Definitive Report - Report No 19, 1956

Case No 133 (Netherlands) - Complaint date: 11-NOV-55 - Closed

A. A. The complainants' allegations

1. 108. The Committee had three complaints before it : one presented by the International Confederation of Free Trade Unions, dated 11 November 1955 ; a second presented by the United Mine Workers of America, dated 9 November 1955 ; and a third, presented by the Unitary Trade Union Centre (Amsterdam), dated 28 December 1955.
2. 109. The complaint of the I.C.F.T.U was submitted to the Governing Body under article 24 of the Constitution of the International Labour Organisation. The Governing Body transmitted it for examination to the Committee on Freedom of Association, which stated in its 18th Report (approved by the Governing Body at its 130th Session (Geneva, November 1955) that " the Committee is not in a position to make a report on the substance of the allegations made until the Government of the Netherlands, which is responsible for the international relations of the Netherlands Antilles, has had an opportunity of communicating its observations on these allegations ".
3. 110. The Government submitted its observations on the three complaints by letters dated 11, 13 and 17 February 1956. The Committee can therefore now proceed to examine the case.
4. 111. The complainants state that article 43 of the Statute of the Kingdom of the Netherlands provides for the application of fundamental human rights and freedoms in each of the constituent countries and requires the Kingdom to guarantee those rights, and that the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), has been ratified by the Netherlands and declared applicable to the Netherlands Antilles. They allege that grave breaches of the provisions of this Convention have occurred and that in the autumn of 1955 " there was an attitude of intimidation " such that trade union activity " had been severely disrupted and union members and officers were afraid to carry on their normal trade union activities ". The complainants make the following specific allegations:
5. (1) Several officers of the American Regional Organisation of Workers (O.R.I.T), the International Federation of Petroleum Workers, etc. - organisations which had succeeded in affiliating the workers' unions in the petroleum, mining and other industries - were prevented from addressing public trade union meetings and especially a meeting held on 2 August 1955 to celebrate the foundation of the Confederation of Workers of Curaçao. They were notified by the Chief of Police that anyone not a resident of the Netherlands Antilles was prohibited from speaking at this meeting, although there was no danger whatever of law and order being disturbed.
6. (2) The United Miners' Union of Curaçao had been formed during the first half of 1955, but was not recognised by the Curaçao Mining Company on the technical ground that its rules had not been approved by the Government. The negotiations conducted in the presence of a government mediator broke down, whereupon the Company discharged 20 workers and the Union decided that a strike would be necessary. The Government then called for a 30-day cooling-off period. During this period the rules of the Union were officially approved, but at its close the Company had not recognised the Union, which therefore called the strike on 15 October.
7. (3) On 18 October three members of the Union's executive were arrested by the police for suspected implication in a fire which had broken out on the Company's premises. After having been held incommunicado for four days, they were further detained for alleged violation of article 138bis of the Penal Code, which prohibits strikes involving violence, threat of violence or probable disruption of the domestic economy. The police tried to persuade union members to testify against their officers and took other measures of intimidation ; they arrested a number of union members at their homes, and asked strikers why they did not go back to work ; they closed the offices of the Workers' Confederation, confiscating a duplicating machine and the agenda books. On 27 October one of the detained persons was released, but the two others were sent to prison on the charge of starting the strike.
8. (4) The Company discharged 460 workers, out of a normal work force of 530, for taking part in this same strike. It was reported that after 14 days all foreigners among the strikers would be deported. According to press reports the authorities actually deported 264 strikers to the British West Indies ; a protest against this action was sent by the Unitary Trade Union Centre (Amsterdam) to the Netherlands Minister of Overseas Territories, but no reply was received. The deportation is described by one of the complainants not only as an act of repression against the striking workers but also as an act of colonialist repression contrary to the workers' democratic rights.
