The rigours of the economic crisis are not the sole explanation for the refusal to tackle the issues raised by trade union organizations

Sette Dieng
National secretary for trade union education and training
National Union of Autonomous Trade Unions
of Senegal (UNSAS)

As far as trade unions and workers are concerned, the ILO Right to Organise and Collective Bargaining Convention, 1949 (No.98), ratified in 1961 by the Government of Senegal shortly after independence, is still closely bound up with the ILO Freedom of Association and Protection of the Right to Organise Convention, 1948 (No.87). Indeed, these two international labour standards are inextricably linked: the existence of workers' organizations would be inconceivable without free dom of association from which flows the right to organize and the protection generally afforded it by the national Constitution. When we compare the interaction of the two component principles of each of these conventions, it may also be asserted that without recognition of the right to organize, free and voluntary collective bargaining would be out of the question.

Post-independence loss of momentum

Although thanks to the dynamism and pugnacity of the trade union organizations in Senegal it had been possible some years before independence to draw up and implement a good many collective labour agreements that still govern all occupational areas of national economic life to this day, it must be admitted that collective bargaining soon lost momentum under the combined effect of a centripetal trend towards a worker representation monopoly, up to 1976 at any rate, and other structural adjustment programmes that have seriously depleted trade union ranks and curtailed the government's room for manoeuvre.

Review of the Labour Code

The result is that Senegal, like the other countries in the sub-region, is experiencing what might be called a "delayed adjustment", a process compounded by highly draconian conditionalities and policies of unbridled liberalization, with the consequence that the social laws and specifically the Labour Code are being revised to grant workers even less protection. As the basis of industrial relations, collective bargaining in Senegal today is reduced to a minimum, giving rise to such an impoverish ment of labour conditions that inevitably results in industrial disputes and setbacks, as illustrated in 1998 by the acrimonious dispute between the Government and the Single Union of Electricity Workers (Syndicat Unique des travailleurs de l'electricite), whose leaders were either imprisoned or persecuted and dismissed from their jobs for challenging the ill-judged privatization of the electricity sub-sector.

Restoring the primacy of the social dimension

Now that the economic crisis is universally recognized as a structural one with worldwide ramifications that are restricting the room for manoeuvre of the partners in the social dia logue (governments, employers, workers), it is necessary to recognize the imperative of restoring central importance to the social dimension as the aim of work and the resulting production of wealth and values. Besides, this is the sense that must be given to the application of inter national labour standards and in particular ILO Convention No.98, which enshrines the freedom of association of workers and the need to promote social dialogue through collective bargaining.

Experience and practice of collective bargaining

After bitter struggles by the trade unions in African countries under French colonial domination, the passing of the Overseas Labour Code (Code du travail d'outre-mer) (on 15 December 1952) led to the negotiation of the major collective labour agreements, some of which still govern industrial relations to this day in the specific case of Senegal (see Table 1). Until then, the French decree of 20 March1937 applicable to the overseas territories had instituted joint employer-worker committees and authorized the conclusion of collective agreements in the industrial, commercial and transport sectors, though excluding agricultural and mining workers. But reverting to the period following the implementation of the Overseas Labour Code, it can hardly be denied that the Senegalese Labour Code Act of 15 June 1961 (loi portant code senegalais du travail) merely reproduced the bargaining forums established prior to independence. Thirty-six collective agreements and their supplementing regulations date from this period of prolific drafting of social protection and collective bargaining instruments.

An inappropriate legislative framework

It was the pluralism then prevailing and the strength of workers' organizations spurred by the independence struggles that lay at the root of this proliferation of regulatory instruments that for a long time constituted the framework of the laws and regulations governing industrial relations. As we shall see later, the inappropriateness of this regulatory framework seriously undermined the collective bargaining mechanisms, which were also affected by the tendency towards a representational monopoly inherited from the period of one-party rule, hence the astutely maintained obstruction of the instruments of social dialogue all too often seized upon by the employers and government as a prelude to anti-union repression and economic reverses.

Consultation forums

The fact is that even today, workers' organizations are able to score collective bargaining successes only at the cost of protracted struggles and social tensions.

The main consultation forums are the fol lowing:

• The Economic and Social Council (Conseil economique et social) set up in 1963. It must be consulted on all major economic and social questions and issues an opinion not binding on the Government. Trade union organiza tions are indeed represented on the Council but would derive greater benefit from it if the latter took up the matters being discussed in the society as a whole and examined the tragic social ramifications of the economic policies born of structural adjustment programmes. Should the Economic and Social Council perform a watchdog and early warning function in respect of economic and social matters, it could become a key player in policy determination and choices, but despite the presence of workers' representatives, this has not materialized.

