ILO is a specialized agency of the United Nations
ILO-en-strap
[an error occurred while processing this directive]

GB.269/4
269th Session
Geneva, June 1997

FOURTH ITEM ON THE AGENDA

307th Report of the Committee on Freedom of Association

Contents

Introduction

Case No. 1872 (Argentina): Definitive report

The Committee's recommendations

Case No. 1887 (Argentina): Interim report

The Committee's recommendation

Case No. 1899 (Argentina): Report in which the Committee requests to be kept informed of developments

The Committee's recommendations

Case No. 1873 (Barbados): Interim report

The Committee's recommendations

Case No. 1850 (Congo): Report in which the Committee requests to be kept informed of developments

The Committee's recommendations

Case No. 1905 (Democratic Republic of the Congo): Report in which the Committee requests to be kept informed of developments

The Committee's recommendations

Case No. 1910 (Democratic Republic of the Congo): Report in which the Committee requests to be kept informed of developments

The Committee's recommendations

Case No. 1865 (Republic of Korea): Interim report

The Committee's recommendations

Case No. 1918 (Croatia): Report in which the Committee requests to be kept informed of developments

The Committee's recommendation

Case No. 1851 (Djibouti): Interim report

The Committee's recommendations

Cases Nos. 1512, 1539, 1595, 1740, 1778 and 1786 (Guatemala):

Interim report

The Committee's recommendations

Case No. 1823 (Guatemala): Report in which the Committee requests to be kept informed of developments

The Committee's recommendations

Case No. 1876 (Guatemala): Interim report

The Committee's recommendations

Case No. 1898 (Guatemala): Definitive report

The Committee's recommendations

Case No. 1863 (Guinea): Report in which the Committee requests to be kept informed of developments

The Committee's recommendations

Case No. 1890 (India): Report in which the Committee requests to be kept informed of developments

The Committee's recommendations

Case No. 1877 (Morocco): Report in which the Committee requests to be kept informed of developments

The Committee's recommendations

Case No. 1907 (Mexico): Report in which the Committee requests to be kept informed of developments

The Committee's recommendation

Case No. 1864 (Paraguay): Report in which the Committee requests to be kept informed of developments

The Committee's recommendations

Case No. 1855 (Peru): Definitive report

The Committee's recommendations

Case No. 1878 (Peru): Report in which the Committee requests to be kept informed of developments

The Committee's recommendations

Case No. 1886 (Uruguay): Report in which the Committee requests to be kept informed of developments

The Committee's recommendations

Case No. 1812 (Venezuela): Interim report

The Committee's recommendation

Case No. 1909 (Zimbabwe): Definitive report

The Committee's recommendations

Introduction

1. The Committee on Freedom of Association, set up by the Governing Body at its 117th Session (November 1951), met at the International Labour Office, Geneva, on 29 and 30 May and 6 June 1997, under the chairmanship of Professor Max Rood.

2. The members of Argentinian, Indian, Mexican and Zimbabwean nationalities were not present during the examination of the cases relating to Argentina (Cases Nos. 1872, 1887 and 1889), India (Case No. 1890), Mexico (Case No. 1907) and Zimbabwe (Case No. 1909), respectively.

* * *

3. Currently, there are 67 cases before the Committee, in which complaints have been submitted to the governments concerned for observations. At its present meeting, the Committee examined 29 cases on the merits, reaching definitive conclusions in 17 cases and interim conclusions in 12 cases; the remaining cases were adjourned for reasons set out in the following paragraphs.

New cases

4. The Committee adjourned until its next meeting the examination of the following cases: Nos. 1922 (Djibouti), 1924 (Argentina), 1925 (Colombia), 1926 (Peru), 1927 (Mexico) and 1928 (Canada/Manitoba), because it is awaiting information and observations from the Governments concerned. All these cases relate to complaints submitted since the last meeting of the Committee.

Observations requested from governments

5. The Committee is still awaiting observations or information from the Governments concerned in the following cases: Nos. 1787 (Colombia), 1805 (Cuba), 1843 (Sudan), 1867 (Argentina), 1884 (Swaziland), 1906 (Peru), 1908 (Ethiopia), 1911 (Ecuador), 1915 (Ecuador) and 1916 (Colombia). In Case No. 1852 (United Kingdom), for which the Committee has already received observations, the new Government indicated that it intended to present its own observations.

Observations requested from governments and complainants

6. In Case No. 1913 (Panama), the Committee decided to ask for additional information from the complainant and the Government in order to reach a decision in full knowledge of all the facts.

Partial information received from governments

7. In Cases Nos. 1835 (Czech Republic), 1880 (Peru), 1912 (United Kingdom/Isle of Man) and 1914 (Philippines), the Governments have sent partial information on the allegations made. The Committee requests all of these Governments to send the remaining information without delay so that it can examine these cases in full knowledge of all the facts.

Observations received from governments

8. As regards Cases Nos. 1773 (Indonesia), 1897 (Japan), 1917 (Comoros), 1920 (Lebanon) and 1923 (Croatia), the Committee has very recently received the Governments' observations and intends to examine the substance of these cases at its next meeting. In Case No. 1812 (Venezuela) for which it received the Government's observations, the Committee decided to ask the complainant to provide additional information so that it could make a decision on the receivability of the complaint.

Urgent appeals

9. As regards Cases Nos. 1869 (Latvia), 1888 (Ethiopia), 1892 (Guatemala), 1894 (Mauritania), 1895 (Venezuela), 1900 (Canada/Ontario), 1902 (Venezuela), 1919 (Spain) and 1921 (Niger), the Committee observes that, despite the time which has elapsed since the presentation of these complaints or since their last examination, it has not received the Governments' complete observations. The Committee draws the attention of all these Governments to the fact that, in accordance with the procedural rules set out in paragraph 17 of its 127th Report, approved by the Governing Body, it may present a report on the substance of these cases, even if the remaining observations or information requested from the Governments have not been received in due time. The Committee accordingly requests the Governments to transmit their observations or information as a matter of urgency.

* * *

Withdrawal of a complaint

10. In Case No. 1881 (Argentina), the complainant -- the Banking Association -- has sent a communication dated 24 April 1997 requesting the withdrawal of its complaint since the issue which had led to the complaint has been resolved. The Committee takes note of this information with interest. Having no reason to doubt that the decision of the complainant was taken in full independence, the Committee decides to close the case.

Irreceivable case

11. In respect of a representation concerning the violation of trade union rights in Denmark, transmitted by a law firm on behalf of the Association of SiD at Ri-bus in Esbjerg, the Association of Dustmen in Arhus, the Joined Association at Gate Gourmet, the Association of Scaffolders in Arhus, the Joined Pedagogic Associations of Tarnby and Dragor, the Association of Workers of the Danish Socialist People's Party, the National Association of Workers of the Danish Socialist People's Party and the Association of Brewers at the Ceres Breweries in Arhus, the Committee has concluded that none of the complainants fully meets the criteria of a national workers' organization directly interested in the matter and therefore considers that according to its procedure, it cannot examine the substance of this communication.

Transmission of cases to the Committee of Experts

12. The Committee draws the legislative aspects of the following cases to the attention of the Committee of Experts on the Application of Conventions and Recommendations: Argentina (Cases Nos. 1872 and 1899), Guatemala (Case No. 1898) and Morocco (Case No. 1877).

Effect given to the recommendations of the Committee
and the Governing Body

Case No. 1870 (Congo)

13. The Committee examined this case at its November 1996 meeting. The Committee had requested the Government to keep it informed of the measures taken to reinstate the trade unionists dismissed after strikes in protest against the lack of consultation of trade union organizations in the privatization process of a number of enterprises in the public sector and against the policy of structural adjustment, and to free the trade unionists imprisoned or sentenced for strike action -- more specifically Mr. Tchicaya and Mr. Mampuya -- as well as trade unionists from postal and telecommunications workers' unions affiliated to the Confederation of Free and Autonomous Trade Unions of Congo (COSYLAC), i.e. Mr. Lessita Otangui, Secretary-General of the Postal and Telecommunications Workers' Federation (FESYPOSTEL), Mr. Oba René Blanchard, President of the Postal and Telecommunications Workers' Trade Union (SYLIPOSTEL), Mr. Odzongo Médard from FESYPOSTEL, and Mr. Bouya Bernard from the Telecommunications Trade Union (SYNATEL), sentenced on 14 February 1996 to four months' imprisonment and a fine of 50,000 CFA francs [see 305th Report, paras. 134 to 147].

14. In a communication dated 14 November 1996, the Government states that, concerning the strike of January 1996, it agreed to the request from the workers' organizations and organized meetings under the chairmanship of the Prime Minister in order to explain developments in the privatization process to the representatives of the grass-roots trade unions. Following these meetings, the decision was taken to increase the number of trade union representatives on the privatization committee. In spite of this concession, the grass-roots trade unions, in disagreement with their trade union federations, demanded that the privatization committee be dissolved. As the Government had raised an objection to this claim, which was not included in the agenda of the negotiations, it was surprised by the strike subsequently called in all the major enterprises due for privatization. Inasmuch as an agreement had been reached on the basic claim of the trade unions, the Government felt that this strike -- which was not approved by the trade union federations -- was unfounded and it declared it illegal. This did not prevent the dismissed workers from all being reinstated in their respective enterprises.

15. Concerning the arrest and sentencing of trade unionists, the Government states that the trade unionists arrested and imprisoned had been duly prosecuted. Four trade unionists (Mr. Lessita Otangui, Mr. Oba René Blanchard, Mr. Odzongo Médard and Mr. Bouya Bernard) had been found guilty of infringing the freedom to work and sentenced to four month's imprisonment by the Second Criminal Court of the Brazzaville High Court. However, the trade unionists in question had obtained a reduction in their sentences and been released. Furthermore, a number of trade unionists were ordered to appear before the 32nd Magistrate's Court of the High Court for having destroyed state furniture and property. These trade unionists were released on bail while awaiting final judgement which should be handed down in the near future.

16. The Committee takes note of this information. It notes with interest that, according to the Government, the trade unionists dismissed for strike action have been reinstated in their jobs and that the four trade union leaders sentenced to four months' imprisonment for infringing the right to work obtained a reduction in their sentences and were released following the publication of a Presidential Decree of 20 May 1996 after having served two months of their sentence. The Committee nevertheless notes with concern that, according to the Government itself, legal proceedings are still under way against a number of trade unionists and a judgement is to be handed down. The Committee has expressed the opinion that penal sanctions should only be imposed regarding strikes, where there are violations of strike prohibitions which are themselves in conformity with the principles of freedom of association. All penalties in respect of illegitimate actions linked to strikes should be proportionate to the offence or fault committed and the authorities should not have recourse to measures of imprisonment for the mere fact of organizing or participating in a peaceful strike. The Committee requests the Government to send it a copy of all the judgements handed down in this case.

