Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 95, 1967

Caso núm. 448 (Uganda) - Fecha de presentación de la queja:: 19-JUL-65 - Cerrado

1. 112. The complaint of the Uganda Trades Union Congress is contained in a communication dated 19 July 1965. In its first reply, dated 5 April 1966, the Government did not comment on the substance of the allegations made, but noted that the Uganda Trade Unions Act, 1965, criticised in the complaint, did not infringe the Right of Association and Collective Bargaining Convention, 1949 (No. 98), ratified by Uganda, and contended that, as Uganda had not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), Uganda could not be the subject of representations or complaints arising out of the non-observance of that Convention.
2. 113. The Committee considered this contention at its meeting on 23 May 1966, when it submitted an interim report to the Governing Body in paragraphs 168 to 175 of its 92nd Report. In that report the Committee, while appreciating that the said Convention No. 87 had not been ratified by Uganda, drew attention to the fact that the procedure for the examination of complaints of alleged infringements of trade union rights is quite separate from the procedure for examining representations concerning the non-observance of a ratified Convention within the meaning of article 24 of the I.L.O. Constitution. The Committee recalled its jurisprudence in earlier cases in which, having regard to the provisions of the Declaration of Philadelphia, it had taken the view that the non-ratification of one of the Conventions relating to freedom of association was not a sufficient reason to cause it to refrain from examining the substance of allegations based wholly or partly on the provisions of such instrument or principles proceeding from it, with a view to ascertaining the facts and reporting them to the Governing Body.
3. 114. In these circumstances the Committee recommended the Governing Body, in paragraph 175 of its 92nd Report, to draw the attention of the Government to the terms of the resolution concerning freedom of association and protection of the right to organise adopted by the First African Regional Conference of the International Labour Organisation (Lagos, December 1960) and to request the Government to be good enough to co-operate with the Committee, in the spirit of that resolution, by furnishing its observations on the different specific matters raised in the allegations.
4. 115. The above recommendation was approved by the Governing Body at its 166th Session (June 1966) and brought to the notice of the Government by a letter dated 4 July 1966. The Government furnished its observations by a communication dated 14 October 1966.
   • Question as to the Receivability of the Complaint
5. 116. In its complaint dated 19 July 1965, signed by its President, Mr. H. Luande, M.P, the Uganda Trades Union Congress alleged that, since the promulgation of the Trade Unions Act, 1965, the Minister had been threatening existing trade unions which did not openly support the Act and " indicating that their chances of existence are narrow, thus causing fear in the minds of trade union leaders who would have liked to continue to practise democratic free trade unionism and exercise their rights in Uganda ".
6. 117. In its communication dated 5 April 1966 the Government referred to the complaint as a " representation filed ... by the Hon. H. M. Luande, M.P, President of the Uganda Trades Union Congress ". While considering that the representation was not valid because Uganda had not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) (see paragraphs 112 and 113 above), the Government made no suggestion at that time that the Uganda T.U.C was not a duly constituted trade union organisation. In its letter dated 14 October 1966, however, the Government states that the Uganda T.U.C and also the Federation of Uganda Trade Unions were dissolved on 23 August 1966, " as a result of a decision agreed upon by affiliated trade unions, and a new organisation known as Uganda Labour Congress was established ". The Government contends that the complaining organisation is defunct and that therefore its complaint is irreceivable.
7. 118. A complaint may be submitted under the procedure in force by a national organisation of workers directly interested in the matters alleged. At the date when the complaint was submitted, on 19 July 1965, the complaining organisation was a validly existing organisation entitled to submit a complaint, and the Committee therefore received the complaint as a validly presented complaint. The Government now contends that because the complaining organisation dissolved on 23 August 1966, more than one year later, the complaint should be treated as irreceivable.