• The National Advisory Council on Labour and Social Security (Conseil consultatif national du travail et de Ia securite sociale) (CCNTSS) instituted in Article L 205 of the Labour Code and organized by Decree-Law (decret-loi) No. 61.452 of 29 November 1961.Its purpose is to study labour and social security problems. In theory, its opinion must be sought on all draft labour and social security laws. The Advisory Council is a tri partite body and must also be consulted concerning the extension of collective agreements and on occupational health and safety. It also fulfils another important function. In the event of legislative or regulatory inadequacies, the CCNTSS may formulate and submit proposals to the minister responsible for labour questions. It may also conduct surveys as needed and enlist the services of the labour administration to obtain any information that it may deem useful for carrying out its work. The operating methods and efficacy of the CCNTSS are substandard, despite its potentially meaningful role in solving labour and social security problems.

• The National Technical Health and Safety Committee (Comite technique national d'hygiene et de securite), a tripartite body. This body was created by Article 210 of the Labour Code and organized by Decree-Law (decret-loi) No.69.137 of 12 February 1969. It must be consulted on all occupational health and safety matters. The enactment of Decree No.94.244 on occupational health and safety committees might have made the National Committee more efficient. The SONACOS accident (explosion of a tanker laden with ammonia inside an oil works) on 24 March1992 that claimed 200 lives and left countless persons disabled for life could have brought safety issues back to the fore, but nothing came of that. To date, the victims and their claimants have neither seen a published report of inquiry nor managed to bring any criminal or civil action.

We have given an example of a collective bargaining structure that is inefficient and in- capable of fulfilling its original purpose.

It would seem that enterprise-level collective bargaining ought to have taken on an increasingly important role. Indeed, the legitimacy of the shop steward (male or female) as a worker representative cannot be placed in doubt nor can his familiarity with the problems of the enterprise. Because Senegalese law has not yet recognized the existence of trade union sections in enterprises, the shop steward almost invariably appears on the list submitted by trade unions and acts as the representative of the workers who elected him and of the union of which he is a member. The shop steward may enlist the help of a representative of his union (this is only tolerated but not expressly pre scribed by the law) and is legally entitled to engage in collective bargaining (working conditions, wages, health and safety, etc.), for his actions are binding on his colleagues and constituents, the workers. Shop stewards are instrumental in the conclusion of enterprise- level labour agreements mostly in big enterprises. This fundamental role of shop stewards could conceivably face the following very serious constraints:

• the degree of effectiveness of the collective agreements;

• the level of training of shop stewards (in trade unionism as well as in economics and management);

• those placed on the bargaining freedom and capacity of shop stewards by pressures that employers can exert in a field of action lim ited to the enterprise.

A safety valve

The National Committee for Dialogue (Comite national de concertation) (CNC) is not envisaged under the labour law. It plays a "political" role. Organized pursuant to Decree-Law (decret-loii) No.75.114 of 23 January 1975, the CNC brings together government, employ ers and workers and aims to promote dialogue among the social partners on wage, price and employment policies. Created in 1975 at the very onset of the crisis of the groundnut industry - which was to spread to many other sec tors of the national economy - the CNC was in fact a "talking shop" where neither decisions nor commitments were made. With respect to the collective bargaining agenda, this Commit tee is perceived by trade unions as a "safety valve", a means of defusing the social bomb and a place where trade unionists can give vent to their feelings.

The labour administration has a range of functions in industrial relations: hiring, concil iation, monitoring the observance of the labour law and regulations, drafting and determining the general labour and social security policy and dispute settlement. It lacks the material wherewithal for fulfilling its mission.

Worker representation in provident institutions

This representation takes place at the Board of Director level though most workers' organizations are dissatisfied with the proportion of that representation. Many of these bodies consider the representation of workers' organizations to be partial and arbitrary. Besides, it has made no significant impact in terms of improving retirement pensions or other social security benefits (e.g. family allowances or coverage of occupational accidents). Yet the decision-making bodies of these institutions might have played a pivotal role in putting in place a more equitable system of income redistribution.

Joint employer-worker committees

These are convened on a random basis in the private sector to sign wage increase agreements (under the auspices of the Ministry of Labour). However, these agreements can only be extended to general application by administrative orders issued by the labour administration. These committees are often convened under pressure from the trade unions, as for example following the devaluation of the CFA franc in January 1994. There is no legally prescribed frequency for their meetings.

The civil service: A special status

The principal collective bargaining mechanisms for civil servants are the following:

•  Joint administrative committees (Commissions administratives paritaires) (CAP)

The committees are elected for three years and are responsible for the promotion and reclassification of the workers concerned. As things stand in the civil service, the CAP man dates have now expired and no new elections have been held. Instead, the Government has replaced them defacto with ad hoc committees, over the objections of the trade unions in the health and education sectors, which consider themselves to be prejudiced by the deficiencies of the administration.