Case No. 1818 (Democratic Republic of the Congo)

17. The Committee examined this case at its November 1995 meeting [see 300th Report, paras. 350 to 370]. It had requested the Government to provide information on the condition of trade union members arrested during a labour dispute in the civil service in March 1995; to carry out an independent and impartial inquiry concerning the ill-treatment and torture allegedly meted out to a number of trade unionists who were duly named; to allow trade unionists dismissed on account of their trade union activities to be reinstated in their posts and to refrain from hampering the formation of trade union organizations.

18. In a communication dated 5 March 1997, the Government denies the arbitrary nature of the trade unionists' arrests. It points out that the arrests made on 24 March 1995 were preventive measures designed to guarantee public law and order. The Government explains that on 10 March 1995, a group of state officials had undermined public safety by carrying out violent demonstrations and that the authorities had taken preventive measures to safeguard the peace and held a number of demonstrators in custody. The competent judicial authorities, to which the matter had been referred, had supervised the conditions under which those concerned were held in custody. Nevertheless, the Government had intervened to request that custody be ended and that the trade unionists be immediately released. Concerning the trade unionists dismissed on account of their trade union activities, the Government states that it will order an inquiry to examine the facts and restore social justice. Furthermore, the Ministry of Labour and Social Welfare maintains that it has never refused the registration of a trade union whose scope is covered by the provisions of section 1 of the Labour Code.

19. The Committee takes note of this information. Recalling that no person should be subjected to anti-union discrimination on account of his or her legitimate trade union activities, the Committee requests the Government to keep it informed of the measures actually taken to guarantee the reinstatement of the trade unionists suspended or dismissed for having taken part in a strike. Furthermore, the Committee once again urges the Government to order immediately an independent and impartial inquiry concerning the ill-treatment allegedly meted out to a number of trade unionists in prison, especially with respect to the lashes of the whip given to Mr. Edouard Ngandu Mupidwa, a member of the Democratic Labour Confederation (CDT), at Ligwala in March 1995, and the alleged torture of Mrs. Muadi Kazongo, Mr. Odeon Mbaku and Mr. Mananua. It requests it to communicate the findings of the inquiry and the measures taken, including compensation for damages suffered in the event of the allegations of ill-treatment against these trade unionists being acknowledged.

Case No. 1833 (Democratic Republic of the Congo)

20. The Committee examined this case at its March 1996 meeting [See 302nd Report, paras. 535 to 554]. The Committee had requested the Government to keep it informed of developments on the situation of the trade unionists of the General Tax Directorate (DGC) arrested after a dispute with the Director-General of this public service, and specifically to indicate whether legal proceedings had been brought against them and what had been the outcome. The Committee had also requested the Government to submit its observations as soon as possible on the refusal of the DGC to undertake negotiations with the staff.

21. In a communication dated 5 March 1997, the Government explains that the staff of the DGC have the trade union status of public officials and that, on account of the prevailing conditions, trade union elections in the public service have not yet been organized. The Government assures that this situation will be resolved in the near future but that in the present context, it raises the problem of the representation of staff in most of the public sector services. According to the Government, the temporary trade union committee, which had been set up at the DGC, had not been established in accordance with the spirit of trade union pluralism which prevails in the country. Consequently, the responsible authority, i.e. the Ministry of Finance, had not recognized the existence of the said committee and requested the Director-General of the DGC to make inquiries with the Ministry of Public Service about the procedures his organization should take to have a duly elected trade union delegation. Thereupon, the members of the temporary trade union committee called upon the workers in the DGC to take collective strike action without complying with the procedure. A strike was therefore held on 17 April 1995, which paralysed the essential service of the DGC and disrupted public law and order. Consequently, two members of the staff of DGC, responsible for the occurrences, were sentenced on 7 August 1995 by the Court of First Instance of Gombe in Kinshasa to two months' imprisonment. After having served their sentences, those concerned started working again at the DGC. The Government gives its assurance that, to avoid such violations recurring in the future, experts from the Ministry of Labour will organize study days with the services concerned on the principles of freedom of association.

22. The Committee notes this information. Considering that no one should be deprived of their freedom or be subject to penal sanctions for the mere fact of organizing or participating in a peaceful strike [see para. 604 of the Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996], the Committee regrets that the trade unionists instigating the strike were sentenced. Furthermore, expressing the hope that trade union elections will be held without delay, the Committee firmly hopes that collective bargaining with the representative trade union organizations will resume in the near future in the public tax service with a view to settle the employment conditions of these public employees. The Committee requests the Government to keep it informed of the outcome of the negotiations in this sector.

Cases Nos. 1594 and 1846 (Côte d'Ivoire)

23. At its March 1997 meeting, the Committee had requested the Government to take the necessary measures to ensure: (1) that the workers dismissed at Irho Lame due to a labour dispute dating from May 1993 be reinstated as soon as possible; (2) that Messrs Hassan Daboré and Diebre Boukary, who were in preventive detention further to a collective labour dispute dating from January 1995, be released immediately; and (3) that the social elections at the Autonomous Port of Abidjan be held as soon as possible and to keep it informed in this regard.

24. In a communication dated 5 May 1997, the Government states with regard to the first point that it has never refused the reinstatement of the dismissed workers and that it has tried to reconcile the parties through concrete proposals despite the intransigency of the Trade Union Federation Dignité. It once again reiterates that the management after having hired new workers went ahead with the restructuring which regrouped together agronomic research units. If the dismissed workers consider that their rights have been impaired they can appeal to the courts to have these rights restored. On the second point, the Government adds that Messrs Diebre Boukary and Hassan Daboré were released provisionally on 13 March 1997 given that they no longer constituted a threat for the enterprise. The Government provides a copy of the release orders. According to these, the victims declared unanimously during the course of the inquiry that Mr. Hassan Daboré had not taken part in the acts for which he was accused. As for Mr. Diebre Boukary, it appears that his detention is no longer necessary now that the truth has been ascertained. Finally on the last point, the Government indicates that the social elections at the Autonomous Port of Abidjan have not yet taken place due to a disagreement between the different trade unions on 24 April 1997. Some of these trade unions wanted the elections to take place immediately and the others asked for them to be delayed since they wished for a dockers' collective agreement to be drawn up before. The Government states that a reconciliation meeting took place on 28 April 1997 before the competent authorities and that a deadline has been given to the trade unions to agree on a date for the elections before 5 June 1997.

25. The Committee notes with interest that the trade unionists Messrs Hassan Daboré and Diebre Boukary were released in March 1997. It observes, however, that no charge had been made against Mr. Hassan Daboré and that according to the investigating magistrate himself Mr. Diebre Boukary's detention was no longer necessary now that the truth had been ascertained. Noting with deep concern that although these two trade unionists were released, they had been held for more than two years' detention without trial, the Committee recalls that the continued detention of trade unionists without bringing them to trial may constitute a serious impediment to the exercise of trade union rights and that justice delayed is justice denied. Concerning the reinstatement of the workers dismissed at Irho Lame in 1993, the Committee reiterates its previous request to the Government to indicate if the workers who considered that their rights had been impaired appealed to the courts in order to have these rights restored, and to keep it informed in this regard. Finally, the Committee recalls that the request to hold social elections at the Autonomous Port of Abidjan dates from 1993. Consequently, it urges the Government to ensure that these elections are held immediately and to keep it informed of the outcome thereof.

Case No. 1725 (Denmark)

26. When it last examined this case at its March 1994 meeting [see 292nd Report, paras. 197 to 229], the Committee had considered that certain aspects of Danish legislation and national practice were not completely in conformity with the principle of free bargaining of collective agreements with a view to regulating the terms and conditions of employment by means of collective agreements, as recognized in Article 4 of Convention No. 98. The Committee had reached this conclusion particularly in respect of section 12 of the Conciliation in Industrial Disputes Act which allowed the public conciliator to link various draft settlements of all occupational fields in a single draft settlement covering, inter alia, collective agreements for which the parties themselves could not agree to a renewal. The Committee had therefore invited the Government and the social partners to re-examine the legislation and practice in this regard.

27. In a communication dated 11 March 1996, the complainant (the Danish Union of Journalists) submitted a representation under article 24 of the ILO Constitution. The Governing Body, which declared the representation receivable, referred it to the Committee for examination in the context of the follow-up of Case No. 1725 since it raised the same issues as those raised in this case.

28. In a communication dated 14 April 1997, the Government indicates that it has amended the Conciliation in Industrial Disputes Act on the basis of the Committee's recommendations. In this respect, the Government refers to section 12(3) of the Act which now stipulates as follows: "A conciliation proposal may only be combined with other conciliation proposals if the negotiation possibilities within the field concerned are considered to have been exhausted. The Public conciliator decides whether this condition has been fulfilled." The Government adds that the Act has been further amended to relax the requirements as to the qualified majority needed to reject a conciliation proposal. The Government maintains, however, that the rule concerning the combination of proposals is a necessary element in the Danish industrial relations system, due, inter alia, to the fact that workers are organized into various trade unions at the enterprise level according to the nature of their work.

29. The Committee notes that section 12 of the Conciliation in Industrial Disputes Act as amended provides that, in the future, conciliation proposals from various occupational fields may be combined only if the Public conciliator is of the view that negotiation possibilities have been exhausted. The Committee notes, however, that under this system it will still be possible for an overall draft settlement to cover, inter alia, collective agreements involving an entire sector of activity even if the organization representing most of the workers in this sector rejects the overall draft settlement. The Committee would therefore recall, as it has done previously, that the extension of an agreement to an entire sector of activity -- in this case, journalism -- contrary to the views of the organization representing most of the workers in a category covered by the extended agreement is liable to limit the right of free collective bargaining of that majority organization.

Case No. 1874 (El Salvador)

30. The Committee examined this case at its November 1996 meeting [see 305th Report, paras. 254 to 272, approved by the Governing Body at its 267th Session (November 1996)] when it presented the following recommendations on the matters still outstanding [see 305th Report, para. 272]:

31. In its communications dated 21 April and 12 May 1997 the Government states that the workers at the Rosales Hospital are directly employed by the central Government and are governed by the Salaries and General Budget Act. Consequently, they are not protected by the Labour Code. The Government adds that the members of the Nursing Personnel Craft Union of El Salvador are supposed to be workers who look after sick people but that the latest membership lists consisted of other workers (watchmen, metalworkers, plumbers, etc.) and only a few nurses. Since this is a violation of section 209 of the Labour Code, the executive board was not authorized to take up office. The appeal against this decision was denied on 14 August 1996. The executive board may be elected once a meeting is held of people who meet the requirements of the law and of the union's statutes. As regards the transfer of union officials, the Government repeats its position that this is not a reprisal for joining the aforementioned union but in keeping with the requirements of the service and that the transfers were ordered pursuant to section 37 of the Civil Service Act which states that officials or employees may be transferred to a similar post even without their consent at the convenience of the public or municipal administration, provided that the transfer is within the same locality.