8. 119. In its First Report the Committee declared that it would be inconsistent with the purpose for which the procedure for the examination of allegations concerning the infringement of trade union rights was established for it to admit that the dissolution or purported dissolution of an organisation extinguishes the right of the organisation to invoke the procedure. This rule applies, in the case of involuntary dissolution, whether the dissolution is prior or subsequent to a complaint being submitted. While purely voluntary dissolution would cause an organisation to cease to be entitled to submit a complaint in the future, the Committee considers that, once an existing organisation has submitted a complaint in due form, its subsequent dissolution, even where it is voluntary, can have no retroactive effect on the receivability of the complaint. It may have a bearing on the question whether any issue calling for further examination still exists, but in the present case the allegations relate to legislation which still continues in existence, and the complaining organisation, before it dissolved, made no request to the I.L.O to withdraw its complaint.
9. 120. In these circumstances the Committee considers that the complaint having been validly submitted by an organisation competent to do so, it must, irrespective of the sub sequent dissolution of that organisation in circumstances which are not entirely clear, examine the merits of the case in order to determine whether any issues calling for further consideration by the Governing Body are still outstanding.

A. A. The complainants' allegations

• Allegations relating to the Registration of Trade unions
  121. 121 The complainants allege that freedom of association is infringed by section 5 (1) (d) of the Trade Unions Act, 1965, which provides that the Registrar of Trade Unions shall refuse to register a trade union if he is satisfied that any other trade union or employees' association registered under the Act " is sufficiently representative or is likely to become sufficiently representative of the interests in respect of which the application for registration is made ".
  122. 122 The Government states that experience has shown that certain registered trade unions and/or associations which adequately represented the interests of workers in the appropriate fields were being overridden by some other unions seeking to extend the scope of their membership and that in some cases splinter groups had emerged. The Government contends that it introduced this provision, in accordance with Article 2 (1) of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), having regard to its responsibility to protect workers against acts of interference by each other.
  123. 123 In the first place it is necessary to point out that, so far as workers' organisations are concerned, Article 2 (1) of the said Convention is designed to protect such organisations against employers' organisations or their agents or members and not against other workers' organisations or the agents or members thereof. Inter-union rivalry is outside the scope of the Convention.
  124. 124 As the Committee of Experts on the Application of Conventions and Recommendations has pointed out in one case. a provision entitling the Registrar to refuse registration to a trade union when he is satisfied that a trade union already registered is sufficiently representative of the trade or occupation concerned means that in certain cases wage earners may be denied the right to associate. The Committee of Experts has also stated in another case that, while it may be to the advantage of the workers to avoid a multiplicity of trade union organisations, unification of the trade union movement must not be imposed through state intervention by legislative means, as such an intervention runs counter to the principle that workers should have the right to establish and join organisations of their own choosing (embodied in Article 2 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87)) and the principle that workers should be enabled to exercise freely the right to organise (embodied in Article 11 of the said Convention). It would appear that the power given to the Registrar to refuse registration when he is satisfied that an existing registered organisation is sufficiently representative of the interests concerned and, even more so, his power to refuse registration if in his discretion he is satisfied merely that an existing organisation is likely to become sufficiently representative thereof, appears capable of being utilised so as to bring about a unification of the trade union movement by legislative means.
  125. 125 Section 3 of the Act makes registration compulsory. The Committee of Experts has pointed out that when, in this situation, registration may be refused on the ground of the existence of another organisation in the occupation or area, this may amount to a requirement of previous authorisation for the formation of an organisation, contrary to the generally accepted principle embodied in Article 2 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). Such provisions, said the Committee of Experts, involve a risk of interference on the part of the authorities responsible for effecting registration which does not appear to be compatible with the principle contained in Article 8, paragraph 2, of the Convention, according to which the law of the land should not be such as to impair, nor should it be so applied as to impair, the observance of the principle that workers should have the right to form organisations of their own choosing without previous authorisation. Clearly, the risks are even greater when, as in the case of Uganda, registration can be refused not only because a sufficiently representative organisation exists but because the Registrar in his discretion is satisfied that an existing organisation " is likely to become sufficiently representative ".