• Higher Civil Service Council (Conseil superieur de la fonction publique) (CSFP)

This Council was organized under Law 61.33 of 15 January1969. Worker representation in it bas not kept pace with changes in the trade union landscape as only one worker organiza tion is represented, while the most representative public service confederation, the National Union of Autonomous Trade Unions of Senegal (Union nationale des syndicats autonomes du Senegal) (UNSAS), and trade union, the All-Senegal Democratic Trade Union (Syndicat unique et democratique de Senegal) (SUDES), are absent. The CSFP is also an advisory body.

These bodies continue to meet and function on a random basis, as their make-up is still discretionary and out of step with the changed situation of trade union independence and autonomy.

A foothold in the education and health sectors

It is worth noting that public servants in the general administration, often non-unionized (except for some drivers whose demands are more corporatist in nature), have been given a special status under Decree-Law No.77.880 of 10 October 1977. Subject as they are to considerable political pressures, their situation still does not favour unionization. To date, attempts to organize these workers have been fruitless. The Independent Trade Union of Workers in the Judiciary - Syndicat autonome des travailleurs de la justice (SATJUS) - and the Independent Trade Union of Administrative Workers of Senegal - Syndicat autonome des travailleurs de l'administration du Senegal (SYNATAS) - have not withstood the pressures and these workers have been left without trade union representation, their plight being compounded by the failure of the Government of Senegal to ratify the ILO Labour Relations (Public Service) Convention, 1978 (No. 151), to date. It is mainly in the education and health sectors that workers' organizations have managed to gain a permanent foothold, after signal struggles for pluralism and collective bargaining.

Collective bargaining trends

Trends in collective bargaining in Senegal do not differ from those observed in other African countries undergoing structural adjustment. These include:

• the watering down of formal collective bar gaining procedures under the constraints stemming from weak economic growth and from the conditionalities of international funding agencies;

• the weakening of the institutional structure, whose component elements (the laws / regulations) become dysfunctional if employers (including the Government) are unwilling to negotiate in good faith; and

• the shifting of the bargaining location to the enterprise when it comes to more specialized subjects in order to neutralize trade union action and pit the trade unions against unequal forces.

Dialogue for selective purposes

In Senegal the phase of adjustment that started in 1978 and is continuing with even more stringent structural adjustment and unrestrained deregulation has meant less hiring and stagnating wages and a consequent sharp con traction in the spending power of workers. Persisting in their distrust of workers' organizations, the Government and employers have made selective use of the mechanisms of dialogue to push through amendments to the Labour Code (such as those affecting the time frames of indefinite contracts, economic redundancies, or tidying up the Labour Code) while giving their dialogue partners the impression of bargaining in good faith. The lack of concessions, however, often leads to deadlock.

The corpus of laws in doubt

There is undoubtedly a breakdown in the social dialogue and in collective bargaining in Senegal and it is clear that however harsh they may be, the rigours of the economic crisis alone cannot explain the refusal of the Government and employers to contemplate an in-depth examination of the problems tabled by the trade union bodies to avert social conflict and reverses that could seriously jeopardize the commitments assumed by the country.

There are other trends that raise searching questions about the application and interpretation of the corpus of Senegal's labour laws and regulations: these are related to the process of adapting and ensuring the consistency of texts with the successive bodies of regulations adopted from the colonial era to the present day. Like other spheres of activity of workers' organizations, collective bargaining too is dependent on this.

Outlook

Like 50 years ago when ILO Convention No.98 was adopted, the present-day economic and social climate underscores the relevance of collective bargaining and the right to organize.

Aside from the aspect of equity that is part and parcel of industrial relations in an environment so unfavorable to workers and their organizations, collective bargaining in a country such as Senegal should also be addressing another value, described by Professor Antoine Lyon-Caen ¹ as social citizenship.. alive to the demands of solidarity.

Therefore, Senegal's workers' organizations should continue their endeavours so that:

• collective bargaining can help to ensure the exercise of the fundamental rights of the person;

• collective bargaining can contribute to deal ing with the problem of employment and the equal right of all to a decent standard of living;

• job access and security can be strengthened and employment safeguarded as an element of social status and cohesion;

• the legal capacity of collective bargaining agents will be strengthened adequately to reflect their power of representation and the legitimacy of their labour demands.

This is the direction in which independent trade union bodies are channelling their efforts in Senegal today so that the different levels of collective bargaining - industry, inter-professional or enterprise - can become part of a national endeavour to bargain with the Government and employers for certain minimum benefits.

While the crisis of legitimacy and of representation is of concern both to workers' organizations and to other social players, there is no doubt that the brief of collective bargaining agents will depend on the effectiveness of ILO Convention No.98.

Note

¹ See "La negociation collective: Nouveaux horizons? Nouveaux problemes?" in Droit social (Paris), Special issue, No. 2, Dec. 1997.