32. The Committee notes the Government's observations which by and large reiterate its earlier statements. The Committee deeply regrets that the Government has not complied with its recommendations, stresses that the allegations relate to highly important issues such as the right to establish trade union organizations in the public sector and the right not to be subjected to anti-union discrimination, and finds itself obliged to repeat its previous recommendations. The Committee therefore urges the Government: (1) to take the necessary steps so that the legislation guarantees the right to establish trade union organizations in the public sector; (2) to recognize the transformation of the Nursing Personnel Craft Union of El Salvador into an industrial trade union; (3) to make reparation for the acts of anti-union discrimination committed in the Rosales Hospital.

Case No. 1793 (Nigeria)

33. During its examination of this case in June 1996, the Committee had urged the Government to take the necessary measures to ensure that Mr. Kokori, General Secretary of NUPENG, was released immediately, that Decrees Nos. 9 and 10, dissolving the Executive Council of the NLC, NUPENG and PENGASSAN, were repealed immediately and to allow independently elected officials to exercise their trade union functions once again [see 304th Report, para. 13]. In view of the absence of the Government's response for the Committee's report of November 1996, the Governing Body had decided to address an urgent appeal to the Government of Nigeria, inviting it to reply as soon as possible to all the requests made since November 1995 with a view to authorizing an ILO mission to examine issues dealt with in the various complaints and to visit detained trade union leaders without hindrance, thus allowing the mission to present its report to the Committee as soon as possible. A communication in this regard had been sent to the Government on 26 November 1996 and then a reminder had been addressed to it on 5 February 1997.

34. In February 1997, the Committee took note of several new decrees and texts which appeared to indicate an expansive and systematic approach to diminishing trade union rights in Nigeria. Noting with ever-increasing concern the persistent deterioration of trade union rights in Nigeria, the Committee had reiterated, in the strongest terms, the Governing Body's appeal to the Government to accept an ILO mission at the earliest possible date to examine the outstanding matters of this case.

35. The Committee must once again note with deep regret that in spite of the assurances given during the last session of the Governing Body, the Government has not for the moment given any written reply to the requests of the Committee and the Governing Body or to the communications addressed by the Office on 1 April and 16 May 1997. The Committee notes, however, that the Ministry of Labour has indicated to the ILO office in Lagos that it is willing to receive a mission but that this would not be possible during the period preceding the International Labour Conference. In these conditions, the Committee strongly reiterates its request for a mission to examine issues raised in the case and in particular to visit detained trade union leaders. It urges the Government to respond positively to this request without any further delay.

Case No. 1698 (New Zealand)

36. During its last examination of this case at its meeting in November 1996, the Committee requested the Government to continue to keep it informed of any other relevant judgements rendered concerning the implementation of the Employment Contracts Act as well as of any developments in the discussions held with the New Zealand Council of Trade Unions (NZCTU) and the New Zealand Employers' Federation (NZEF) in this regard. The Committee also reaffirmed its previous recommendations and requested the Government to take the necessary measures to implement them. [See 305th Report, para. 50.]

37. In a communication dated 26 February 1997, the Government indicates that there have been no further significant cases relating to freedom of association since its last communication, but that it will continue to keep the Committee informed of any further developments in the case-law as they occur. The Government also states that the new coalition Government has agreed to include proposals to introduce a concept of "fair bargaining" into the Employment Contracts Act (ECA), perhaps through the incorporation of recent court decisions relating to issues such as the obligation to respect the choice of bargaining agent and not undermine the bargaining process by bypassing the agent, thus consolidating the principles established in the Capital Coast Health and subsequent related cases. All interested groups, including employer and employee organizations, will be invited to make submissions as part of the usual process of considering draft legislation. As concerns the recommendation that workers and their organizations should be able to call for industrial action in support of multi-employer collective employment contracts, the Government reiterates that there are no plans to remove the prohibition on such action set out in section 63(e) of the ECA since it considers that this provision provides a balance between employees' right to strike and employers' rights not to have to face strike action and incur losses due to the actions of other employers over which they have no control or to be bound into arrangements with competing businesses.

38. The Committee notes this information, particularly as concerns the coalition agreement to introduce the concept of "fair bargaining" into the ECA and requests the Government to keep it informed of the progress made in this regard. As concerns the Committee's recommendation with respect to industrial action in support of multi-employer collective employment contracts [295th Report, para. 261(c)], the Committee once again recalls that the determination of the bargaining level is a matter to be left to the discretion of the parties and that legislation should not constitute an obstacle to collective bargaining at the industry level, whereas section 63(e) of the ECA essentially removes the means of pressure that may be applied for the determination of that level. It therefore reiterates its previous conclusions in this case that workers and their organizations should be able to call for industrial action in support of multi-employer contracts. It requests the Government to keep it informed of any measures taken in the future to amend section 63(e) in this respect.

Case No. 1903 (Pakistan)

39. During its last examination of this case in March 1997 [see 306th Report, paras. 477-495], the Committee requested the Government to confirm that no charges had been maintained against trade unionists and workers who were detained and subsequently released following a demonstration at the Pak China Fertilizer Plant. The Government was also urged to revoke its decision to suspend the activities of the Pak China Fertilizer Limited Employees' Union, to register it once again and to guarantee that its trade union activities could be carried out normally.

40. In its communication dated 29 April 1997, the Government advised the Committee that the decision to suspend the activities of the Pak China Fertilizer Limited Employees' Union had been revoked by the Industrial Relations Commission (NIRC) on appeal. Consequently, the Registrar of Trade Unions reinstated the Union on 5 April 1997. Regarding the outstanding charges against workers of the Pak China Fertilizer Ltd. the Government states that with the exception of the President of the Union, Mr. Hakam Khan, and the General Secretary of the Union, Mr. Manzoor Hussain, whose services were terminated due to misconduct, there are no outstanding charges. The Government also notes that an appeal of the decision to dismiss for misconduct is presently before the local labour court.

41. The Committee takes due note of this information and requests the Government to forward to it a copy of the decision of the NIRC. Regarding the dismissal of Messrs Hakam Khan and Manzoor Hussain, the Committee requests the Government to keep it informed of the status of the labour court proceedings and any further appeal on this matter, and to forward to it a copy of the judgement as soon as it is rendered.

Case No. 1813 (Peru)

42. The Committee last examined this case concerning the death, assault and arrest of trade unionists at its March 1996 meeting [see 302nd Report, paras. 64 and 65]. At that time, after noting that the detained workers (Felix Castillo Pérez, Elí Pando Malpartida, Antonio Yupanqui Oré, José Palacios Huamanchuco, Felipe Gutiérrez Cárdenas and Julio Camacho Díaz) had been released but after being charged the Committee asked the Government to keep it informed of the outcome of the proceedings. The Committee also requested the Government to inform it of developments in the judicial investigation into the death of trade unionists Alipio Chauca de la Cruz and Juan Marcos Donayre Cisneros and into the injuries sustained by other workers from shots fired by the CORDECALLAO security guards.

43. In a communication dated 26 March 1997, the Government states that Felix Castillo Pérez, Elí Pando Malpartida, Antonio Yupanqui Oré, José Palacios Huamanchuco, Felipe Gutiérrez Cárdenas and Julio Camacho Díaz are charged with the offence of disturbing the peace and that the proceedings are currently at the allegations stage. The Government also states that, in the judicial investigation into the death of Alipio Chauca de la Cruz and Juan Marcos Donayre Cisneros, three people have been charged with causing grievous bodily harm resulting in the death of the trade unionists, with endangering law and order and with illegal possession of firearms. The Committee notes this information and requests the Government to keep it informed of the outcome of these judicial proceedings.

* * *

44. Finally, as regards Cases Nos. 1509 (Brazil), 1581 (Thailand), 1618 (United Kingdom), 1623 (Bulgaria), 1687 (Morocco), 1691 (Morocco), 1712 (Morocco), 1719 (Nicaragua), 1726 (Pakistan), 1761 (Colombia), 1796 (Peru), 1891 (China), 1825 (Morocco), 1826 (Philippines), 1834 (Kazakstan), 1837 (Argentina), 1847 (Guatemala), 1849 (Belarus), 1854 (India), 1857 (Chad), 1858 (France/Polynesia), 1885 (Belarus), 1891 (Romania) and 1896 (Colombia), the Committee requests the Governments concerned to keep it informed of any developments relating to these cases. It hopes that these Governments will quickly furnish the information requested. Furthermore, the Committee has just received information relating to Cases Nos. 1777 (Argentina), 1785 (Poland), 1809 and 1883 (Kenya), 1824 (El Salvador), 1856 (Uruguay), as well as 1862 (Bangladesh), which it will examine at its next meeting.

* * *

Case No. 1872

DEFINITIVE REPORT

Complaint against the Government of Argentina
presented by
the Workers' Union of the National Institute of Social Services for Pensioners and Retired Workers (UTI)

Allegations: Refusal of trade union personality

45. The complaint in this case is contained in a communication from the Workers' Union of the National Institute of Social Services for Pensioners and Retired Workers (UTI) of February 1996. The Government sent its observations in a communication dated 15 May 1997.

46. Argentina has ratified 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).

A. The complainant's allegations

47. In its communication of February 1996, the Workers' Union of the National Institute of Social Services for Pensioners and Retired Workers (UTI) explained that it was set up in 1983 by the workers of the National Institute of Social Services for Pensioners and Retired Workers (PAMI) (according to the complainant, a non-state entity governed by public law), and that it has been requesting recognition for purposes of, inter alia, collective bargaining, since 1985 with no success. The complainant describes in detail the administrative and judicial formalities it has completed since 1985. In particular it states that in 1991 the Ministry refused UTI's request for recognition, pointing to the existence of two other trade unions that were recognized in UTI's sphere of activity. Nevertheless, in February 1992 the judicial authorities expressed the opinion that "the legal nature of the PAMI Institute is an obstacle to its workers being represented by the trade union organizations mentioned in the resolution of the Ministry of Labour and Social Security (UPCN and ATE)". The complainant declares that subsequently, in November 1992, the Ministry of Labour and Social Security stipulated that UTI should be granted recognition, and that in November 1993 the judicial authorities indicated that the Ministry of Labour and Social Security should hand down a decision on its request for recognition. In addition, the complainant states that in May 1994 the Inspection Department of the Ministry of Labour and Social Security observed that of a total of 11,449 workers at the Institute, 4,437 were members of the complainant, 1,848 of UPCN and 873 of ATE, and that in November 1994 the Legal Technical Department of the National Directorate of Trade Union Associations ruled that UTI should be granted recognition. The complainant points out that the Ministry of Labour has not yet prepared a resolution in this connection and that as UTI still has not been recognized, the workers of the PAMI Institute have no collective agreement and no social security provisions of their own. (The complainant annexes copies of the administrative and judicial resolutions to its complaint.)