  126. 126 In these circumstances the Committee recommends the Governing Body:
       • (a) to draw the attention of the Government of Uganda to the importance which it has always attached to the generally accepted principles that workers should have the right to form and join organisations of their own choosing without previous authorisation and without interference on the part of the public authorities and that the law of the land should not be such as to impair, nor should it be so applied as to impair, the exercise of this right;
       • (b) to express the view that the powers accorded to the Registrar of Trade Unions under section 5 (1) (d) of the Trade Unions Act, 1965, are not compatible with those generally accepted principles;
       • (c) to suggest to the Government that it may consider amending its legislation in order to give full effect to the principles noted in subparagraph (a) above.
  127. Allegations relating to the Registration of Trade Union Branches
  127. 127 The complainants allege that freedom of association is infringed by section 10 (1) of the 1965 Act, relating to the registration of union branches.
  128. 128 The Government states that difficulties have arisen in the past in determining the number of union branches and their officials and that this has led to branches in the country districts appearing to operate independently of the control of the parent union and to abuse in the collection of dues without proper accounting procedure.
  129. 129 Section 10 (1) of the Act requires the secretary of a registered trade union to apply for the registration of any branch within 28 days of its formation. The mere requirement that branches shall be registered, a requirement laid down in the legislation of several countries, would not appear per se to imply an infringement of trade union rights. The complainants have given no reasons for making this allegation.
  130. 130 In these circumstances the Committee recommends the Governing Body to decide that these allegations do not call for further examination.
• Allegations relating to the Supervision of the Activities of Trade Unions
  131. 131 It is alleged that section 23 (1) of the Act requires that the books containing the minutes of proceedings of any general meeting and proceedings of a union executive committee shall be open to inspection by the Registrar or anyone authorised by him for not less than one hour every day without charge. The complainant also complains of the powers to investigate the affairs of trade unions accorded to the Minister under Part IX of the Act. In this connection the complainant furnishes a text of the memorandum published with the Trades Union Bill prior to its enactment and draws attention to the statements therein respecting Part IX, which are as follows:
• Part IX contains entirely new provisions. It is widely recognised and accepted in all countries that the only effective way of preventing impropriety in the management of corporate organisations of the nature of trade unions is to ensure effective supervision by some government agency. The idea that members of the trade union can be relied upon to supervise management and to take effective steps to protect themselves is an anachronism;
• The object of Part IX of the Bill is, therefore, to empower the Minister to inquire, by an investigator, into the affairs of a trade union and to take appropriate steps to ensure that the management of a trade union is carried out in the best interests of the members thereof.
  132. 132 With regard to section 23 (1) of the Act, the Government states that in the past there had been no legal obligations for unions to keep proper minutes of their proceedings, and members and the Registrar had no right of access thereto for inspection purposes so as to satisfy themselves as and when necessary that appointments and dismissals of officers and decisions reached on other matters affecting both the members' interests and the economy of the country were Constitutional. The new Act makes it obligatory for unions to keep records of the deliberations of meetings and gives the members and the Registrar right of access to such records so as to overcome difficulties encountered in the past when no such records were kept. In the Government's view section 23 (1) infringes neither the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), nor the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).
  133. 133 With regard to sections 53 to 59 (Part IX) of the Act the Government states that under the legislation previously in force there was no provision permitting the supervision of the activities of a trade union. Section 17 of the repealed Trade Unions Ordinance of 1952 permitted the Registrar to cancel the registration of a trade union only at its own request, upon dissolution, or if the Registrar was satisfied that the union had ceased to exist; experience had shown that section 17 above was not sufficient to prohibit abuse of power by those in control of the affairs of a trade union. The provision of the new Act empowers the Minister responsible for labour matters to take effective measures, by way of inspection or investigation, to ensure that the management of a trade union is carried out in the best interests of the members of that union. These provisions, contends the Government, are in conformity with Articles 3 and 4 of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).
