Freedom of association / Right to organise
Freedom of association
The right to freedom of association is enshrined in the Constitution.
The right to freedom of association is recognised by law but strictly regulated.
Anti-Union discrimination
The law prohibits anti-union discrimination, but does not provide adequate means of protection against it.
Barriers to the establishment of organisations
- Prior authorisation or approval by authorities required for the establishment of a union
- The legal existence of unions is subject to the deposit of their statutes, and a list specifying the names, nationality, profession, domicile and quality of the members responsible for their management or their administration, with the following authorities: the court of first instance, the Department of the Interior, the Ministry of Labour, and the local administrative authority (section 83, Labour Act).
Restrictions on workers’ right to form and join organisations of their own choosing
- Single trade union system imposed by law and/or a system banning or limiting organising at a certain level (enterprise, industry and/or sector, regional and/or territorial, national)
- Article 3 of Decree No. 2006-132 of 29 March 2006 on defining the different forms of trade unions and the criteria of representativity establishes the enterprise-level trade union as the primary form of worker organisation. These must be limited to a single enterprise, service or corporation.
Restrictions on trade unions’ right to organise their administration
- Restrictions on the right to freely draw up their constitutions and rules
- A trade union's freedom to draw up its statutes and operating rules is subject to the requirement that it focus exclusively on the study and advocacy of the collective and individual rights, as well as the material and moral interests, of the people and professions covered by their statutes (sections 80 and 81, Labour Code).
- Power to refuse official registration on arbitrary, unjustified or ambiguous grounds
- The Labour Code does not establish clear grounds on which registration may be exercised.
- Restrictions on the right to elect representatives and self-administer in full freedom
- Members responsible, in any capacity, management or organisation of a union must be of Beninese nationality or migrant workers lawfully established on the national territory and enjoying their civil rights (section 82, Labour Code).
- Restrictions on the right to freely organise activities and formulate programmes
- A trade union's freedom to organise its activities is subject to the requirement that it focus exclusively on the study and advocacy of the collective and individual rights, as well as the material and moral interests, of the people and professions covered by their statutes (sections 80 and 81, Labour Code). Also, a trade union must notify the authorities of the duration of a strike (Act No. 2001-09 of 21 June 2002 on exercise of the right to strike).
Categories of workers prohibited or limited from forming or joining a union, or from holding a union office
- Other civil servants and public employees
- Persons named in the permanent employment of a public administration are excluded from the scope of application of the Labour Code (section 2, Labour Code).
- Absence of recourse to an independent body in the event of administrative refusal to register a trade union
- The Labour Code does not establish recourse to an independent body in cases where registration has been refused.
- Sanctions imposed for organising or joining an organisation not officially recognised
- Fines of between 3,500 and 35,000 FCFA (and between 7,000 and 70,000 FCFA in the case of repeated contravention) are imposed for a failure to comply with section 83 of the Labour Code within three months of the trade union's formation.
- Restrictions on trade unions’ right to establish branches, federation and confederation or to affiliate with national and international organisations
- Article 3 of Decree No. 2006-132 of 29 March 2006 on defining the different forms of trade unions and the criteria of representativity restricts the freedom of trade unions to establish branches, federations and confederations. Specifically, it provides that a trade union federation must be constituted by no less than five base (i.e., enterprise-level) trade unions in the same sector or branch of activity. It further requires a trade union confederation to be constituted by no less than three trade union federations of different sectors or branches of activities. Article 4 of the Decree then provides that only trade union confederations may affiliate at a national or international level.
- Others categories
- Act No. 2010–11 issuing the Maritime Code of the Republic of Benin only affords seafarers limited trade union rights, specifically in relation to representation within the framework of collective bargaining (section 224, Maritime Code). However, it does not grant seafarers the right to organise, the right to strike or other aspects of freedom of association. Also, only persons aged over 15 years are permitted to join trade unions (section 79, Labour Code).
Right to collective bargaining
Right to collective bargaining
The right to collective bargaining is recognised by law but strictly regulated.
Barriers to the recognition of collective bargaining agents
- Previous authorisation or approval by authorities required to bargain collectively
- While there is no express statement of the requirement of previous authorisation, the Minister's role in determining the representative trade unions at the enterprise level, and the labour inspector's role in presiding over the negotiating commission at a sectoral level, establish a de facto authorisation process.