B. The Government's reply

48. In its communication dated 15 May 1997, the Government annexes a resolution of the Ministry of Labour and Social Security dated 15 May 1997 concerning the allegations presented by the complainant relating to the refusal to grant recognition to the Workers' Union of the National Institute of Social Services for Pensioners and Retired Workers (UTI) for the purposes of, inter alia, collective bargaining. The resolution in question provides in particular the following:

... that the petitioner, the Workers' Union of the National Institute of Social Services for Pensioners and Retired Workers (UTI) has been registered as a trade union association since 25 September 1984 and groups together civil servants who belong to the National Institute of Social Services for Pensioners and Retired Workers. It is therefore an enterprise trade union.

That, according to the Report of the Department responsible for the registration of trade union entities, the State Workers' Association (ATE) does not represent the staff of the Institute in question.

That, as regards the Union of State Employees of the Nation (UPCN), this entity has been granted recognition (No. 95) by virtue of Resolution ST and P No. 34/48.

That, by virtue of Resolution MT and SS No. 725 of 3 September 1993, the text of article 1 of the statutes which sets out the geographical area and the persons falling within the scope of this union, has been approved.

That, subsequently, Resolution MT and SS No. 1028 dated 19 December 1996 approved the text of the new statutes and affirmed that "the Union will continue to be recognized for the same geographical area and persons covered ..."

That this union comprises any other body and centralized or decentralized public entity whether it is a state entity or not at the national, provincial and/or municipal levels. The granting of recognition to this organization covers the staff of the Institute in question.

That, in analysing the characteristics of the trade union entities in question, and in order to decide on the request to grant recognition for purposes of, inter alia, collective bargaining to the enterprise trade union, it would be appropriate to take into consideration section 29 of Act No. 23551 which stipulates that: "A trade union at the enterprise level may be granted recognition only when another base-level trade union and/or a union does not already operate within the geographical area or the area of activity or category covered."

That, in analysing the annexed documentation, the reasons given in the file and the specific characteristics of the employer, it follows that the Union of State Employees of the Nation (UPCN) covers, as regards geographical area and persons covered by its recognition, the workers of the National Institute of Social Services for Pensioners and Retired Workers. Consequently, and very clearly, it would not be appropriate to accede to the request for recognition presented by the Workers' Union of the National Institute of Social Services for Pensioners and Retired Workers (UTI) given that it is a general provision of the Act and not an arbitrary decision by the authorities which prevents the recognition of this entity. Consequently, the Ministry of Labour and Social Security rejects the request for recognition presented by the Workers' Union of the National Institute of Social Services for Pensioners and Retired Workers (UTI)

C. The Committee's conclusions

49. The Committee observes that the allegations relate to the fact that the Workers' Union of the National Institute of Social Services for Pensioners and Retired Workers (UTI) has been refused the recognition it has been requesting since 1985 (only trade union organizations which are recognized have, inter alia, the right to collective bargaining and to the administration of social security benefits, i.e. the administration of medical insurance and other social benefits for workers).

50. The Committee observers that the resolution of the Ministry of Labour and Social Security dated 15 May 1997 states that (1) the Workers' Union of the National Institute of Social Services for Pensioners and Retired Workers (UTI) -- the complainant -- groups together civil servants who belong to the National Institute of Social Services for Pensioners and Retired Workers and that it is therefore a trade union at the enterprise level; (2) in 1996, the Ministry of Labour and Social Security approved the text of the new statutes of the Union of State Employees of the Nation (UPCN) which has been granted recognition for purposes of, inter alia, collective bargaining. These statutes, which set out the geographical area and the persons falling within the scope of this union, provide in particular that this union encompasses workers "of any other body and centralized or decentralized public entity whether it is a state entity or not at the national, provincial and/or municipal levels ..."; (3) section 29 of the Act on trade union associations stipulates that "a trade union at the enterprise level may be granted recognition only when another base-level trade union and/or a union does not already operate within the geographical area or the area of activity or category covered"; and (4) the UPCN includes, as regards geographical area and persons covered by its recognition, the staff of the National Institute of Social Services for Pensioners and Retired Workers, reason for which recognition was not granted to UTI.

51. The Committee notes that the documentation annexed to the complaint shows that (i) in 1992 the Ministry of Labour and Social Security indicated that recognition should be granted to UTI; (ii) in November 1993 the judicial authorities stipulated that the national Ministry of Labour should hand down a decision on the application for recognition; (iii) in May 1994 the Inspection Department of the Ministry of Labour and Social Security observed that of the Institute's 11,449 workers, 4,437 were members of UTI (almost 40 per cent of the total), 1,848 of UPC and 873 of ATE; and (iv) the Legal Technical Department of the National Directorate of Trade Union Associations stated that recognition should be granted to the Workers' Union of the National Institute of Social Services for Pensioners and Retired Workers.

52. This being the case, and taking into account all the administrative resolutions and judicial rulings pertaining to the granting of recognition to the complainant as well as the fact that this organization is clearly the most representative one, which is not refuted by the Government, the Committee urges the Government to take the necessary steps to grant recognition immediately to the Workers' Union of the National Institute of Social Services for Pensioners and Retired Workers (UTI), enabling it to negotiate collectively and exercise the other rights enjoyed by the most representative organizations. In this respect, observing that up to now recognition has been refused by virtue of section 29 of Act No. 23551 on trade union associations, the Committee must draw the Government's attention to the fact that, to the extent that this provision prevents the most representative trade union organizations in an enterprise from bargaining at the enterprise level, it is incompatible with the principles of freedom of association and collective bargaining. Consequently, the Committee further requests the Government to take the necessary measures to ensure that this provision of Act No. 23551 is amended. The Committee draws this aspect of the case to the attention of the Committee of Experts on the Application of Conventions and Recommendations.

53. Lastly, the Committee deplores the excessive length of time -- more than 11 years -- allowed to elapse before deciding whether or not to grant recognition to a trade union organization. Furthermore, it observes with concern that this is not the first time that it is examining complaints against the Government of Argentina in which there are allegations of excessive delays and red tape in the processing of the registration of a trade union organization or the granting of recognition [see 274th Report, Cases Nos. 1455, 1456, 1496 and 1515, para. 9; 286th Report, Case No. 1551, para. 57; and 306th Report, Case No. 1777, para. 15]. Given this situation, the Committee urges the Government to take measures to ensure that in future, when requests are made for the registration of an organization or the granting of recognition, the competent administrative authorities decide on the matter without unjustified delay.

The Committee's recommendations

54. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:

(a) The Committee urges the Government to take measures to ensure that recognition is granted immediately to the Workers' Union of the National Institute of Social Services for Pensioners and Retired Workers (UTI).

(b) The Committee urges the Government to take the necessary measures to ensure that in future, when an organization requests registration or the granting of recognition, the competent administrative authorities return their decisions without unjustified delay.

(c) The Committee requests the Government to take the necessary measures to ensure that section 29 of the Act on trade union associations is amended. It draws this aspect of the case to the attention of the Committee of Experts on the Application of Conventions and Recommendations.

Case No. 1887

INTERIM REPORT

Complaints against the Government of Argentina
presented by
-- the Tram-drivers' Union (UTA)
-- the Argentine Air Crew Association (AAA)
-- the National Truckers' Federation (FNTOCTAC)
-- the Union of Dredging and Marking Staff (SPEDB)
-- the Argentine Union of Private Teachers (SADOP)
-- the Argentine Federation of Pharmacy Workers (FATF)
-- the Argentine Federation of Printing Workers (FATI)
-- the Union of Employees of Courts of Law (UEJN)
-- the Centre of Overseas Captains and Merchant
Navy Officers (CCUOMM)
-- the Argentine Union of Mill Workers (UOMA)
-- the Association of Medical Advertising Agents of the
Argentine Republic (AAPMRA)
-- the Single Union of Workers in Advertising (SUP)
-- the Centre of Naval Radio Communications Chiefs
and Officers (CJONR)
-- the Association of Underground Supervisory Staff (APSESBA) and
-- the Argentine Television Union (SAT)
Allegations: Restrictions on the right to collective bargaining

55. The complaints in this case are contained in a communication dated 5 June 1996 from the Tram-drivers' Union (UTA), the Argentine Air Crew Association (AAA), the National Truckers' Federation (FNTOCTAC), the Union of Dredging and Marking Staff (SPEDB), the Argentine Union of Private Teachers (SADOP). the Argentine Federation of Pharmacy Workers (FATF), the Argentine Federation of Printing Workers (FATI), the Union of Employees of Courts of Law (UEJN), the Centre of Overseas Captains and Merchant Navy Officers (CCUOMM), the Argentine Union of Mill Workers (UOMA), the Association of Medical Advertising Agents of the Argentine Republic (AAPMRA), the Single Union of Workers in Advertising (SUP), the Centre of Naval Radio Communications Chiefs and Officers (CJONR), the Association of Underground Supervisory Staff (APSESBA), and the Argentine Television Union (SAT). The International Transport Workers Federation (ITF) associated itself with the complaint in a communication dated 4 September 1996. In January 1997 the Tram-drivers' Union (UTA) sent a communication containing new allegations.

56. The Government sent partial observations in communications dated 5 February and 9 May 1997.

57. Argentina has ratified 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).

A. The complainants' allegations

58. In its communication of 5 June 1996, the Tram-drivers' Union (UTA) and the other trade union organizations raise objections to Act No. 24522 on insolvency and bankruptcy which renders collective agreements in force ineffective and makes it compulsory to renegotiate new collective agreements. Specifically, the complainants object to the following sections of Act No. 24522:

Section 20, paragraphs 4, 5, 6 and 7

Labour contracts: The opening of bankruptcy proceedings renders collective agreements in force ineffective for a period of three years, or until the completion of the bankruptcy proceedings, whichever is the shorter.

During that period, labour relations shall be governed by individual contracts and by the Labour Contract Act.

The bankrupt party and the recognized trade union association shall negotiate an emergency collective agreement for the duration of the bankruptcy proceedings, up to a maximum of three years.

The conclusion of the bankruptcy proceedings for any reason, or their interruption sine die, shall put an end to the emergency collective agreement that may have been negotiated, and the corresponding collective agreements shall once again be in force.