  134. 134 Before considering the new legislation it is necessary to note that the old section 17 subsection 2, permitted the Registrar to cancel or suspend registration on a variety of grounds: that the registration was obtained by fraud, misrepresentation or mistake; that any principal object of the union or the Constitution of the union or its executive committee was unlawful or that the union was being used for an unlawful purpose; that the union had wilfully and after notice from the Registrar contravened any provision of the ordinance; that the funds of the union had been or were being expended in an unlawful manner or on an unlawful object or on an object not authorised by the ordinance; that the accounts of the union were not being kept in accordance with the provisions of the ordinance, etc. Moreover, section 48 of the ordinance allowed the Registrar or any person authorised by him to inspect a union's books of account and list of members at any reasonable time, and section 50 allowed him, apart from other provisions requiring statutory financial returns to be made, to call upon a union to render detailed accounts for any particular period and showing such information as the Registrar might require. Section 6 of the new Act substantially re-enacts the provisions of the former section 17, but now, in any of the reasons set forth, the Registrar " shall " cancel the registration.
  135. 135 Section 23 (1) of the 1965 Act provides in full that:
• The books containing the minutes of proceedings of any general meeting of a registered trade union and proceedings of its executive committee shall be kept at the registered office of the trade union and shall be open to the inspection of any member or the Registrar or anyone authorised in that behalf by the Registrar for not less than one hour in each day without charge; and where the trade union does not exhibit a notice at the registered office specifying the time for such inspection the person entitled to inspect the books under this section shall be entitled to do so forthwith on application.
  136. 136 The provisions comprising Part IX of the 1965 Act may be summarised as follows. Section 53 empowers the Minister, " whenever he considers it necessary in the public interest to do so ", to require a trade union to produce any of its books or documents for inspection; he may impose the same requirement, or call on the union to furnish in writing, to him or his authorised representative, any specified information or explanation, if it appears to him:
       • (a) that the affairs of the union are being conducted or the powers of its officers being exercised in a manner offensive to one or more members of the union or in disregard of his or their proper interests as a member or members of the union;
       • (b) that any book or document which the union is required to send to him or to any person authorised by him under this section does not disclose a full and fair statement of the matters to which it purports to relate; or
       • (c) that the affairs of the union are being conducted in a manner prejudicial to the interests of the members thereof.
  137. Section 53 also prescribes penalties for any failure to comply with the above requirements. Section 54 empowers the Minister, on the basis of the report of a person authorised by him to make the inquiries referred to in section 53, or on the application of the Registrar or of not less than six members of the union, to appoint an advocate of not less than five years' standing to investigate the affairs of the union and report thereon to him. Section 55 empowers the Minister, for the purposes of such investigation, to order an investigation into the affairs of any other union or person which or who is or has at any relevant time been associated in any manner with the trade union directly concerned. Section 56 spells out the duties of union officers and agents to produce books and documents and furnish information to the investigator and prescribes penalties for non-compliance. Section 57 provides for the investigator to report to the Minister.
  137. 137 According to section 58 (1), as a result either of information obtained under section 53 or of the investigator's report, the Minister:
       • (a) may refer the matter to the Director of Public Prosecutions; or
       • (b) may direct the Registrar to cancel the registration of any trade union; or
       • (c) may, if it appears to him that the public interest so requires, direct the Registrar to institute proceedings against any officer or former officer of any trade union or any other person to recover property, damages or compensation to which any person or registered trade union is entitled.
  138. 138 Independently of the foregoing, section 59, subsection (1), empowers the Minister, if it appears to him that there is good reason for doing so, to investigate the membership of a trade union, either by himself or by appointing an investigator to do so. In the event of any persons failing to give accurate information as required under subsections (2), (3) and (4) of the section, the Minister may, pursuant to subsection (5), direct the Registrar to cancel the registration of the trade union.
  139. 139 Section 7 of the Act provides for appeals to the High Court if the registration of a trade union is cancelled by the Registrar for any of the reasons set forth in section 6. But section 6 makes no reference to cancellation of registration on the grounds that it has been ordered by the Minister pursuant to section 58, subsection (1) (b), or section 59 (5). Nor is provision made elsewhere in the Act for any appeal to the court against cancellations of registration ordered by the Minister. Section 9 (1) prohibits non-registered trade unions from carrying on business.
  140. 140 The provisions analysed in the preceding paragraphs raise broad issues relating to the degree of supervision exercised over trade unions and the liability to dissolution entailed by cancellation of registration by administrative decision.