   • ANALYSIS OF THE REPLY
9. 112. In its reply the Netherlands Government states that, in order to judge the trade union situation in the Netherlands Antilles, it is important to remember that these countries have just passed through a period of exceptionally rapid industrialisation and that the existing legislation is no longer fully adapted to modern relations. Trade union life in the Antilles is still at an initial stage. The source of the difficulties which led to the complaints must be looked for in the circumstances mentioned above. The Government is in no way opposed to the development of the trade union movement, and sees nothing inconvenient in foreign trade union representatives speaking at meetings in so far as this is compatible with respect for the law and with public order.
10. 113. The Government then refers to the complaints concerning incidents during the mining workers' strike. It is true that three trade union officers were detained on suspicion of sharing in the responsibility for a fire. The arrests took place in accordance with the provisions of the Code of Penal Procedure. When it appeared that no proof of complicity in the fire was forthcoming, the prosecution and preventive detention had been based, without consulting the Government of the Antilles, on article 138bis of the Penal Code, which provides as follows:
    • Any person who, knowing or being in a position reasonably to assume that there will probably result a disturbance of public order through violence, threats of violence or a disorganisation of the economy of the Islands or of the country, incites or procures a number of other persons to fail or to refuse, in spite of an order legally given, to carry out work for which they are engaged or which they are bound to perform under their contracts of employment, shall be liable to a term of imprisonment not exceeding four years or to a fine not exceeding 1,000 florins.
    • If the act declared punishable in the preceding paragraph is committed by a body having legal personality, the proceedings will be brought against and the penalties imposed upon the directors of that body who are in the territory of the Netherlands Antilles, or, if there are no such persons, the representatives of the bodies having legal personality in the territory of the Netherlands Antilles.
    • The provisions of the preceding paragraph are applicable by analogy to any body having legal personality acting administratively or in a representative capacity in any other body having legal personality.
    • This is an old provision ; its amendment was being studied before the strike in question took place.
11. 114. The police, the Government continues, did not endeavour to obtain specific statements but looked for proof of the acts alleged in the accusation. They escorted workers wishing to work, in order to prevent disturbance of public order. The authorities in Curaçao have no information that the police asked strikers why they did not resume work. The local police chief had ordered the police to be entirely impartial and this order had been published. It is true that the offices of the Confederation of Workers of Curaçao were closed and a duplicating machine seized as material evidence, but the agenda books were not confiscated : the police asked the president of the Confederation to let them see the books, and he voluntarily authorised this.
12. 115. It is not true that there was an atmosphere of intimidation, as the complainants allege. The Government of the Netherlands Antilles considered that proceedings based on article 138bis of the Penal Code were not called for ; although not illegal, they were contrary to clear directives given by the Government. However, the detention and proceedings were based on valid legal provisions. When the Public Prosecutor appealed against the decision of the court of first instance to discharge and liberate the accused persons, the Minister of Justice of the Netherlands Antilles intervened and ordered the appeal to be withdrawn. The Government has taken action to prevent such proceedings from being opened in the future unless it has been consulted. The Government of the Netherlands Antilles declared in the local Parliament there that it did not share the opinions of the Public Prosecutor.
13. 116. The Government states that all the above measures, which should be judged in the light of the circumstances and especially of the very tense situation existing between the workers and the Company, were taken on the basis of valid legal provisions, and that the proceedings and detention could not be regarded as illegal. The intention of the Government of the Netherlands Antilles to protect trade union rights and to help young trade unions has been demonstrated by its attitude during the legal proceedings and by the action taken to modify the previous provisions which might impede the development of the trade union movement. The strike which gave rise to these incidents ended with a compromise agreement (the Government has transmitted the text to the Committee). This provides, inter alia, that during the period covered there should be no strikes or lockouts ; the Company states its intention to employ an industrial relations representative to work for harmonious relations between management and labour ; meanwhile, the management will receive a committee appointed by the Union for the purpose of peacefully resolving any labour dispute.