Section 198, paragraph 3 (bankruptcy)

Collective labour agreements covering staff employed in the bankrupt establishment or enterprise shall cease to have any legal effect vis-à-vis the new owner and shall be renegotiated by the parties concerned.

59. The trade union organizations explain that in July 1994 a Framework Agreement on Employment, Productivity and Social Equity was signed by the Government, the employers' sector and the General Confederation of Labour (CGT) representing the labour sector, which, inter alia, set out the terms of the current reform of the law on bankruptcy. The complainants state that their representation by the CGT was a formal arrangement and no more, inasmuch as the workers' movement making up this Confederation did not at any time authorize the signatories to subscribe to any such agreement.

60. In its communication of January 1997, the UTA raises objections to the following Executive Decrees: Decree No. 1553/96 empowering the Ministry of Labour to revoke the registration of a collective labour agreement; Decree No. 1554/96 empowering the Ministry of Labour to determine the scope of collective bargaining; and Decree No. 1555/96 containing certain provisions regarding collective bargaining.

B. The Government's reply

61. In a communication dated 5 February 1997, the Government points out that the impugned law (Act No. 24522) is an Act proclaimed by the National Congress in the exercise of its constitutional powers and is based on the Framework Agreement on Employment, Productivity and Social Equity, a tripartite agreement in which the employers' and workers' sectors (through their most representative bodies) agreed with the national Government, inter alia, to undertake a reform of the insolvency and bankruptcy procedures in force in the country and to revise the juridical framework of collective bargaining. The provisions of sections 20 and 198 of Act No. 24522, which are impugned by the complainants, are the outcome of that agreement.

62. The Government states that the reasons behind the said Act are that insolvency and bankruptcy proceedings are exceptional circumstances and that the labour legislation should therefore address them in terms that are sufficiently broad to enable the employer to fulfil his or her obligations, on the one hand, and to help the workers recover the amounts due to them, on the other. Insolvency proceedings should endeavour to facilitate the continued operation of the enterprise and to maintain the workers' jobs. Similarly, in the case of bankruptcy, a purchaser should be sought for the bankrupt establishment or enterprise, essentially to avoid the disappearance of a source of employment. This is particularly important in an economic crisis such as is currently being experienced both internationally and nationally, because of its impact on employment. From the juridical standpoint, both bankruptcy and insolvency proceedings imply a substantial change in the circumstances under which the bankrupt employer entered into his or her original commitments and in the circumstances that prevailed when the collective agreements were concluded and while they remained in force. All these factors justify the revision of the applicable collective agreement. It does not in any way violate international labour Conventions Nos. 87, 98 and 154. Moreover, although section 20 of Act No. 24522 temporarily suspends the collective agreements in force for the reasons indicated (suspension is for a maximum of three years or for the duration of the bankruptcy proceedings, whichever is the shorter), it provides for the bankrupt establishment or enterprise and the recognized trade union to negotiate an emergency collective agreement for the duration of the proceedings, up to a maximum of three years. These agreements are negotiated directly between the trade union and the bankrupt employer, without the involvement of the trade union movement or bankruptcy courts, and leaves the parties considerable discretion. Finally, the Government states that the impugned sections of the Act are designed to protect the worker by facilitating the continued operation of the enterprise and the maintenance of the workers' jobs and, in the worst of cases, to enable to workers to recover the amounts due to them.

63. In its communication of 9 May 1997, the Government notes that the application of Decrees Nos. 1553, 1554 and 1555 has been suspended since they were the subject of a case before the Supreme Court. The Government states that it will be forwarding its observations on this matter shortly.

C. The Committee's conclusions

64. The Committee observes that in this case the complainants raise objections to certain provisions of Act No. 24522 on insolvency and bankruptcy which suspend the collective agreements in force and require the negotiation of new collective agreements. The Committee further notes that the Tram-drivers' Union (UTA) raises objections to Executive Decrees Nos. 1553/96, 1554/96 and 1555/96, on the grounds that they restrict the right to collective bargaining.

65. With regard to the impugned sections of Act No. 24522 on insolvency and bankruptcy, the Committee notes that the Government states in its reply that (i) the employers' and workers' sectors (through their most representative organizations) agreed with the Government to undertake a reform of the insolvency and bankruptcy procedure and that sections 20 and 198 of the said Act were drawn up in line with that agreement; (ii) the reasons behind the Act are that insolvency and bankruptcy proceedings are exceptional circumstances and that labour legislation should therefore address them in terms that are sufficiently broad to enable the employer to fulfil his or her obligations, on the one hand, and to help the workers recover the amounts due to them, on the other; (iii) from the juridical standpoint, both bankruptcy and insolvency proceedings imply a substantial change in the circumstances under which the bankrupt employer entered into his or her original commitments and in the circumstances that prevailed when the collective agreements were concluded; and (iv) although section 20 of the Act temporarily suspends the collective agreements (for a maximum of three years or for the duration of the proceedings, whichever is the shorter) the Act does provide for the possibility of negotiating an emergency collective agreement, without the involvement of the judicial authorities, and leaves the parties considerable discretion.

66. The Committee notes that the Act concerned does indeed provide that (i) in the event of insolvency proceedings (when an enterprise's liabilities are greater than its assets and the employer proposes an agreement with his or her creditors in order to pay his or her debts), a collective agreement for cases of crisis can be negotiated, the previous collective agreements being therefore repealed for three years -- or less if the proceedings are completed before; and (ii) in the case of bankruptcy the collective agreements cease to be in force and may be renegotiated by the parties concerned.

67. The Committee has always considered that collective agreements entered into freely by the parties must be respected and their renegotiation must not be imposed by law. In the present case, however, which refers to insolvency and bankruptcy proceedings, insisting on full compliance with the provisions of the collective agreement might threaten the continued operation of the enterprise and the maintenance of the workers' jobs. Moreover, the Committee notes that, according to the complainants and the Government, the General Confederation of Labour (CGT) -- of which the complainants are members and which is the most representative trade union -- did reach an agreement on the impugned provisions of the Act on insolvency and bankruptcy, although the complainants claim that the CGT did not have a mandate to accept any restrictions. Moreover, the Committee notes that the trade unions concerned can renegotiate the collective agreements which were repealed in a crisis situation. Consequently, the Committee considers that the Act does not violate Convention No. 98.

68. As to the alleged restriction of the right to collective bargaining under Decrees Nos. 1553/96, 1554/96 and 1555/96, the Committee observes that the Government has stated that it will forward its observations on this matter shortly and that the Decrees are suspended and are the subject of proceedings before the Supreme Court. Finally, the Committee requests the complainants to submit additional information regarding these allegations.

The Committee's recommendation

69. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendation:

REPORT IN WHICH THE COMMITTEE REQUESTS TO BE
KEPT INFORMED OF DEVELOPMENTS 

Complaint against the Government of Argentina
presented by
the Union of Education Workers of Río Negro (UNTER)
Allegations: Restrictions on the right to strike,
unilateral termination of collective agreements and
withholding of trade union dues

70. The complaint in this case is contained in a communication from the Union of Education Workers of Río Negro (UNTER) of August 1996. The Government sent its observations in a communication dated 15 April 1997.

71. Argentina has ratified 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).

A. The complainant's allegations

72. In its communication of August 1996, the Union of Education Workers of Río Negro (UNTER) objects to Resolution No. 203/96, issued on 14 February 1996 by the Río Negro Provincial Education Council, concerning the recruitment of teachers to replace striking staff, and Decrees Nos. 222/96 and 329/96 issued by the Executive of Río Negro province, regulating direct action by employees of the provincial public administration, decentralized bodies and autonomous bodies of the provincial Executive. The complainant states that the regulations at issue cannot be interpreted without taking into account the situation in law and in practice of provincial public employees, and that of education workers in particular. The complainant adds that public sector workers in Río Negro do not receive their salaries in due time and in the prescribed form, that there are delays in payment of up to six months, in addition to which they suffer the consequences of structural adjustment programmes, which have affected teachers as follows: teaching hours have been cut, over 1,500 teachers have lost their jobs, grades have been eliminated and schools closed, etc.

73. Specifically, the Resolution and Decrees at issue contain the following provisions:

Resolution No. 203/96 of the Provincial Education Council

CONSIDERING the possibility of direct action being taken by decision of teaching staff, and WHEREAS the continuity of educational services must be ensured; a political decision has been taken to recruit persons wishing to provide teaching services to replace those who may take part in the direct action; there are a large number of persons with professional and equivalent qualifications who are able to take on teaching hours and/or grades; in order to fill posts which would otherwise be unattended it is necessary to recruit persons voluntarily expressing the wish to work in the education sector: THE PROVINCIAL EDUCATION COUNCIL HEREBY RESOLVES THE FOLLOWING:

Section 1. The registration of volunteers to provide teaching services in each regional department shall be authorized.

Section 2. The following may register as volunteers: retired teachers, persons with professional and equivalent qualifications who shall be appointed to fill teaching posts in accordance with the basic principles laid down in the present resolution ...

Decree No. 222/96

THE GOVERNOR OF THE PROVINCE OF RÍO NEGRO HEREBY DECREES THAT:

Section 1. The direct action which may be taken by employees of the public administration, decentralized bodies and autonomous bodies of the provincial Executive shall be governed by the provisions of the present Decree.

Section 2. The decision to take direct action shall be adopted by the executive bodies of recognized trade union organizations, in accordance with the procedure laid down in the by-laws of each trade union organization. Where there is no provision to this effect in the by-laws, the measure shall be approved by the provincial executive of the trade union.

Section 3. A trade union organization that has decided to take direct action shall, with at least three days' notice, formally communicate this decision to the provincial Undersecretariat for Labour, which shall verify compliance with the provisions laid down in section 2 of this Decree. In the notification made to the Undersecretariat for Labour, the trade union organization shall communicate the nature and/or form of the action envisaged, its duration, the sectors of the public administration affected, the reason, the trade union body which took the decision and a certified copy of the record of such decision.

Section 4. Within 24 hours of receiving the communication referred to in the preceding section, the Undersecretariat for Labour may decide to hold the necessary hearings to examine the reasons for the direct action. Where the Undersecretariat for Labour decides to hold hearings, attendance shall be mandatory for those persons who have been formally notified.

Section 5. Any direct action taken by workers, whether as a single individual, group of individuals or collectively, which has not been formally decided by the trade union concerned in accordance with section 2 of the present Decree shall entail the applicable disciplinary sanctions under the regulations in force for provincial public employees, as well as the termination of temporary contracts or those of substitute or temporary teachers. Likewise, following disciplinary proceedings, such sanctions shall be applied to persons carrying out direct action called by the trade union organization of which they are members, without the latter having complied with the procedure laid down in this Decree.