  141. 141 The I.L.O. Committee of Experts on the Application of Conventions and Recommendations has observed that in so far as measures providing for external supervision of trade unions are utilised only in order to prevent abuses to protect the members of the trade union themselves against mismanagement of their funds, they may have a certain usefulness, especially in countries in which the trade union movement is only just beginning to develop. However, continued the Committee of Experts, it would seem that provisions of this kind may, in certain cases, entail a danger of interference by the public authorities in the administration of trade unions and that this interference may be of such a nature as to restrict the rights of organisations to organise their administration in freedom-a generally accepted principle which is embodied in Article 3 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). Nevertheless, observed the Committee of Experts, it may be considered that there is a certain measure of guarantee against such interference where the official appointed to exercise supervision enjoys some degree of independence of the administrative authorities and where he himself is subject to the control of the judicial authorities; on the other hand, it would seem that these guarantees do not always exist where the supervision is exercised by the Minister of Labour or by his services or where no judicial control exists.
  142. 142 The Committee on Freedom of Association has also emphasised that, while legislative provisions requiring the submission of statutory financial returns and other data to clarify the same exist in many countries, they should not be of such a nature as to infringe the generally accepted principle embodied in Article 3 of the said Convention No. 87 that workers' and employers' organisations must have the right to organise their administration and activities and that the public authorities must refrain from any interference which would restrict this right or impede the lawful exercise thereof.
  143. 143 In the present case the Registrar has extensive powers of supervision under section 6 of the Act, according to which he shall, subject to an appeal to the High Court, cancel the registration of a trade union if he is satisfied, inter alia, that registration was obtained by wrongful means, that any object of the union is unlawful, that Constitution of the union or of its executive committee is unlawful, that union funds are or have been expended unlawfully or on an object not authorised by the Act, or that a union wilfully and after warning has contravened any provision of the Act whatsoever. The Registrar is also enabled to ascertain whether any such contingency exists by his powers to inspect all minutes of proceedings under section 23 (1), by the annual financial returns which unions are required to furnish to him under section 39, by his right to inspect books of accounts of the union at any time under section 40 and by his right under section 42 to call for additional accounts whenever he wishes to do so showing any information he may specify. The above provisions reflect the maximum degree of trade union supervision that is normally required under the legislation of most countries. But the powers given under sections 53 to 59 go far beyond this. They are not exercised by an independent person but by the Minister himself, they are subject to no judicial control, they are not even limited to the investigation of criminal activity or to contraventions of the Act; they accord to the Minister the right to investigate a union's affairs in his entire discretion merely if he considers it necessary in the public interest (section 53 (1)) and he is the sole judge, limited by no statutory criteria, of whether the interests of one or more members are being disregarded (section 53 (2) (a)). Finally, following the exercise of all these powers the Minister can, again in his entire discretion and without any right of appeal to the courts, order the cancellation of the registration of a trade union which, by virtue of section 9 of the Act, is tantamount to dissolution.
  144. 144 On numerous occasions in the past the Committee has emphasised the importance which it attaches to the generally accepted principle embodied in Article 4 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), that workers' and employers' organisations shall not be liable to be dissolved by administrative authority.
  145. 145 In these circumstances the Committee recommends the Governing Body:
       • (a) to draw the attention of the Government to the importance which it has always attached to the generally accepted principles that workers' and employers' organisations should have the right to organise their administration and activities without any interference on the part of the public authorities which would restrict this right or impede its lawful exercise, and that such organisations should not be liable to be dissolved by administrative authority;
       • (b) to express the view that the provisions of sections 53 to 59 of the Uganda Trade Unions Act, 1965, are not in accordance with the foregoing principles;
       • (c) to call the Government's attention to the considerations set forth in paragraphs 141 to 144 above and to suggest that it may care to re-examine sections 53 to 59 of the Act in the light of those considerations with a view to determining what amendments may be desirable in order to give effect to the generally accepted principles enumerated in subparagraph (a) above.