- Excessive requirements in respect to trade unions’ representativity or minimum number of members required to bargaining collectively
- Article 6 of Decree No. 2006-132 of 29 March 2006 on defining the different forms of trade unions and the criteria of representativity provides that in order to be representative, the enterprise level union must obtain at least 40 per cent of the votes cast at the staff elections.
Limitations or ban on collective bargaining in certain sectors
- Other civil servants and public employees
- Persons named in the permanent employment of a public administration are excluded from the scope of application of the Labour Code (section 2, Labour Code).
Restrictions on the principle of free and voluntary bargaining
- Compulsory conciliation and / or binding arbitration procedure in the event of disputes during collective bargaining, other than in essential services
- All collective disputes must be referred to the relevant authorities in accordance with Chapter 3 of Part VI of the Labour Code. The authorities (either the labour inspector, for local disputes, or the Director of Labour, for interregional disputes) must, in turn, seek to conciliate the dispute and, if not resolved at conciliation, refer the dispute for arbitration. Where a party does not oppose an arbitration award within four days, the decision will be binding on the parties (sections 253, 254 and 260, Labour Code).
- Authorities’ power to intervene in the preparation of collective agreements
- A collective agreement shall be negotiated by a commission, which shall be presided over by a labour inspector, who shall lead discussions and facilitate negotiations (section 122, Labour Code).
- Absence of recourse to an independent body responsible for declaring whether an organisation may negotiate or not
- No recourse to an independent body is established in relation to declarations made by the Minister regarding trade union representativeness.
- Authorities’ or employers’ power to unilaterally annul, modify or extend content and scope of collective agreements
- The Minister may, at the request of one of the representative organisations or at his or her own initiative and following the opinion of the national council of labour, extend a collective agreement so that it is binding on all the employers and workers in its scope of application (section 128, Labour Code).
Right to strike
Right to strike
The right to strike is enshrined in the Constitution.
The right to strike is recognised by law but strictly regulated.
Barriers to lawful strike actions
- Previous authorisation or approval by authorities required to hold a lawful strike
- Strike action may only be taken if the settlement procedures before the labour inspector or Director of Labour have failed. This failure must be recorded by the labour inspector or Director of Labour in his or her minutes, and signed by the parties (section 264, Labour Code).
Limitations or ban on strikes in certain sectors
- Discretionary determination or excessively long list of "essential services" in which the right to strike is prohibited or severely restricted
- Article 14 of the Act No. 2001-09 of 21 June 2002 on exercise of the right to strike provides that essential services are those relevant to health, safety, energy, water, air transports and telecommunications (with the exception of private radios and televisions).
Undue interference by authorities or employers during the course of a strike
- Forcible requisitioning of workers strikers (apart from cases in public essential services)
- Where workers who are required to provide a minimum service in accordance with Part IV of Act No. 2001-09 of 21 June 2002 on exercise of the right to strike fail to so provide a minimum service, the authorities may requisition up to 20 per cent of the service by the relevant procedures (art. 15). This applies to public, semi-public and to private establishments relevant to essential services (art. 13).It may also apply to public, semi-public or private organisations of a strategic character (art 17).
- Absence of compensatory guarantees for categories of workers deprived of the right to strike
- Discretionary determination or excessively long list of "services of public utility" in which a minimum operational service is can be imposed in the event of strikes
- Part IV of Act No. 2001-09 of 21 June 2002 on exercise of the right to strike requires that a minimum service be established in public or semi-public establishments, and private establishments relevant to essential services, with respect of any strike which may gravely prejudice the safety or health of the population (art. 13).
- Compulsory recourse to arbitration, or to long and complex conciliation and mediation procedures prior to strike actions
- All collective disputes must be referred to the relevant authorities in accordance with Chapter 3 of Part VI of the Labour Code. The authorities (either the labour inspector, for local disputes, or the Director of Labour, for interregional disputes) must, in turn, seek to conciliate the dispute and, if not resolved, refer the matter for arbitration (sections 253, 254 and 260, Labour Code). There are no time limits imposed on these proceedings. A strike may not be declared while the dispute is before the inspector or Director of Labour (section 264, Labour Code).
- Other undue, unreasonable or unjustified prerequisites
- A trade union must notify the authorities of the duration of a strike (Art. 8, Act No. 2001-09 of 21 June 2002 on exercise of the right to strike).