ensure that the laws concerning child labour are enforced. Djibouti has ratified the two core ILO Conventions on forced labour, but there are several key elements of its national legislation that do not comply with ILO standards on this matter.

2 2 INTERNATIONALLY RECOGNISED CORE LABOUR STANDARDS IN DJIBOUTI Introduction This report on the observance of internationally recognised core labour standards in Djibouti is one of a series the ICFTU is producing in accordance with the Ministerial Declaration adopted at the first World Trade Organisation (WTO) Ministerial Conference (Singapore, 9-13 December 1996) and ratified at the second WTO Ministerial Conference (Geneva, May 1998), at which Ministers stated: "We renew our commitment to the observance of internationally recognised core labour standards." The fourth Ministerial Conference (Doha, 9-14 November 2001) reaffirmed this commitment. These standards were further upheld in the International Labour Organisation (ILO) Declaration on Fundamental Principles and Rights at Work adopted by the 174 member countries of the ILO at the International Labour Conference of June There are two free and independent trade union confederations in Djibouti: The Union Djiboutienne du Travail (UDT) and the Union Générale des Travailleurs Djiboutiens (UGTD). On gaining independence, Djibouti inherited a structurally extroverted economy, chiefly focused on the demand for external services. Today, the economy is heavily dependent on the services sector, which accounts for 80% of the Gross National Product (GNP) and 80% of jobs. Given the country s strategic location and its status as a free trade zone in northeast Africa, the services provided are generally linked to its port facilities, road and rail connections. Public administration accounts for 27% of GDP while transport and telecommunications account for 18%. Poor in natural resources, the country s primary and industrial sectors account for only 5% and 15% of GNP, respectively. Agriculture plays a limited role given the lack of fertile land and rainfall (less than 0.3% of the land is arable). The fishing sector, although potentially important, remains unexploited. Djibouti s economic development over the last two decades has been erratic, marked by a succession of political crises (regional wars, armed conflict within the country) and economic shocks (mainly drought related), giving rise to a progressive decline in the country s competitiveness, financial situation and its social and economic infrastructures. The resulting fall in per capita income has been constant. The main sustainable human development indicators have also been in continual decline. Every piece of data points to widespread and structural poverty affecting all social classes. The figures on employment reveal a severe crisis on the labour market, with over half of the active population unemployed. In 2002, the value of exports rose to 150 million US dollars, that is, around 24% of GDP. The main export goods are re-exports (all goods), leather and skins. The value of imports rose during the same year to 665 million US dollars, that is, 107% of GDP. The main import goods are foodstuffs, drinks, transport equipment, chemical and petroleum products. Djibouti s main trading partners in 2002 were Somalia, Ethiopia, Yemen, France, Italy, Saudi Arabia and Great Britain. Djibouti is a member of COMESA, the Common Market for Eastern and Southern Africa. It has preferential access to the US market under AGOA (African Growth and Opportunity Act), and is currently negotiating an economic partnership agreement (EPA) with the European Union under the Cotonou Convention.

3 3 I. Freedom of association and the right to collective bargaining Djibouti has ratified ILO Convention No. 87 on Freedom of Association and Protection of the Right to Organise, and Convention No. 98 on the Right to Organise and Collective Bargaining. Although the Constitution and national legislation guarantee the workers right to join a union, the government places serious restrictions on the exercise of this right both in law and in practice. Discrimination against trade unionists is forbidden by law, and employers found guilty of such practices are legally obliged to reinstate any workers who have been unfairly dismissed. Notwithstanding, the government neither enforces this law nor endeavours to ensure it is respected. For over 15 years, the ILO Committee of Experts on the Application of Conventions and Recommendations (CEACR) has been urging the government to urgently restore trade union rights, both in law and in practice. In the observations addressed to the government, the Committee placed particular emphasis on the importance of guaranteeing the workers right to freely and democratically elect their trade union representatives within the context of company-level union elections and the ordinary congresses of trade union confederations. A new Labour Code was adopted by the Council of Ministers in 2004 and approved by the Parliament on 25 December It is regrettable that the government decided to disregard ILO standards and draw up this new Labour Code unilaterally, without prior consultation of the social partners. Furthermore, this failure to consult constituted a flagrant breach of the labour legislation in force when the new Code was being drawn up. The Labour Code of 1952 in fact stipulates that a Supreme Labour Council (a tripartite body) must be convened to issue opinions and formulate recommendations and proposals on any future legislation concerning employment and working conditions. The ILO Committee of Experts on the Application of Conventions and Recommendations has repeatedly called on the government to repeal or amend Article 5 of the law on associations, as amended in 1977, whereby organisations must obtain prior authorisation to form a trade union. The Committee has in fact reminded the government on several occasions that under the terms of Article 2 of ILO Convention 87, workers have the right to establish organisations of their own choosing, without prior authorisation. The government recently informed the Committee that under the new Labour Code the legal existence of trade unions would not be subject to registration and control. The national workers union, UDT, nonetheless believes that the new Code will constitute an even greater obstacle to freedom of association as the authorisation of the Interior Ministry, the Labour Inspectorate, the Ministry of Justice and the Attorney General will be required to form a trade union. Furthermore, the Attorney General will have the power to dissolve any given trade union, by means of a simple administrative decision, if requested to do so by these Ministries. In addition, the Committee has, for over fifteen years, been drawing attention to the fact that Article 6 of the Labour Code in force, which reserves the right to occupy trade union posts exclusively to nationals of Djibouti, constitutes a restriction on the full exercise of the workers right to freely elect their representatives, as stipulated in Article 3 of Convention 87. Despite the

