Informe provisional - Informe núm. 68, 1963

Caso núm. 291 (Reino Unido de Gran Bretaña e Irlanda del Norte) - Fecha de presentación de la queja:: 07-ABR-62 - Cerrado

1. 94. The complaint of the Confederation of Arab Trade Unions is contained in two communications dated 7 April and 25 November 1962, that of the I.C.F.T.U in three communications dated 1 August, 18 September and 3 October 1962, that of the World Federation of Trade Unions (W.F.T.U.) in a communication dated 11 December 1962 and that of the Aden Trades Union Congress in a communication dated 15 December 1962.
2. 95. By a communication dated 29 October 1962 the Government forwarded its observations on the communication from the Confederation of Arab Trade Unions dated 7 April 1962 and on the communication dated 1 August 1962 from the I.C.F.T.U.
3. 96. The United Kingdom has ratified the Right of Association (Non-Metropolitan Territories) Convention, 1947 (No. 84), the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98) and has declared them to be applicable, without modification, to Aden.

A. A. The complainants' allegations

• Allegations relating to Interference with Trade Union Activities in General
  97. 97 The Confederation of Arab Trade Unions alleges, in general terms, in its communication dated 7 April 1962 that the British authorities are interfering in trade union activities, and exercising pressure and persecution in Aden, contrary to the provisions of the Conventions referred to in paragraph 96 above. The complainant considers that the situation should be investigated by an independent commission of inquiry.
  98. 98 In its communication dated 29 October 1962 the Government declares that the allegations are in such vague and general terms that it cannot comment upon them.
  99. 99 The complainants adduce no evidence of any specific incidents and do not explain which provisions of the Conventions in question are considered to have been violated.
  100. 100 The Committee considers that these allegations are too vague to permit of their being examined on their merits and, therefore, recommends the Governing Body to decide that this aspect of the case does not call for further examination.
• Allegations relating to the Industrial Relations (Conciliation and Arbitration) Ordinance, 1960
  101. 101 In its communication dated 1 August 1962 the I.C.F.T.U contends that the enforcement of the Industrial Relations (Conciliation and Arbitration) Ordinance, 1960 has infringed trade union rights and that trade union officers have been prosecuted, pursuant to its provisions, on a great number of occasions, when they took or contemplated taking action to defend the interests of their members. The complainant states that, although the Committee on an earlier occasion found soon after its enactment that the provisions of the ordinance in general were not incompatible with I.L.O standards concerning trade union rights, the experience of the two years which have elapsed since its enactment shows that in practice trade union rights have been impeded and the principle of free collective bargaining has been infringed in Aden.
  102. 102 The complainants consider that the penalties prescribed by the ordinance in the event of contraventions of its provisions are excessive. They cite the following provisions. Section 13 (2) of the ordinance prescribes a fine of 1,000 shillings and/or imprisonment not exceeding six months in respect of the offence of committing or assisting, abetting or inciting the commission of any act in violation of a settlement of a dispute reached through the conciliation of the labour officer at any time before the expiry of one month after any notice of repudiation of such a settlement. Section 15 (4) renders liable to a fine of up to 1,000 shillings any person who fails to attend the Industrial Court after having been ordered to do so or fails to furnish particulars or to answer questions as ordered by the Court. Section 22 provides that fines can be imposed upon anyone bound by an award of the Court for wilful breach or failure to observe any condition of the award. Section 23 prescribes a fine of up to 2,000 shillings and/or imprisonment not exceeding six months in respect of the offence of inciting to boycott an award and in other ways attempting to frustrate it (e.g. by inciting restriction of production); section 24 prescribes the same penalties for taking part in or inciting a strike or imposing a lockout. Finally, declare the complainants, there can be fines or imprisonment under section 26 for breach of contract in essential services (or incitement to it) and fines for interfering with posters displayed in places of employment reproducing this section of the law.
  103. 103 According to the complainants the situation has become such that disputes which under other circumstances would have been considered normal industrial conflicts led to the prosecution of trade unionists, some of whom were severely penalised for contravening the ordinance. The complainants cite a number of specific cases affecting the officers of trade unions affiliated to the Aden Trades Union Congress.
  104. 104 In October 1961, it is alleged, after negotiations with the building employers broke down, a general meeting of the General and Technical Workers' Union decided to call a 48-hour strike in the industry. Some strikers were fined and the General Secretary of the Union, Mr. A. Murshed, is stated to have been sentenced to 27 months' rigorous imprisonment on charges of incitement to strike and sedition, a sentence reduced on appeal by six months.
  105. 105 In January 1962, it is alleged, Mr. A. Obeid, President of the Refinery Workers' Union, was sentenced to four months' imprisonment and ten members of the union executive committee to six weeks' imprisonment on a charge of having called a trade union meeting during working hours.
  106. 106 At the end of January 1962, declare the complainants, the Forces Local Workers' Union contemplated strike action because a satisfactory agreement could not be secured; the general meeting accorded full powers to a five-member emergency committee. Before any strike had taken place, it is alleged, the five were brought before the Court and required to enter into a one-year bond to abide by the ordinance; on their refusing, they were sentenced to detention for the period of the bond.
