Interim Report - Report No 67, 1963

Case No 278 (South Africa) - Complaint date: 29-DEC-61 - Closed

1. 108. The complaint of the South African Congress of Trade Unions (S.A.C.T.U.) is contained in a communication dated 29 December 1961. The Government furnished its observations in a letter dated 21 May 1962.
2. 109. The Republic of South Africa has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), or the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. A. The complainants' allegations

1. 110. It is alleged that on 6 December 1961 South African security police searched the office of the South African Railways and Harbours Non-European Workers' Union and confiscated membership cards issued to individual members, those individuals being told later by the railway police that if they adhered to the union they would be dismissed from the service of the railways. The complainant declares that some workers have been transferred, contrary to law, to other jobs at wages lower than they were receiving.
2. 111. The Government states that the workers concerned are police constables employed by the South African Railways and Harbours Administration. The South African Railways and Harbours Non-European Workers' Union is a subsidiary of the South African Congress of Trade Unions, whose activities, declares the Government, cover a wide field, including political matters which are not regarded as falling within the scope of a trade union's legitimate activities; the action complained of arose not from the exercise of trade union rights but from other activities with which members of a police force should not be associated. The Government denies that the workers concerned were intimidated or that their wages were reduced because of their union membership, pointing out that their service conditions provide that they must be prepared at all times to serve at such places and in such capacities as are in the best interests of the Administration, although the policy is to transfer workers only if the needs of the Administration cannot be met in any other way. Such transfers may entail either a reduction or an increase in remuneration because differential wage scales operate on an area basis.

B. B. The Committee's conclusions

1. 112. There are two essential points in the complaint, one relating to the right of association of non-European police constables and the other relating to the alleged search by the police of the premises of the trade union to which certain constables, together with other classes of non-European employees, belonged.
2. 113. Police constables are in a very special position as regards the question of the exercise of the right to organise. In a few countries they enjoy that right in the same way as other workers, but in the majority of countries they are either prohibited from joining trade unions or are permitted to join only special associations whose membership is limited to their own categories. The fact that it cannot be contended that in the countries of the world there is any generally accepted principle that members of the police should freely exercise the right of association was recognised by the International Labour Conference when, in adopting the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Conference framed Article 9 (1) of the Convention in the following terms:
   • The extent to which the guarantees provided for in this Convention shall apply to the armed forces and the police shall be determined by national laws or regulations.
3. 114. In view of this, the Committee, thanking the Government for the explanations which it has furnished, and assuming, on the basis of those explanations, that any changes in the wages of the workers transferred was due solely to the application of area differentials in the wages structure and that the transfers were effected in full accordance with the law and not as a reprisal for trade union membership or activity, does not consider it necessary to examine further those aspects of the allegation which relate to the organising rights of the police constables involved in the present case.
4. 115. The Government makes no reference to the alleged search of trade union premises.
5. 116. In a previous case the Committee, while recognising that trade unions, like other associations or persons, cannot claim immunity from search for their premises, emphasised the importance which it attaches to the principle that such a search should only be made following the issue of a warrant by the ordinary judicial authority after that authority has been satisfied that reasonable grounds exist for supposing that evidence exists on the said premises material to a prosecution for an offence under the ordinary law and provided that such search is restricted to the purposes in respect of which the warrant was issued.

The Committee's recommendations

1. 117. In these circumstances the Committee recommends the Governing Body to request the Government, having regard to the principles enumerated in paragraph 116 above, to be good enough to furnish its observations with regard to the allegation that the police searched the premises of the South African Railways and Harbours Non-European Workers' Union.