14. 117. Referring to the allegation concerning the deportation of workers the Government states that, of the 235 workers dismissed by the Company during the strike, 228 had permits to reside in Curaçao only pending duration of their contracts of employment, whereas seven held unconditional permits to reside in the Island. The 228 workers were given a period of at least two weeks to seek new posts which they might take, provided, in the opinion of the Employment Office, no unemployed Antillean was an appropriate candidate. At the beginning of January 1956 nine workers had thus found fresh employment, and the 219 others had left the Netherlands Antilles. These persons, the Government stated, could be readmitted to the territory if-with the authorisation of the Employment Office they had found new employment. The agreement between the Union and the Mining Company dated 1 February 1956 stipulates that " all those employees who stopped work with the Company on 15 October 1955 will be reemployed in so far as is possible in their former jobs, if they apply before 15 February 1956.." and (article 7) "those employees who were repatriated to the British West Indies will be returned to work as needed without discrimination, as rapidly as full-scale production can be resumed, in accordance with an orderly plan to be worked out between the Union and the Company ".
15. 118. The Government states in conclusion that, having regard to the facts described, it does not see any reason to make special representations to the Antilles Government in this matter, but that it will not cease in the future to ensure respect for the obligations deriving from international Conventions.

B. B. The Committee's conclusions

1. 119. The Netherlands Government ratified the Freedom of Association and the Protection of the Right to Organise Convention, 1948 (No. 87), on 7 March 1950. On 22 June 1951 it accepted the provisions of the Convention in the name of the Government of the Netherlands Antilles, the relations of this country with the metropolis being governed by the Proclamation of 29 December 1954-Statute of the Kingdom of the Netherlands (Publicatieblad 1954, No. 121).
2. 120. The complainant contends that there have been serious breaches of the provisions of this Convention in the Netherlands Antilles and that in the autumn of 1955 there was such an atmosphere of intimidation that trade union activity " had been severely disrupted and union members and officers were afraid to carry on their normal trade union activities ". The Government's view of the general situation in the Netherlands Antilles is that it must be judged in the light of various circumstances : there has been rapid industrialisation, existing legislation is no longer fully adapted to modern conditions and the trade unions are still at an initial stage. The Government states that it is in no way opposed to the development of the trade union movement and gives the assurance that it will not cease in the future to ensure respect for obligations arising under Conventions. The specific allegations made by the complainant are examined below.
   • Allegation regarding Right of Assembly and Right of Speech
3. 121. The first specific allegation relates to the action of the local police in preventing several representatives of workers' international organisations from speaking at the ceremony held on 2 August 1955 to celebrate the foundation of the Confederation of Workers of Curaçao. Such an action, the complainants contend, involves a violation of the rights implicitly recognised by Article 3 of Convention No. 87, which lays down that " workers' and employers' organisations shall have the right to organise their administration and activities and to formulate their programmes. The public authorities shall refrain from any interference which would restrict this right or impede the lawful exercise thereof."
4. 122. In this connection the Government, without expressly denying the charges, states that it sees nothing inconvenient in foreign trade union representatives speaking at meetings, in so far as this is compatible with the law and with public order.
5. 123. As the Netherlands Government has given assurances that the right of association and the right of speech may in future be exercised without hindrance in accordance with the law and provided public order is not disturbed, the Committee may, while emphasising, as it has done in previous cases, the importance which it attaches to the safeguarding of the right of trade union assembly and of the right of national trade union organisations to maintain relations with international occupational organisations, wish to recommend the Governing Body to decide that this allegation does not call for further examination.
   • Allegation regarding Trade Union Recognition
6. 124. It is contended that the United Miners' Union formed in 1955 was not recognised by the Curaçao Mining Company on the technical ground that its rules had not been approved by the Government. It appears that during the ensuing dispute the Government approved the rules but that the Company continued to withhold recognition so that a strike was called on 15 October 1955. After the other incidents considered under other heads in this report, the question of recognition appears to have been satisfactorily settled finally by the signing of an agreement between the parties on 1 February 1956. In these circumstances, while emphasising the importance which it attaches to the principle that employers should recognise for the purposes of collective bargaining the legally constituted organisations representing their employees, the Committee considers that, while this allegation may have been well-founded when it was made, it has now become purposeless and recommends the Governing Body to decide that this aspect of the case does not call for further examination.