  107. 107 It is alleged that, when the Forces Local Workers' Union finally called a 24-hour strike on 11 April 1962, the Assistant General Secretary of the Aden T.U.C, Mr. A. Aswadi, and the President of the Union, Mr. A. Latif, were sentenced to four months' imprisonment. When a second strike was called on 9 and 10 May 1962, 30 strikers were fined.
  108. 108 In the light of these facts, the complainants submit, the combination in the ordinance of compulsory arbitration, prohibition of strikes and severe penalties for any contravention restricts trade union rights and represses legitimate trade union activities, whatever the legislative intention may have been. The stated purpose of the ordinance was, according to the complainants, to encourage the development of voluntary collective bargaining by exempting from compulsory arbitration and from the prohibition of strikes cases in which collective agreements contain satisfactory arrangements for the settlement of trade disputes; in fact, it is alleged, a system of coercion has in many cases taken the place of free collective bargaining.
  109. 109 The complainants call for the repeal of the Aden Industrial Relations (Conciliation and Arbitration) Ordinance, 1960, the reprieve of the imprisoned or detained trade unionists and the encouragement of the full development and utilisation of machinery for voluntary negotiation in the spirit of Article 4 of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).
  110. 110 In conclusion the complainants request that the Governing Body should ask the Government to consent to the appointment of an I.L.O. Commission of Inquiry to investigate on the spot the industrial relations situation in Aden and to submit proposals for establishing adequate voluntary negotiation machinery safeguarding full trade union freedom of action, including the right to strike, and protecting the generally admitted principles of free collective bargaining.
  111. 111 In its communication dated 11 December 1962 the W.F.T.U also refers to the arrest of Mr. Aswadi and Mr. A. Latif (see paragraph 107 above), but gives the name of the latter as Mr. Abdullatif Mohammed Jamali. This complainant also cites the cases of Mr. Abdullah Al Asnag, General Secretary of the Aden T.U.C, and Mr. Idris Ahmed Hambala, alleged to have been arrested.
  112. 112 In its communication dated 29 October 1962 the Government begins by referring to its letter dated 13 February 1961, in which it set out its views concerning the relationship between the ordinance and the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). The earlier communication referred to was analysed in paragraphs 74 to 76 of the 57th Report of the Committee, dealing with Case No. 221 relating to Aden. The Government, at that time, explained that the essential purpose of the ordinance was to encourage the development of voluntary collective bargaining and the establishment of working conditions and wages by collective agreement and declared that it precisely fulfilled the objectives of Article 4 of the said Convention No. 98. The Government stated that the failure of both sides to negotiate agreements and the refusal of the unions to accept voluntary arbitration or exhaust negotiation before calling strikes had been among the reasons for the enactment of the ordinance. At that time the ordinance had been in force for six months and a number of agreements had been negotiated and the more constructive trend in industrial relations showed, in the Government's view, that the original assessment of the I.C.F.T.U had been too pessimistic.
  113. 113 After referring the Committee to these earlier observations, the Government goes on, in its communication of 29 October 1962, to review more recent trends in industrial relations in Aden. The Government claims that statistics show that, since the enactment of the ordinance, considerable progress has been made in the development of voluntary collective bargaining; ten procedural agreements have been concluded, whereas none existed before, and there has been considerable progress in the improvement of wages and conditions of service and a reduction in the time lost in industrial disputes. In the eight months of 1960 preceding the coming into force of the ordinance there were 39 strikes, resulting in a loss of 134,831 man-days involving 9,698 men; in the 27 months since the enactment of the ordinance the loss has been 29,391 man-days involving 11,811 men. In that same period, in 185 out of 194 disputes (the other nine are still outstanding), the trade unions have taken part in the negotiations and the workers concerned have benefited in the final result after the disputes have been settled by direct negotiation, conciliation and arbitration. In the view of the Government, therefore, the facts do not bear out the allegation that the ordinance has impeded the establishment of ordinary industrial relations but, on the contrary, show that it has been an incentive to trade unions and employers to negotiate voluntary agreements.
  114. 114 Further, the Government declares that the Minister of Labour of Aden recently invited representatives of employers' and employees' organisations to sit on an Aden Joint Industrial Council, which would advise the Government of Aden on labour policies, labour legislation and methods of improving industrial relations, and whose first task would be to furnish the Minister with the advice necessary to enable the Government of Aden to carry out a review of the Industrial Relations Ordinance. This procedure would seem to be fully in accordance with the Right of Association (Non-Metropolitan Territories) Convention, 1947 (No. 84), concludes the Government, and to make it unnecessary to consider any suggestion for review by any outside commission.
  115. 115 As regards the application of the penal provisions of the ordinance, the Government declares that the provisions of section 24 are the only ones of this kind to which recourse has been had. Prosecutions have been brought under section 24 in respect of only three disputes. Sentences of imprisonment were imposed on persons involved in the three disputes, but only in two cases did they exceed three months and most were less. In the Government's view, the sanctions prescribed by the ordinance have been exercised with restraint.