Section 6. Where workers fail to carry out all or part of their service, by reason of direct action, whether such action has been formally decided upon or not, and whether or not they are present at the workplace, and where they fail to place themselves at the disposal of the authorities of the central public administration bodies, autonomous bodies or decentralized bodies of the provincial state, in order to carry out their tasks, and consequently could not engage in the work assigned to them, they shall not be paid any remuneration.

Section 7. Non-compliance by the trade union organizations covered by the provisions of this Decree shall result in the case being referred to the Ministry of Labour and Social Security of the Nation, with a request to order the suspension of the trade union's registration or legal personality.

Section 8. The Ministry of the Interior, Labour and Social Affairs shall be the competent authority to apply the provisions of this Decree and may issue the necessary supplementary regulations to ensure that it is implemented in the best possible manner.

Decree No. 329/96

CONSIDERING Decree No. 222/96; and WHEREAS section 5 thereof, referring to the legal consequences of non-compliance with the obligations laid down in it, omitted to mention that the first effect is the declaration that the direct action ordered contrary to the provisions of the above-mentioned Decree shall be declared illegal, which the body responsible for the implementation of the Decree is empowered to do, THE GOVERNOR OF THE PROVINCE OF RÍO NEGRO HEREBY DECREES THAT:

Section 1. Section 5 of Decree No. 222 of 28 February 1996 shall be amended to read as follows: "Section 5. Any direct action taken by workers, whether as a single individual, group of individuals or collectively, which has not been formally decided by the trade union concerned in accordance with section 2 of the present Decree shall entail, in addition to the action being declared illegal, the applicable disciplinary sanctions under the regulations in force for provincial public employees, as well as the termination of temporary contracts or those of substitute or temporary teachers. Likewise, following disciplinary proceedings, such sanctions shall be applied to persons carrying out direct action called by the trade union organization of which they are members, without the latter having complied with the procedure laid down in this Decree."

74. The complainant states further that on 6 June 1996 the provincial Undersecretariat for Labour informed UNTER of a notification received from the Provincial Education Council (CPE) in which the employer denounced all the collective agreements that had been signed and approved, the reasons given being that the agreements that had been approved failed to stipulate the term of the agreement; changes in circumstances; and the fact that the collegiate body had not endorsed the agreements. The complainant adds that after denouncing the agreements, the CPE issued resolutions concerning the conditions of work of teachers for which provision had been made in the collective agreements (substantial changes in hours of work, elimination of the monthly time off granted to delegates to attend trade union meetings, authorization to hire teachers under fixed-term and part-time contracts, suspension of payment of remuneration for trade union leave, etc.).

75. Lastly, the complainant alleges that the government of Río Negro province deducts a percentage of wages corresponding to the union dues of UNTER members, but does not transfer it to the trade union's account, and that only part of the dues for the month of February 1996 have been paid over.

B. The Government's reply

76. In its communication dated 15 April 1997 the Government states that provincial Decrees Nos. 203/96 and 222/96 do not involve any violation of the constitutional right to strike or of the international Conventions on freedom of association. These regulations are a part of the legislative framework governing the right to strike in the provincial administration of Río Negro which only lays down the following prior conciliation procedure: (a) a decision to take direct action must be adopted by the executives of recognized trade unions, in accordance with their by-laws; (b) the trade union shall send formal notification, with at least three days' notice, to the provincial Undersecretariat for Labour; and (c) within 24 hours of receiving such notification the above-mentioned Undersecretariat may decide to hold hearings to examine the reasons for taking the direct action. The Government adds that where the direct action was not formally decided by a legally recognized trade union in accordance with its by-laws or, where there is no such provision in its by-laws, with the approval of the provincial executive of the trade union, the legal consequence shall be that the direct action shall be declared illegal and applicable disciplinary sanctions under the regulations governing provincial public employees shall be adopted. This is a simple case of failure to provide services that is not protected by the right to strike and that entails the applicable sanctions, which shall not be applied in the case of direct action taken in accordance with the law. The Government states that it is clear from the above and from a close examination of the provincial Decrees at issue that the latter simply regulate the right to strike and cannot be deemed to restrict this right. The rights and guarantees laid down in the national Constitution must be exercised in accordance with the laws regulating the exercise thereof, which is what the above-mentioned provisions do.

77. The Government states that Resolution No. 203/96 of the Provincial Education Council is intended to guarantee the constitutional right to education in the event of a teachers' strike for an unspecified period or prolonged duration and, contrary to the statement made by UNTER, does not involve any change in the conditions of recruitment of teachers, since persons holding posts in accordance with the regulations are not removed from their posts, but replaced while they take part in a strike until they resume their activity. The Government emphasizes that this measure cannot in any way be considered as an unfair practice under Act No. 23551, since it is not clear of what the reprisal, change in working conditions or discriminatory treatment consists. Moreover, this resolution was not challenged at the appropriate time when it was submitted through the proper administrative and legal channels and, according to the government of the Río Negro province, has not been applied to date.

78. Concerning the allegation regarding the Río Negro province's handling of teachers' collective agreements, the Government adds that "denunciation" is a form of termination of agreements. The Government states that there has been a change in the social and economic situation throughout the country, and in Río Negro province in particular, since the collective agreement was approved, amounting to a change of circumstances which, in accordance with the doctrine, constitutes grounds for terminating an agreement. The Government points out that since the Provincial Education Council, a state agency which is a member of a collegiate body, is a party to the agreement, in order for it to sign the agreement the endorsement of the collegiate body is required, unless authority has expressly been delegated, which was not the case. This was the ruling handed down by the Second District Labour Court of Río Negro province, the competent court in this case, which declared null and void the act performed by the president of the Provincial Education Council without the endorsement of the collegiate body. Lastly, the Government states that many provinces are now beset by major financial crises which have prevented them from regularly meeting their commitments under the obligations they have assumed, and that in this emergency context and in view of the impossibility of meeting all its financial commitments on time, Río Negro province had established a payments schedule giving priority to public sector remuneration, including teachers' salaries, which are paid at regular intervals (monthly).

C. The Committee's conclusions

79. The Committee notes that in this case the complainant objects to a Resolution issued by the Education Council of Río Negro province providing for the possibility of recruiting teachers to replace striking staff and to Decrees issued by the Executive of Río Negro province governing the exercise of the right to strike of employees in the provincial public administration, decentralized bodies and autonomous bodies of the provincial Executive. The complainant alleges further that the employer -- the Education Council of Río Negro province -- denounced or unilaterally terminated the collective agreements for teachers in the public sector and that the trade union dues deducted from the wages of members of the UNTER trade union by the government of Río Negro province had not been paid to the trade union.

80. Concerning Resolution No. 203/96 of the Education Council of Río Negro province, challenged by the complainant, which authorizes the recruitment of teachers in the public sector to replace striking staff, the Committee notes that the Government states that (i) it is intended to guarantee the constitutional right to education in the event of a teachers' strike for an indefinite period or prolonged duration; (ii) it does not involve a change in the conditions of recruitment of teachers, since those holding posts in accordance with regulations are not removed, but are replaced while they take part in a strike until they resume their activity; (iii) this cannot be considered as an unfair practice under Act No. 23551 respecting trade union associations; (iv) it was not challenged at the appropriate time when it was submitted through the proper administrative and legal channels; and (v) it had not been applied to date.

81. In this respect, the Committee observes that the legal framework governing strikes in Argentina provides for the possibility of imposing a minimum service in the event of a strike in the education sector (Decree No. 2184/90, section 1) which is in conformity with the principles of freedom of association. However, the Committee notes that Resolution No. 203/96 adds to this possibility of imposing a minimum service that of temporarily replacing strikers with other workers. In this respect, the Committee emphasizes that "the hiring of workers to break a strike in a sector which cannot be regarded as an essential sector in the strict sense of the term, and hence one in which strikes might be forbidden, constitutes a serious violation of freedom of association" [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 570]. The Committee accordingly requests the Government to take the necessary steps to repeal Resolution No. 203/96 issued by the Education Council of Río Negro province.

82. As regards Decrees Nos. 222/96 and 329/96 issued by the Executive of Río Negro province, the Committee observes that they essentially provide for a prior conciliation procedure and non-payment of salaries during a strike.

83. The Committee observes that these provisions of the Decrees at issue do not violate the principles of freedom of association [see Digest, op. cit., paras. 500, 502 and 588]. None the less, the Committee observes that in cases in which a strike in the public service was not decided in conformity with the provisions of the Decrees, it may be declared illegal by the Ministry of the Interior, Labour and Social Affairs, and that sanctions may be applied, such as termination of the employment relationship or suspension of registration of a trade union or of its legal personality. In this respect, the Committee recalls that it has already had occasion to examine a complaint against the Government of Argentina concerning the power of the Ministry of Labour to declare strikes illegal [see 292nd Report, Case No. 1679 (Argentina), para. 95]. The Committee accordingly reiterates its previous conclusions to the effect that "the final decisions concerning the illegality of strikes should not be made by the Government, especially in those cases in which the Government is a party to the dispute" [see Digest, op. cit., para. 523]. In these circumstances, the Committee requests the Government to take steps to amend the Decrees in question so that it is not the Government itself which decides on the legality or illegality of a strike in the public service, but the judicial authorities or an independent body.

84. As regards the allegation concerning the denunciation (and hence termination) of the collective agreements in force in the education sector of Río Negro province, the Committee observes that these measures were taken unilaterally and by decision of the President of the Education Council of Río Negro province (CEP), without being endorsed by the CEP, which was challenged by the judicial authority. The Committee notes that the Government justifies these measures stating that there has been a change in the social and economic reality throughout the country and in the Río Negro province in particular since the collective agreements came into force (a change in circumstances as grounds for termination of the agreements). In this respect, the Committee recalls that "the suspension or derogation by decree -- without the agreement of the parties -- of collective agreements freely entered into by the parties violates the principle of free and voluntary collective bargaining established in Article 4 of Convention No. 98. If the Government wishes the clauses of a collective agreement to be brought into line with the economic policy of the country, it should attempt to persuade the parties to take account voluntarily of such considerations" [see Digest, op. cit., para. 876]. The Committee observes that in this case the administrative authority did not act by decree, but simply notified the parties of the denunciation of the collective agreements in force, which has a comparable effect. In these circumstances, while it deplores the fact that the President of the CEP did not respect the agreements freely entered into by the parties and that there has been no attempt to persuade the complainant organization to take account of economic changes that have occurred, the Committee requests the Government to ensure that the Education Council of Río Negro province (CEP) respects the collective agreements that have been concluded and avails itself of legal procedures if it wishes to renegotiate such agreements.