  146. Allegations relating to the Payment of Union Officers' Fines or Penalties
  146. 146 It is alleged that trade union rights are infringed by section 36 (1) of the 1965 Act, which prohibits the use of trade union funds to pay fines or penalties imposed upon any person by a competent court other than a fine or penalty imposed upon the trade union itself.
  147. 147 The Government states that this section re-enacts the provision which had existed in section 44 (1) of the repealed ordinance since 1952 without ever giving rise to complaint.
  148. 148 This provision is one which exists in many countries. It does not appear to the Committee that there is anything unusual in a provision that a trade union shall not pay a fine imposed on a union officer in respect of his own unlawful act or of any omission on his part to perform a statutory duty and, in the absence of any evidence by the complainant to show that it is applied in Uganda in any way different from the way in which it is normally applied elsewhere, does not consider that the complainants have offered sufficient proof to substantiate their allegation that it infringes trade union rights.
  149. 149 The Committee therefore recommends the Governing Body to decide that these allegations do not call for further examination.
• Allegations relating to Picketing
  150. 150 The complainants criticise section 44 (1) (b) of the 1965 Act, which makes it unlawful to picket in such numbers or otherwise in such manner as to be calculated to intimidate any person in the house or place picketed, or to obstruct the approach thereto or egress therefrom, or to lead to a breach of the peace.
  151. 151 The Government denies that the provision infringes trade union rights and states that it simply re-enacts section 52 (b) of the repealed Trade Unions Ordinance of 1952.
  152. 152 In certain past cases the Committee has emphasised the importance that it attaches to the principle that pickets acting in accordance with the law should not be subject to interference by the public authorities.
  153. 153 Section 44 (1) (a) of the 1965 Act provides for the exercise of the right of peaceful picketing in contemplation or furtherance of a trade dispute in the same terms as have been adopted in the United Kingdom non-metropolitan territories. The limits placed upon its exercise by section 44 (1) (b) of the 1965 Act in Uganda are also the same as those which have been enacted in the said territories. The complainant has not, in the view of the Committee, offered any evidence to show that the situation in this respect in Uganda differs from that normally subsisting elsewhere or that the provisions criticised infringe the exercise of trade union rights.
  154. 154 The Committee therefore recommends the Governing Body to decide that these allegations do not call for further examination.

The Committee's recommendations

1. 155. With regard to the case as a whole the Committee recommends the Governing Body:
   • (a) to decide that the allegations relating to the registration of trade union branches, to the payment of union officers' fines and penalties, and to picketing do not, for the reasons indicated in paragraphs 129, 148 and 153 above, call for further examination;
   • (b) to decide, with regard to the allegations relating to the registration of trade unions:
   • (i) to draw the attention of the Government of Uganda to the importance which it has always attached to the generally accepted principles that workers should have the right to form and join organisations of their own choosing without previous authorisation and without interference on the part of the public authorities and that the law of the land should not be such as to impair, nor should it be so applied as to impair, the exercise of this right;
   • (ii) to express the view that the powers accorded to the Registrar of Trade Unions under section 5 (1) (d) of the Trade Unions Act, 1965, are not compatible with those generally accepted principles;
   • (iii) to suggest to the Government that it may consider amending its legislation in order to give full effect to the principles noted in clause (i) of this subparagraph;
   • (c) to decide, with regard to the allegations relating to the supervision of the activities of trade unions:
   • (i) to draw the attention of the Government to the importance which it has always attached to the generally accepted principles that workers' and employers' organisations should have the right to organise their administration and activities without any interference on the part of the public authorities which would restrict this right or impede its lawful exercise, and that such organisations should not be liable to be dissolved by administrative authority;
   • (ii) to express the view that the provisions of sections 53 to 59 of the Uganda Trade Unions Act, 1965, are not in accordance with the foregoing principles;
   • (iii) to call the Government's attention to the considerations set forth in paragraphs 141 to 144 above and to suggest that it may care to re-examine sections 53 to 59 of the Act in the light of those considerations with a view to determining what amendments may be desirable in order to give effect to the generally accepted principles enumerated in clause (i) of this subparagraph;
   • (d) to request the Government to be good enough to keep the Governing Body informed of any further developments in the matter.