Bobo – Dioulasso Appeal Court, Social Chamber, Messrs. Karama and Bakouan v. Société Industrielle du Faso (SIFA), 5 July 2006, No. 035
Constitution of Burkina Faso
Treaties or agreements which have been duly ratified or adopted shall upon their publication have a higher authority than the laws, provided that each agreement or treaty is applied by the other party.
Right to strike
Use of international law as a guide for interpreting domestic law
General strike/ Legality of the strike/ Reference to ILO Convention No. 87/ Use of international law as a guide for interpreting domestic law
On the initiative of several trade-unions in Burkina Faso, notice of a nationwide 48-hour strike by workers in the public and private sectors was given to the Head of State and the Director General of Employment, Labour and Social Security. Although their employer had been notified, two private-sector workers were dismissed for taking part in this strike.
When the Bobo-Dioulasso Labour Court ruled that these dismissals were legitimate, the two workers took their case to the Appeal Court, arguing that the strike in the private sector was a solidarity strike, legitimized by the public-sector strike it was supporting. Their employer claimed on the contrary that that the provisions of the Labour Code prohibited any strike not arising within the enterprise itself and that, in this case, the strike, which was motivated by external factors, was illegal.
The Appeal Court, having noted that the strike was a general national strike involving all sectors and concerning a number of grievances relating to wages, taxation and workers’ rights, referred to ILO Convention No. 87. Explaining the basis for its reasoning, it pointed out, on the one hand, that:
“The principle of conformity of interpretation assumes that the legislator has not violated or does not intend to violate the spirit of the international treaties it has ratified”
And, on the other:
“That the judge is able to refer to the said international instruments and to experts’ comments in the event of contradictions, insufficiencies, loopholes or backwardness in relation to the progress advocated by the treaties”.
Applying these principles, the Appeal Court considered that the strike, which was a general strike based on professional and economic interests aiming to find solutions to issues of social policy, was legitimate and lawful in accordance with the statements of the Committee on Freedom of Association of the Governing Body of the ILO as expressed in its Digest of Decisions.3
The Court then ruled that, although the national legislator had not expressly provided a mechanism for initiating a strike in a case of this kind, the strike initiated in the private sector drew its legitimacy from the strike initiated in the public sector in conformity with national law. To support this analysis, the Court again referred to the statements of the Committee on Freedom of Association of the ILO’s Governing Body,4 pointing out that, in this case, no court or body independent of the Administration (an interested party in the strike) had been appealed to assess whether it was legal or not.
Interpreting the provisions of national law relating to strikes in the light of ILO Convention No. 87 and the Digest of Decisions of the Committee on Freedom of Association, the Appeal Court therefore ruled that the strike was legitimate and legal and declared that each of the appellants had been wrongfully dismissed.
3 ILO, Freedom of Association, Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO, Fourth revised edition, (Geneva, 1996), para. 494. In the updated version of that digest (fifth revised edition of 2006), see para. 543.