4 4 government s assurance that this provision would be repealed, the Committee has not been informed of the tabling of new legislation. Article 23 of Decree /PF/FP of 10 September 1983, establishing the conditions for the exercise of trade unions rights and the right to strike, grants the President of the Republic broad powers to requisition all public servants deemed crucial to the life of the nation and the proper running of essential pubic services. The ILO Committee of Experts on the Application of Conventions and Recommendations has, for many years, been asking the government to amend this legislation to limit requisitioning powers to public servants in positions of authority or in essential services in the strict sense of the term, in other words, those that, if interrupted, could endanger the life, security or health of people within the nation as a whole or part thereof, or in the event of a severe national crisis. The government has taken no measures in this respect to date. The right to collective bargaining is recognised by law, but in practice the government does nothing to ensure its respect. As collective bargaining does not exist, the relationship between employers and workers is generally paternalistic and informal. In some instances, the government itself selects the workers representatives. The preamble of the Constitution recognises the right to strike, subject to the provision of 48 hours notice. In practice, however, strikes are brutally repressed. Trade union rights are not respected in practice. Since the government s unfair dismissal in 1995 of 17 trade union leaders from the Union Djiboutienne du Travail (UDT) and the Union Générale des Travailleurs de Djibouti (UGTD) as a reprisal for their legitimate trade union activities in opposition to structural adjustment measures, any type of trade union action in the country is systematically repressed. It should be recalled that in 1998 the ILO Committee on Freedom of Association had issued a recommendation that these trade union representatives be reinstated. In spite of the many pledges made to international organisations and the agreements formalised in writing on 8 July 2002 in the presence of an ILO representative, they have still not been reinstated. The government makes every effort to impede any form of independent trade union activity. Trade unionists are subjected to constant harassment, such as the unfair dismissal of their representatives, and protests are met with police brutality. The Government continues to ignore the repeated calls for dialogue and conciliation and invariably reneges on its promises to implement the ILO recommendations on respect for trade union rights and the reinstatement of the trade union representatives unfairly dismissed in The government continues to actively support unrepresentative trade unions. There have been instances in which the government has encouraged the creation of new, fake trade unions in a bid to undermine the free trade unions. These bogus organisations are set up by the government in order to usurp the roles and posts of the legal and legitimate trade union representatives. For several years, the government has, thus, itself been appointing the workers representatives to attend the International Labour Conference of the ILO, which is held each year during the month of June. In 2004, the management of the port of Djibouti obstructed the holding of elections of staff delegates by the port workers' union, the SPP (Syndicat du Personnel du Port) the most representative union in the port. It also criticised the system for payment of union fees, despite its approval by the 800 workers belonging to the union. In September 2005, the UTP port workers union, a UDT affiliate, convened a strike in protest at the systematic violations of labour laws and the management s refusal to enter into social