85. As regards the allegation concerning the failure to pay the UNTER trade union the dues deducted from the salaries of its affiliates since the month of February 1996 by the government of Río Negro province, the Committee regrets that the Government has not communicated its observations on this matter. In this respect, the Committee observes that national legislation (Act No. 23551, section 38, subsection 1) lays down an obligation to deduct trade union dues for trade union organizations with legal personality (the most representative organizations). In these circumstances, recalling that non-payment of trade union dues can result in serious financial difficulties for trade union organizations, the Committee requests the Government to ensure that the government of Río Negro province pay without delay to the UNTER trade union organization the union dues of its members which have been withheld since February 1996 and to keep it informed of developments in this respect.

86. Lastly, the Committee draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to the legislative aspects of this case.

The Committee's recommendations

87. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:

(a) The Committee requests the Government to take the necessary steps to repeal Resolution No. 203/96, issued by the Education Council of Río Negro province, allowing workers to be hired during a teachers' strike.

(b) Recalling that the final decision concerning the illegality of strikes should not be made by the Government, especially in those cases in which the Government is a party to the dispute, the Committee requests the Government to take steps to amend Decrees Nos. 222/96 and 329/96 issued by the Executive of Río Negro province so that it is not the Government itself which decides on the legality or illegality of a strike in the public service, but the judicial authorities or an independent body.

(c) As regards the allegation concerning the denunciation (and hence termination) of the collective agreements in force in the education sector of Río Negro province by unilateral decision of the President of the Education Council of Río Negro province (CEP), the Committee requests the Government to ensure that the CEP respect the collective agreements that have been concluded and avail itself of the legal procedures if it wishes to renegotiate such agreements.

(d) The Committee requests the Government to ensure that the government of Río Negro province pay without delay to the UNTER trade union organization the union dues paid by its members which have been withheld since February 1996 and to keep it informed of developments in this respect.

(e) The Committee draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to the legislative aspects of this case.

Case No. 1873

INTERIM REPORT

Complaint against the Government of Barbados
presented by
the National Union of Public Sector Workers (NUPW)
Allegations: Restrictions on collective bargaining in the public sector

88. In a communication dated 7 March 1996, the National Union of Public Sector Workers (NUPW) submitted a complaint of violations of freedom of association against the Government of Barbados. The Public Service International supported the complaint in a communication dated 29 March 1996. The Government sent its observations in a communication dated 27 May 1997.

89. Barbados has ratified 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).

A. The complainant's allegations

90. In its communication of 7 March 1996, the NUPW alleges that the Government of Barbados has departed from any established collective bargaining practices by unilaterally imposing pay increases on the majority of public workers.

91. According to the NUPW, it submitted by letter dated 5 May 1995, comprehensive proposals for increased pay, the payment of a productivity bonus and improved employment conditions to form the basis for negotiations for a collective agreement. The NUPW alleges that after four meetings (30 June 1995; 14 July 1995; 6 December 1995; and 26 January 1996), the Government proceeded to the House of Assembly and unilaterally imposed pay increases on the majority of public workers. According to the NUPW, the Government's various excuses for the reprehensible action included:

92. The NUPW further alleges that although there are six other workers' organizations that have accreditation as bargaining bodies, the complainant's membership is substantially larger than the combined membership of the other organizations and that they transcend more categories of workers.

93. Finally, the NUPW claims that the Government's persistent refusal to genuinely discuss the merits or otherwise of a productivity bonus is contrary to the provisions of two Protocols on Pay and Prices (section 3(e) of 1991-93 Protocol and section 3(f) of 1995-97 Protocol).

B. The Government's reply

94. In a communication dated 27 May 1997, the Government indicates that contrary to the complainant's claim, the Government did reach an agreement with a majority of trade union bodies representing the majority of civil servants.

95. As far as the allegations of the Government's refusal to genuinely discuss the merits or otherwise of a productivity bonus are concerned, the Government indicates that after having reached an agreement with the social partner for the period 1993-95, in April 1995, continued fragile economic conditions dictated that the social partners enter into a second protocol for the implementation of a prices and income policy (1995 to 1997) to succeed the one which expired in March 1995. After these negotiations, a second protocol was signed for the period 1995-97 in which increases, including a productivity bonus, were granted and accepted by the majority of trade union bodies representing the majority of civil servants.

96. Finally, the Government indicates that it did not act in bad faith nor in a manner contrary to the protocol and that it could not pay the members of the complainant at one rate and members of the umbrella body of trade unions at another rate.

C. The Committee's conclusions

97. The Committee notes that the allegations in this case refer to restrictions on collective bargaining in the public sector by the Government which imposed unilaterally a new wage plan on the majority of public workers.

98. The Committee first would like to recall the importance which it attaches to the obligation to negotiate in good faith for the maintenance of the harmonious development of labour relations as well as the importance to make every effort to reach an agreement [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 814]. The Committee is aware that collective bargaining in the public sector calls for verification of the available resources in the various public bodies or undertakings, that such resources are dependent upon state budgets and that the period of duration of collective agreements in the public sector does not always coincide with the duration of budgetary laws. However, it considers that the authorities should give preference as far as possible to collective bargaining in determining the conditions of employment of public servants [see Digest, op. cit., para. 899].

99. In this respect, the Committee notes that before proceeding to the House of Assembly and imposing a new wage plan on the public workers, the Government had four meetings with the complainant organization over a period of seven months. Furthermore, the Committee notes that the Government had reached an agreement with six other workers' organizations. While the question as to whether or not one party adopts an amenable or uncompromising attitude towards the other party is a matter for negotiation between the parties, both employers and trade unions should bargain in good faith making every effort to reach an agreement [see Digest op. cit., para. 817]. Therefore, the Committee cannot conclude from the allegations at hand that the Government had refused collective bargaining altogether, nor can it see that the Government had negotiated in deliberate bad faith.

100. With regard to the allegation that a minority agreement between the Government and other public sector bargaining bodies was imposed on the general public services, this raises the question of the recognition of the most representative organizations in an industrial relations system, according to which the negotiating agent representing the most representative trade unions has a priority with regard to collective bargaining. While the NUPW claims that its membership is larger than the other workers' organizations that have accreditation as bargaining bodies, the Government seems to claim that the NUPW's membership constitutes a minority of the public workers. Concerning this aspect of the case, the Committee recalls that the competent authorities should, in all cases, be able to proceed to an objective verification of any claim by a union that it represents the majority of the workers in an undertaking, provided that such a claim appears to be plausible. Therefore, since there seems to be a fundamental disagreement on this issue between the complainant organization and the Government, the Committee considers that the Government should proceed to such a verification as to whether or not the NUPW represents the majority of the workers in the public sector. The Committee requests the Government to send it the results of this verification.

The Committee's recommendations

101. In the light of its interim conclusions, the Committee invites the Governing Body to approve the following recommendations:

(a)Recalling the importance it attaches to the obligation to negotiate in good faith for the maintenance of the harmonious development of labour relations, the Committee reminds the parties to give preference as far as possible to collective bargaining in determining the conditions of employment of public servants.

(b)The Committee requests the Government to proceed to an objective verification of the claim by the NUPW that it represents the majority of the workers in the public sector in Barbados, and to send it the results of this verification.

Case No. 1850

REPORT IN WHICH THE COMMITTEE REQUESTS TO BE
KEPT INFORMED OF DEVELOPMENTS 

Complaint against the Government of Congo
presented by
the Trade Union Confederation of Workers of Congo (CSTC)

Allegations: Anti-union intimidation, banning of trade union meetings,
restrictions on the right to strike

102. The Committee examined this case at its June 1996 meeting [see 304th Report, paras. 199-220, approved by the Governing Body at its 266th Session (May-June 1996)], during which it formulated interim conclusions.

103. The Government sent observations on this case in a communication dated 5 March 1997.

104. Congo has ratified 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).

A. Previous examination of the case

105. In its communication of 19 August 1995 the Trade Union Confederation of Workers of Congo (CSTC) had stated that the Government was violating trade union rights. Specifically, it made the following allegations:

106. At its June 1996 meeting, the Committee expressed its regret at the Government's failure to send any reply concerning this case despite the fact that the Committee had invited it to do so on several occasions, even by way of an urgent appeal. The Committee had therefore found itself obliged to submit a report on the substance of the case without being able to take into account the information that it had hoped to receive from the Government.

107. In view of this situation the Committee had adopted the following recommendations:

In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:

(a) With regard to the alleged violent dispersion of a trade union meeting at Pointe Noire, the Committee calls on the Government to arrange without delay for an impartial and independent inquiry to clarify the facts and avoid the repetition of such acts, and to keep it informed of the findings of the inquiry.

(b) With regard to the alleged expulsion of the president of the CSTC, Mr. Louis Gondou, from Pointe Noire and the ban on his returning, the Committee calls on the Government to revoke these measures which constitute a serious interference in the activities of the trade union organization of which he is president and to arrange for a judicial inquiry into the truth of the allegations. The Committee requests the Government to keep it informed of the findings of this inquiry and of developments in the situation.

(c) With regard to the alleged expulsion of the CSTC from its premises and the ransacking of its property and documents in July 1995, the Committee calls on the Government to arrange for an independent inquiry and, should the allegation prove true, to return its premises and property to this workers' organization and to sanction the perpetrators of these illegal acts so that such inadmissible practices do not recur. It requests the Government to keep it informed of the steps taken in this respect and of the findings of the inquiry.

(d) With regard to the banning of trade union activities on 27 July and 12 August 1995, the Committee requests the Government to communicate its comments and observations on this aspect of the case.

(e) With regard to the alleged threats of dissolution and suspension of the CSTC, the Committee recalls that the suspension or dissolution of workers' organizations by administrative authority is contrary to Article 4 of Convention No. 87 and urges the Government not to resort to such action.

(f) With regard to the alleged repression practised against striking workers, the Committee emphasizes that protest strikes against the non-payment of remuneration and sympathy strikes with the workers concerned are legitimate trade union activities, and calls on the Government to revoke all anti-union reprisals that may have been taken in the public sector, including the 8 March 1995 order of the Council of Ministers, and to take the necessary steps to enable the leaders and the members of trade union organizations who have been dismissed for legitimate trade union activities to be reinstated in their jobs.

(g) The Committee recalls that blacklisting constitutes a serious threat to the free exercise of trade union rights and requests the Government to communicate its comments and observations on the allegation that such practices have been engaged in against striking workers.

(h) Finally, with regard to the draft amendment of the legislation on the right to strike in the public service, the Committee calls on the Government to take into account the principles of freedom of association in any amendment of the legislation on this subject and suggests that it communicate the Bill to the ILO prior to its adoption so as to ensure that its provisions do not run counter to these principles. The Committee draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to the legislative aspects of this case in respect of Convention No. 87.