  116. 116 When the Committee examined, in Case No. 221 relating to Aden, allegations relating to the provisions of the ordinance which place restrictions on the right to strike and institute a system of arbitration, it took the view that they did not appear to be incompatible with Article 4 of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), under which the Government of the United Kingdom has undertaken, with respect to Aden, that " measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilisation of machinery for voluntary negotiation between employers or employers' organisations and workers' organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements". The only aspect of those provisions to which the Committee gave further detailed consideration were those which accord to the Crown a special position, in certain respects, with regard to submission to arbitration. As regards these latter provisions, which have been the subject of a direct request to the Government by the I.L.O. Committee of Experts on the Application of Conventions and Recommendations, the Committee, when it reported further to the Governing Body on Case No. 221 in its 58th Report, concluded by recommending the Governing Body to take note of certain statements on the matter made by the Government. This latter issue is not raised in the allegations now being considered and, as the Committee has already pronounced on the legal compatibility of the other provisions of the ordinance relating to arbitration with the said Convention No. 98, there is no occasion for it to reopen this legal aspect of the case.
  117. 117 What is to a certain extent a new element in the present case is the allegation that the experience of the past two years shows that, in practice, those legal provisions have not promoted but have defeated the application of Article 4 of the said Convention No. 98. When the Committee examined Case No. 221 the ordinance had only recently been enacted and the Committee had before it conflicting views expressed by the I.C.F.T.U and the Government as to whether the ordinance would encourage the conclusion of collective agreements or whether, on the contrary, it would encourage employers to go to arbitration because that would be to their advantage. On the issue thus presented at that time the Committee declined to express a view.
  118. 118 In the present case, the complainant, two years after the enactment of the ordinance, adheres to the view that the system established has not promoted or encouraged voluntary negotiation, but has replaced it essentially by compulsory arbitration, which, allied to the prohibition of strikes, has prevented normal trade union activity. The Government denies that this is true, pointing out that there have been fewer stoppages of work and a smaller loss of working days and that, of 194 disputes, 185 have been settled advantageously to the workers. It is not clear, however, from the evidence furnished, whether this result has been due to a greater tendency towards free collective bargaining or to the fact that restrictions placed on strikes have led to settlement by compulsory means. This, obviously, is a matter on which divergent views are held and on which the Committee would find it extremely difficult to express a firm view on the basis of the evidence available to it.
  119. 119 In this connection, however, the Government has announced a new development, the consequences of which may throw further light on this aspect of the case. The Minister of Labour has recently invited representatives of employers' and employees' organisations to sit on an Aden Joint Industrial Council, which would advise the Government of Aden on a number of matters and " whose first task would be to furnish the Minister with the advice necessary to enable the Government of Aden to carry out a review of the Industrial Relations Ordinance ".
  120. 120 In these circumstances the Committee, noting that this statement was made by the Government in a letter addressed to the I.L.O nearly four months ago, requests the Government to be good enough to furnish information as to further developments in this connection and, in particular, as to the response which has been received to the invitations made by the Minister of Labour of Aden. The Committee also requests the Government to be good enough to state, if possible, when it is anticipated that the Joint Industrial Council will embark upon its initial task of advising the Minister concerning a review of the ordinance.
  121. 121 There remains the further issue raised by the complainants to the effect that the penal provisions of the ordinance are excessive. The complainants have cited certain alleged specific cases of the application of these provisions (see paragraphs 104 to 107 and 111 above). In its reply the Government has stated that prosecutions have been instituted, in respect of three disputes, under only one of the penal sanctions of the ordinance-section 24, which prescribes a penalty of a fine of up to 2,000 shillings and/or imprisonment not exceeding six months in respect of the offence of taking part in or inciting a strike.
  122. 122 In these circumstances, noting especially that it is alleged that the General Secretary of the General and Technical Workers' Union was sentenced to 27 months' rigorous imprisonment, the Committee requests the Government to be good enough to furnish more detailed information on the specific cases referred to in paragraphs 104 to 107 and 111 above, including information as to the reasons on which the judgments of the courts in these cases were based.
• Further Allegations
  123. 123 A number of further allegations have been made by the I.C.F.T.U, in communications dated 18 September and 3 October 1962, the Confederation of Arab Trade Unions, in a communication dated 25 November 1962, the World Federation of Trade Unions, in a communication dated 11 December 1962, and the Aden Trades Union Congress, in a communication dated 15 December 1962.
  124. 124 As the Government has not yet forwarded its observations on these allegations, the Committee requests the Government to be good enough to furnish its observations as soon as possible.

The Committee's recommendations

1. 125. In these circumstances the Committee recommends the Governing Body:
   • (a) to decide that the allegations relating to interference with trade union activities in general contained in the complaint submitted on 7 April 1962 by the Confederation of Arab Trade Unions do not call for further examination;
   • (b) to take note of the present interim report of the Committee on the remaining allegations, it being understood that the Committee will report further thereon to the Governing Body when it has received further information and observations which it has requested from the Government.