5 5 dialogue, in spite of the calls to order and recommendations of the competent national authorities. The port of Djibouti is often referred to as a lawless zone governed by arbitrary rules, particularly in the case of work-related matters. Following this strike, 12 members of the UTP were unfairly dismissed for hindering the right to work. A second strike was called to protest against these dismissals, giving rise to the detention of 156 strikers for several days. Although the strikers were released, 36 of them, all trade union leaders, were dismissed, and have still not been reinstated to their posts. Another 120 strikers received a final warning from their employer. On 2 October 2005, the magistrates court recognised, in the first instance, the legality of the initial strike and lifted all the charges against the 12 members of the UTP. On 3 October, the Attorney General appealed against the ruling. The lawyer hired by the UTP then informed the union that he could no longer defend the case. Rumours suggest that the government had ordered the conviction of the 12 trade unionists. On 4 January 2006, the court of appeal overturned the initial ruling and gave 3 trade unionists a suspended sentence of two-months imprisonment and 8 others a one-month suspended sentence. The trade unionists immediately lodged an appeal. In August 2005, the UDT noticed that its correspondence was being lost in the national mail, and that some documents had been forged. Among the letters intercepted was a complaint that the UDT had mailed to the ILO concerning the mass dismissals of the trade union representatives and activists from the port. In 2004, the UDT came to know that four forged letters bearing 4 different signatures had been sent to the ILO in its name. During the course of 2005, the national printing directorate forbid trade union elections within the national print works. The prohibition was endorsed by the administrative authorities. The General Secretary of the printers union has since been threatened with dismissal, in a bid to prevent the renewal of the trade union leadership s mandate. The union believes that the directorate s decision was prompted by the employee s demands for the creation of a health and safety programme and committee within the company, to protect the workers when handling toxic chemical products. The management categorically rejected this trade union proposal on several occasions. In September 2005, a strike held by bus, minibus and truck drivers was brutally repressed. Dozens of drivers were arrested, beaten and imprisoned for several days. The police used extreme force to bring an end to the demonstration held in response to this repression, firing real bullets, killing a young trade unionists aged 20 and injuring several others. To dissuade the UDT from organising May Day celebrations, almost all the agents of the intelligence services and an astounding number of police officers were posted in front of the UDT s offices. Furthermore, during the month of Ramadan 2005, the leaders of the ruling party were incessant in their attacks on the UDT and its general secretary, Adan Mohamed Aboud, accusing him of being responsible for all the social and trade union protests, etc. and of being a criminal on the payroll of Israel, on the basis that two UDT executives taken part in courses organised by the training institute of Histadrut, the Israeli labour confederation affiliated to the ICFTU. Hassan Cher Hared, the UDT s international relations secretary and the general secretary of the Djibouti postal workers union, SPD, has been the victim of repeated acts of harassment over the last six years. In May 2005, he was suspended from work for eight days and was dismissed on grounds of his trade union activities before the 8-day suspension had even come to an end. Confronted with the court s refusal to rule on this case, and thanks to international pressure, he was reinstated in October His reinstatement, however, was only partial, and he remains, to this day, deprived of the entitlements due to him such as the housing allowance and responsibility bonus.

6 6 Conclusion The government seriously restricts trade union rights, both in law and in practice. The Government ignores the repeated calls for dialogue and conciliation and invariably reneges on its promises to implement the ILO s recommendations on trade union rights and freedom of association. Trade unionists are subjected to constant harassment, such as the unfair dismissal of their representatives, and protests are met with police brutality. Not only are unfairly dismissed trade union representatives not reinstated to their original posts, but they are also prevented from working both in the public and private sectors. II. Discrimination and equal remuneration In 1978, Djibouti ratified ILO Convention 100 (1951) on Equal Remuneration and, in 2005, Convention 111 (1958) on Discrimination (Employment and Occupation). The ILO Committee of Experts on the Application of Conventions and Recommendations has repeatedly called on the government to provide it with information on how it is applying the principle of equal pay for work of equal value, particularly in the public sector. No response has been received from the government to date. In 1997, the law on the minimum wage was repealed The ILO Committee of Experts, pointing out that the minimum wage is an essential means of ensuring the application of the aforementioned Convention, and that legal provisions play a decisive role in ensuring equality when wages are set by means of collective or other types of agreements, has, for many years, been asking the government to identify how it is ensuring the application of the Convention under this new wage fixing system. It has received no response from the government. In 1999, a ministry for the promotion of women, family welfare and social affairs was created. To this day, however, no information is available regarding the initiatives taken by the ministry to ensure equal pay for men and women for work of equal value. According to the statistic published in January 2000 by the National Department of Employment, women represented 25.16% of the total number of job seekers in This information is not, however, complete, and does not provide a suitable basis for evaluating the nature, extent and causes of the discrimination faced by women on the labour market. According to the UNDP, the unemployment rate among men was estimated at 56% in 2004, whilst unemployment among women was 70%. NGOs based in the country report that women generally work in the informal economy. The few women managing to find employment in the formal economy occupy the jobs on the bottom rung of the ladder. Custom prevails and women continue hold a lower rank in society and be deprived of the same opportunities as men in terms of access to employment. In 2000, schooling was declared compulsory until age 16 for boys and girls. The illiteracy rate is 62% among young women aged between 15 and 24, and 38% among young men. This gender gap is largely owed to the fact that parents generally prefer to send their boys to school. The problem is declining in urban areas, but remains deeply rooted in the more remote regions.