   • Allegation regarding Detention and Prosecution of Trade Union Officers
7. 125. The second allegation refers mainly to the detention of three trade union officers during the strike at the Curaçao Mining Company, and to the taking of proceedings against these persons, first of all for suspected complicity in arson and-when evidence in support of this charge was not forthcoming- for incitement to a strike with violence (an offence punishable under article 138bis of the Penal Code of the Netherlands Antilles). Such acts, it is alleged, impede the free operation of the Union by arbitrarily arresting its officers, and so constitute a violation of the right of trade unions to organise their activities (Article 3 of Convention No. 87).
8. 126. The Government recognises that these events took place, but states that this intervention by the local authorities was within the law ; that the trade union officers were detained, in accordance with the Code of Penal Procedure, for suspected infringement of various provisions of the Penal Code (complicity in arson, incitement to a strike with violence) ; that the proceedings against the accused persons followed the course indicated by law, and the case for the prosecution was conducted in the normal manner ; that measures to obtain evidence -some of which are examined below-had been ordered in accordance with the law by the public prosecutor, who prosecutes in criminal cases ; but that the above action was taken without previous consultation of the Government of the Netherlands Antilles and was contrary to its express directives.
9. 127. When the court of first instance dismissed the charge brought by the Public Prosecutor and ordered the accused to be set at liberty, the Government of the Netherlands Antilles intervened and instructed the Public Prosecutor to withdraw the appeal which he had brought against the court's judgment and which would have suspended its effect. The proceedings were thereupon closed, the accused persons were released, and the Government states that action has been taken to prevent such proceedings-even when legally permissible-from being instituted unless it has itself been previously consulted.
10. 128. The complainants allege further that during the proceedings the offices of the Union were closed and sealed, and that the local police had adopted a tendentious attitude, escorting workers to their workplace and obliging some workers to give evidence. The Government states that the local police took no intimidating action against the workers, and that the closing and sealing of the trade union offices, the removal of a duplicating machine, the search for witnesses for the prosecution and the examination of the Union's books (this last act having apparently been done with the permission of the president of the Union) were all measures taken in due process of law with the object of conducting legal proceedings and providing proof of allegedly criminal acts, and had been ordered by the Public Prosecutor in accordance with ordinary penal procedure.
11. 129. As regards the main charge against the detained persons, the Government states that this was based on article 138bis of the Penal Code of the Netherlands Antilles, the text of which is reproduced above (it provides for a penalty of imprisonment or a fine in case of incitement to a violent strike or to one which may disrupt the domestic economy) ; this is described as an old provision, amendment of which was already being examined by a special committee before the strike mentioned in the complaints had broken out.
12. 130. The real issue before the Committee here is whether the arrest and detention of the trade union leaders, first on suspicion of complicity in arson and then on charges of incitement to a violent strike, constituted an infringement of trade union rights. The essence of the allegation is that the arrests and subsequent charges were wholly unjustified and were measures of intimidation taken because of the strike and, the complainant contends, the real intention was to defeat the strike and prevent trade union activity. The Government admits that no proof of complicity in arson was forthcoming and it would appear that no such charge was ever brought before the courts ; the actual charges made in the courts were based on a breach of the Penal Code provisions relating especially to incitement to a violent strike. The proceedings, the Government states, were brought in full accordance with existing legal procedure, but it admits that the law invoked is obsolete, that its amendment was being studied before the events in question took place and that the bringing of the proceedings was in fact due to the initiative of the Public Prosecutor who acted contrary to the views of the Government of the Netherlands Antilles, whose Minister of Justice finally intervened to prevent the Attorney-General from appealing against the acquittal of the accused by the court of first instance. Other matters complained of were in reality ancillary to these proceedings. Thus, the Government admits that such measures as the temporary closing and sealing of the trade union offices and the removal of a duplicating machine were all ordered by the Public Prosecutor in the course of assembling the evidence material to the proceedings.