7 7 A recently passed law has provided for the establishment of quotas in the National Assembly and the Administration. As a result, in the general elections of January 2003, 10% of the representatives from each political party were women. Djibouti s National Assembly now has 7 female members of parliament out of a total of 65. The government continues to discriminate against citizens based on their ethnic origin in the areas of employment and career prospects. The Issa Somalis thus dominate the ruling party, the civil services, the military and security forces. The existence of discrimination based on ethnic origin seriously curtails the role of minority groups in the government and political life in general. Conclusion The absence of reliable statistical data concerning men and women makes it difficult to determine the scope of gender discrimination. The abolition of the minimum wage legislation is regrettable, given that it is often an effective way of ensuring equal pay for work of equal value. Custom prevails and women thus hold a lower rank in society and do not enjoy the same opportunities as men in terms of access to schooling and employment. III. Child labour In 2005 Djibouti ratified ILO Convention 138 (1973), the Minimum Age Convention and Convention 182 (1999) on the Worst Forms of Child Labour. The Labour Code sets the minimum age for access to employment at 14. When the new Labour Code takes effect, however, the minimum age will be 16. Night work is forbidden for children under the age of 16. Although education is free and compulsory, the associated costs, such as transport or school materials, represent a real obstacle to the schooling of many children. According to UNICEF, the rate of primary school attendance for the period was 40% for boys and 32% for girls. Schools are insufficient in number and often in an appalling state of repair. The government makes no effort to ensure respect for the laws and regulations on education. As a rule, the law is not enforced and no specific administrative mechanism has been set up to investigate any breaches of the legislation on child labour. Labour inspectors are supposed to report any violations they may witness, but not a single case related to the breach of child labour legislation has ever been brought before the courts. There are no statistics on the number of under-fifteens who work. According to the NGOs working in this area, a considerable number of children work in the informal sector. The situation of the refugee or displaced children coming from Ethiopia, Eritrea and Somalia to seek work in the towns of Djibouti is very worrying. The young girls often end up working as prostitutes. In general terms, the government makes insufficient efforts to ensure children s welfare and respect for their rights.

8 8 Conclusion Reliable data on the number and characteristics of the children working in Djibouti is lacking. There are no mechanisms to ensure that the legislation related to child labour is respected. In general terms, the government makes insufficient efforts to ensure children s welfare and respect for their rights. IV. Forced labour In 1978 Djibouti ratified ILO Convention 29 (1930) on forced labour and Convention 105 (1957) on the abolition of forced labour. For over 15 years, the ILO Committee of Experts on the Application of Conventions and Recommendations has been referring to Articles 23 and 24 of Law 144/AN/80 related to the Penitentiary Code, which stipulate that prisoners work shall be organised by the penitentiary administration and that although prisoners may be employed by public or private enterprises, work for private enterprises shall not, however, be carried out inside the prison premises. The Committee had drawn the government s attention to the fact that the Convention expressly stipulates that persons from whom work is exacted as a result of a court conviction shall not be hired to or placed at the disposal of private individuals, companies or associations. Only work performed in the context of a free employment relationship is considered exempt from this prohibition, which necessarily requires the formal consent of the interested party. Furthermore, given the circumstances surrounding such consent, certain guarantees and benefits regarding remuneration must be provided, in order for the employment relationship to be considered genuinely free. To date, the government has still not furnished the Committee with information regarding prisoners employment contracts nor detail regarding their working conditions. The ILO Committee of Experts has pointed to inconsistencies between national legislation and Convention 29 as regards the freedom of public servants to leave their jobs. For many years, the Committee has been asking the government to provide more detailed information on the measures being taken to abolish forced labour with regard to the following points: i) Article 8 of Decree /PR/DEF, concerning the special status of doctors and chemical pharmacists, who have to serve in the army for a period of 15 years; ii) Article 109 of Law 72/AN/94/3eL, on the status of the national police force, and article 50 of Law no 48/AN/83/1re on the general status of civil servants, which stipulates that any resignation requires formal acceptance; iii) the practice whereby professional soldiers must submit a request to the Supreme Military Council if they want to end their career, in cases such as those whose studies were funded by the armed forces. The government has been claiming since 1999 that the first two points will be examined in light of the Convention, within the framework of a legislative and regulatory review of labour standards that the government intends to undertake as soon as the conditions for organising tripartite national consultations are met. The government has taken no measures in this respect to date.

9 9 The ILO Committee of Experts has been urging the government for several years to provide it with information on the practical application of the provisions of Law 1/AN/92/2eL of 15 September 1992 concerning political parties. By virtue of Article 19 thereof, anyone who, in breach of this law, founds, heads or administers a political party of any form or denomination will incur a prison sentence and a fine. At the same time, the Committee also noted that the provisions of Articles 23 and 34 of Law 144/AN/80 of 16 September 1980 on the Penitentiary Code do not expressly indicate whether prison work is compulsory or not. Consequently, the Committee urged the government to indicate whether measures have been taken to ensure that the application of Article 19 of the Law of 15 September 1992 does not result in the use of forced prison labour as punishment for political activities. No response has been received from the government to date. Conclusion There are several key elements of national legislation that do not appear to comply with the ILO standards on forced labour. In spite of the many and repeated requests of the ILO Committee of Experts on the Application of Conventions and Recommendations, the government has still not provided the information required to carry out a more thorough analysis of the legislation and practices regarding forced labour.

10 10 FINAL CONCLUSIONS AND RECOMMENDATIONS 1. Although Djibouti has ratified all the ILO Conventions related to core labour standards, serious difficulties associated with the application of workers rights remain both in law and in practice. 2. The Government should enforce the provisions laid down in the Labour Code of 1952 and make every effort to implement the ILO recommendations on freedom of association and trade union rights, which would appear to require the suspension of the new Labour Code. More specifically, the government should guarantee the workers right to freely and democratically elect their representatives at all levels provided for by law and international Conventions. It should, consequently, carry out a comprehensive review of the new Labour Code with its social partners. Not only does this Labour Code constitute a clear regression relative to the previous Code of 1952, but its key provisions neither abide by the spirit nor the letter of the core international Conventions of the ILO. In some instances, moreover, they violate the legal rights guaranteed by the national Constitution, which recognises trade union rights both in its preamble and Article 15 and subsequent Articles. 3. The government should endeavour to re-establish social dialogue and tripartite consultation in the country. 4. The government should repeal all legal provisions establishing the obligation to obtain prior authorisation to form a union. 5. The government should amend the legislation in force with a view to limiting the power of requisitioning to public servants exercising authority on behalf of the state and those furnishing essential services in the strict sense of the term. 6. The government must urgently reinstate the seventeen employees unfairly dismissed in 1995 and 1996, as well as the 34 port workers dismissed in The government must desist from appointing the workers representatives to attend the annual conferences of the ILO, as well as from supporting non-representative trade union organisations. It must, consequently, bring an end to the practice of creating new, bogus trade union structures, and unconditionally recognise the legal and legitimate trade union organisations. 8. The government must stop its brutal repression of strikes and demonstrations. 9. The government must enforce and ensure respect for labour laws at the International Port of Djibouti and cease its harassment of the unionised port workers. 10. The government must take the measures required for the application of the Conventions related to the fight against discrimination. The government must, in particular, endeavour to ensure respect for the principle of equal pay for work of equal value. 11. The government must not reserve certain posts within the state administration to a single ethnic group. 12. The government must enforce the law on children s education, both for boys and girls, as well as the law concerning child labour.

11 The government must set up a system of reliable statistics that includes differentiation by gender, age and ethic origin. 14. The government must provide the ILO with the details and information required on the national legislation concerning forced labour. 15. In line with the commitments accepted by Djibouti at the Singapore and Doha WTO Ministerial Conferences and its obligations as a member of the ILO, the Government of Djibouti should provide regular reports to the WTO and the ILO on its legislative reforms and implementation of all the core labour standards. 16. The WTO should draw the attention of the authorities of Djibouti to the commitments they undertook to observe core labour standards at the Singapore and Doha Ministerial Conferences. The WTO should request that the ILO intensify its work with the Government of Djibouti in these areas and provide a report to the WTO General Council on the occasion of the next trade policy review. References - World Bank, World Development Report, International Confederation of Free Trade Unions (ICFTU), Annual Survey of the Violations of Trade Union Rights, US Department of State, Report on Human Rights Practises for Education International (EI), Barometer of Human and Trade Union Rights in the Education Sector, Human Rights Watch, Country Report, ILO, Reports of the ILO Committee of Experts on the Application of Conventions and Recommendations, United Nations Development Programme (UNDP), Human Development Report, Union Djiboutienne du Travail, several reports, UNICEF, several reports and profiles,