13. 131. The Committee considers that, in view of the foregoing facts, the arrest and proceedings taken were, in the Government's own words, " uncalled for ", and that, in the prevailing circumstances, they must of necessity have interfered with the trade union activities of the persons concerned and with the proper functioning of the trade union organisation to which they belonged. Noting, however, the Government's assurances that the bringing of the proceedings was disapproved by the Government of the Netherlands Antilles itself, which finally took steps to terminate them, that the amendment of the law on which they were based is being studied, that no similar proceedings will be taken in the future without the Government's first being consulted, and that the whole situation now appears to have been considerably altered by the signing of a collective agreement which may set a pattern for more harmonious relations, the Committee recommends the Governing Body to decide that it would now be purposeless to pursue this aspect of the case further, but to draw the attention of the Government to the importance of ensuring respect in the Netherlands Antilles for the principles contained in the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and, in particular, to the principles that organisations shall have the right to organise their administration and activities and to formulate their programmes, and that the public authorities shall refrain from interference which would restrict this right or impede the lawful exercise thereof ; and finally to request the Government to keep it informed of the progress made in the withdrawal of the obsolete legal provisions on the subject.
    • Allegation regarding Deportation of Workers
14. 132. As regards the allegation that a large number of workers dismissed by the Mining Company during the strike were deported, the Government admits the deportation of 219 foreign workers whose provisional permits to reside in Curaçao had lost validity when the holders became unemployed. However, it states, the dismissed workers had a period of two weeks to seek other employment before they were obliged to leave the territory of Curaçao ; nine workers were able to take advantage of this facility ; and the remainder may be readmitted to the Netherlands Antilles if they can find other employment. Furthermore, in the agreement concluded between the Company and the Union on 1 February 1956, it is stipulated that deported workers applying before 15 February will be re-engaged by the Company as far as possible, in accordance with a plan to be worked out between the parties.
15. 133. It would appear, therefore, that, following conclusion of the said agreement between the Company and the Union, the position in this regard will tend to become normal, the authorities having raised no obstacle to the return of the dismissed and deported workers to their former jobs. In previous cases the Committee has regarded as outside its terms of reference any examination of the general question of the position of aliens, which is not covered by Conventions, in so far as action against foreign workers does not infringe the free exercise of trade union rights. In the present case the complainants had some ground for regarding the mass deportation of so many workers as a measure intended to liquidate the Union. However, in the light of subsequent developments-conclusion of an agreement providing for reintegration of the deported workers in their jobs-and as there is now no legal restriction on the return of the said workers to the Netherlands Antilles if they obtain new contracts--the Committee considers that this allegation has now become purposeless and, therefore, recommends the Governing Body to decide that it does not call for further examination.

The Committee's recommendations

1. 134. In all the circumstances, having regard to the formal assurances of the Government that the obligations assumed under International Labour Conventions will be respected, that in the future proceedings based on a provision of the Penal Code which in the opinion of the Government itself no longer corresponds to present conditions and the amendment of which is being studied will not be instituted without the Government being consulted, and bearing in mind that, with respect to the particular allegations made, the Government will not prevent the making of speeches by foreign delegates at trade union meetings in so far as this is compatible with respect for the law and public order, that the question of union recognition has now been settled by a collective agreement, that the trade union leaders arrested have been acquitted and set free and that steps have been taken to permit the deported workers to be reintegrated in their former occupation, the Committee recommends the Governing Body:
   • (a) to emphasise the importance of scrupulous compliance with all the provisions of the Freedom of Association and Protection of the Right to Organise Convention, 1948, which has been accepted in the name of the Government of the Netherlands Antilles ;
   • (b) to request the Government of the Kingdom of the Netherlands to communicate to the Government of the Netherlands Antilles the earnest hope of the Governing Body that it will give urgent consideration to the amendment of its legislation so as to bring it into greater harmony with the principles laid down in the Convention, and will keep the Governing Body informed of the progress made ;
   • (c) to decide that, subject to these reservations and to the observations made in paragraphs 123, 124, 131 and 133 above, the case as a whole does not call for further examination.