B. The Government's reply

108. With respect to a trade union meeting being broken up at Pointe Noire on 30 September 1993 by a detachment of the national police force, in its communication dated 5 March 1997 the Government replies that it is aware of the gravity of this allegation and accepts, in accordance with the conclusions of the Committee on Freedom of Association, to arrange for an impartial and independent inquiry to clarify the facts and avoid their repetition.

109. Concerning the allegation that the president of the Trade Union Confederation of Workers of Congo, Louis Gondou, had been expelled from Pointe Noire by the Public Prosecutor and banned from returning, and the threats directed against the vice-president, Mr. Lobe, the Government explains that, in accordance with articles 129 et seq. of the Constitution of the Republic of Congo, the judiciary enjoys autonomy of action, the Constitution having established the separation of powers. In this particular case, it appears that Mr. Louis Gondou, the president of the CSTC, on a trade union assignment in Pointe Noire, had some exchanges with the police who accuse him of making untrue statements. This being the case, the Public Prosecutor, by virtue of the powers vested in him by the law and prevailing legislation, took the decision to expel Mr. Louis Gondou from Pointe Noire and ban him from returning. It is true that this decision could have taken the form of a decision handed down by a legally constituted court, in which case the president of the CSTC may have been able to present his defence. The Government notes, however, that this matter falls exclusively within the competence of the judiciary, which is why Mr. Louis Gondou has been applying to the courts to seek the annulment of that decision. The Government maintains that it is not responsible for events opposing a citizen and the law of his country. However, it takes careful note of the Committee's recommendations and will keep it informed of the measures taken and results obtained. As for the vice-president of the Trade Union Confederation of Workers of Congo, Mr. Moïse Lobe, he has entire freedom of movement and is going about his trade union activities in an entirely normal fashion.

110. Regarding the question of the CSTC being expelled from its premises, the Government explains that the premises belonged in fact to the Masonic Lodge. During the single party era the State had dispossessed the Freemasons, who held the property title, of the Lodge; following the return of pluralism they asked for their rights to be re-established. The property and documents of the Trade Union Confederation of Workers of Congo were in fact not ransacked at all, but instead a legal decision was executed and the premises restored to their former owner.

111. Pertaining to the banning of the Koulounda public meetings in Brazzaville on 27 July and 12 August 1995, the Government stresses that this decision was taken in order to avoid disturbances and events getting out of control in one of the most working-class districts of the capital. Available information indicated an atmosphere of unrest due to the presence of armed, uncontrolled persons. The Government acknowledges that it could have acted differently if the demonstrations had been scheduled somewhere offering full guarantees of security. However, no other proposal had been received from the Trade Union Confederation of Workers of Congo.

112. As regards the threats of dissolution and suspension levelled at the Trade Union Confederation of Workers of Congo, the Government notes that the complainant organization does not provide any specific details. It confirms its commitment to the principles contained in Convention No. 87. It states however that it brought to the attention of the Trade Union Confederation of Workers of Congo the obligation to respect legal procedures and the freedom to work on a number of occasions during the general strikes called by that organization in 1995.

113. In relation to restrictions on the exercise of the right to strike, the Government explains that the strikes called by the Trade Union Confederation of Workers of Congo often took place in violation of established procedures. They were held when negotiations had not been exhausted; in the public sector, for example, negotiations continued with the other trade union organizations, it was only the Trade Union Confederation of Workers of Congo that withdrew; in the private sector, more particularly in business, strikes often went hand in hand with assault, sit-ins, intimidation and threats directed at non-strikers. Certain employers had requested police support to guarantee freedom of work rather than to suppress strikers, with a view to ensuring the protection of tools and the safety of all, non-strikers in particular. The Government declares that it knows of no placing of striking workers on blacklists, no arbitrary posting of trade union leaders and militants, and no arbitrary dismissals during the general strike of January 1995. Likewise, there had been no ruling by the Council of Ministers dated 8 March 1995 authorizing the payment of salaries only to officials actually present at their workplaces. At that time, the Government had simply recalled that the strike of the Trade Union Confederation of Workers of Congo was clearly illegal (as the negotiations had not deteriorated and were continuing with the other trade unions), and that a deduction would be made from the salaries of all officials absent from their workplaces.

114. Lastly, with reference to legislation on the right to strike in the public service, the Government acknowledges that a bill is currently being examined. It confirms that it will communicate it to the ILO prior to its definitive adoption.

C. The Committee's conclusions

115. The Committee notes the detailed information and observations provided by the Government on each of its recommendations. It observes in particular, in relation to the dispersion of a trade union meeting at Pointe Noire on 30 September 1993 by a detachment of the police force, that the Government is aware of the gravity of the allegation and that it will arrange for an impartial and independent inquiry to clarify the facts and avoid their repetition.

116. The Committee recalls that, according to the CSTC, the trade union meeting on 30 September 1993 had been held at the labour exchange and that the intervention of the police had resulted in many people being wounded, including Mr. Ngakoya, an employee of the national railways. The Committee emphasizes the importance of the principle that the right of occupational organizations to hold meetings in their premises to discuss occupational questions, without prior authorization and interference by the authorities, is an essential element of freedom of association and that the public authorities should refrain from any interference which would restrict this right or impede its exercise, unless public order is disturbed thereby or its maintenance seriously and imminently endangered [see Digest of decisions and principles of the Committee on Freedom of Association, 4th edition, 1996, para. 130]. In this particular case, as the trade union meeting was being held at the labour exchange, the Committee is of the view that the authorities should have refrained from any intervention by the forces of order, especially given that it resulted in many people being wounded. It therefore again appeals to the Government to keep it informed of the findings of the inquiry and of the measures taken to punish those who are responsible for these reprehensible acts.

117. The Committee notes that, on the matter of the expulsion of the president of the Trade Union Confederation of Workers of Congo (CSTC), Mr. Gondou, as pronounced by the Public Prosecutor in March 1995, the Government itself acknowledges that the decision to expel this trade unionist and to ban him from returning could have been delivered by a court, which would have given the president of the CSTC the chance to defend himself. The Committee recalls that it has already concluded, on the basis of the proof contained in the complaint and given the general nature of the charge (and the prefect's view that the intervention of this trade union leader could have helped to calm the social unrest and not, as the Public Prosecutor stated, that it was intended to endanger law and order), that the CSTC president's expulsion and banning from Pointe Noire by the Public Prosecutor for disturbing the peace during the course of the labour dispute in the petroleum sector constituted an act of severe anti-union repression. The Committee therefore requests the Government to annul this decision handed down over two years ago, on 23 March 1995, violating his right to properly conduct his trade union activities, and to keep it informed of developments.

118. The Committee observes that the complainant's and Government's versions of the CSTC's expulsion from its premises do not tally. According to the complainant, the Confederation was expelled in July 1995 and its property and documents ransacked. In contrast, in the Government's version, the premises belonging to a Masonic lodge were restored to their former owners following a legal decision, and the Confederation's property and documents were not in any way ransacked. The Committee stresses, as a general rule, the importance of the principle that trade union property should be adequately protected, as emphasized by the International Labour Conference in its resolution concerning trade union rights and their relation to civil liberties, adopted in 1970. It asks the Government to help the CSTC, in every way it can, to find premises to enable it to properly carry out its activities. It requests the Government to provide a copy of the above-mentioned legal decision restoring the premises to a Masonic lodge.

119. The Committee notes the Government's acknowledgement that it could have refrained from prohibiting the Koulounda public meetings in Brazzaville on 27 July and 12 August 1995 if the CSTC had planned these demonstrations somewhere offering full guarantees of security, but it states that the Confederation had proposed nowhere else. The Committee recalls that workers should enjoy the right to peaceful demonstration to defend their occupational interests [see Digest, op. cit., para. 132]. It requests the Government to ensure respect for this fundamental principle in the future.

120. The Committee observes the Government's statement that the complainants did not provide any details on the alleged threats of dissolution or suspension of the CSTC and its point that it drew the Confederation's attention to the obligation to respect legal procedures and the freedom to work on a number of occasions during the strikes it called in 1995. The Committee recalls that it has always recognized the right to strike by workers and their organizations as a legitimate means of defending their economic and social interests [see Digest, op. cit., para. 474]. The Committee places special emphasis on the conclusion it formulated in its 304th Report [para. 216] relating to this case where it stated in relation to the 1995 strikes that protest strikes in a situation where workers have for many months not been paid their salaries by the Government are legitimate trade union activities. The Committee therefore calls on the Government to revoke all anti-union reprisals that may have been directed against the strikers and their organizations, in particular dismissals and blacklisting. In this connection, the Committee asks the Government to provide information on the situation prevailing in the Galaxy and Caravelle companies.

121. Lastly, the Committee is interested to note that, in accordance with its earlier recommendation, the Government says that the bill concerning the right to strike in the public service will be communicated to the ILO before its final adoption. The Committee trusts that this legislative text will be in accordance with the principles of freedom of association and asks the Government to honour its obligations in this connection, so that it may examine the compatibility of this legislative text with freedom of association principles.

The Committee's recommendations

122. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:

(a )The Committee notes with concern the numerous violations of freedom of association that have occurred in this case which relates to the brutal dispersion of a trade union meeting, the expulsion of a trade union leader and the ban on his returning, the banning of trade union meetings and anti-union dismissals following legitimate strikes. It reminds the Government that by ratifying Conventions Nos. 87 and 98 it undertook to respect freedom of association and asks it in future to guarantee workers and their organizations the right to exercise their trade union activities, including the holding of trade union meetings and taking strike action without the interference of the public authorities.

(b) With respect to the breaking up of a trade union meeting at the Pointe Noire labour exchange on 30 September 1993 by a detachment of the national police force, resulting in many people being wounded, including Mr. Ngakoya, an employee of the national railways, the Committee again asks the Government to keep it informed of the findings of the inquiry and of the measures taken to punish those who are responsible for these reprehensible acts.

(c) In relation to the expulsion from Pointe Noire of the president of the Trade Union Confederation of Workers of Congo (CSTC) by the Public Prosecutor and the ban on his returning, the Committee, judging this to constitute an act of severe anti-union repression, asks the Government to annul this decision which was handed down two years ago, and to keep it informed of developments.

(d) On the subject of the expulsion of the CSTC from its premises, the Committee requests the Government to help, as far as possible, the CSTC to obtain new premises.

(e) As regards the banning of the Koulounda public meetings in Brazzaville in July and August 1995, the Committee asks the Government to ensure that in future workers enjoy the right to peaceful demonstration to defend their occupational interests.

(f )In relation to protest strikes against the non-payment of salaries by the Government, the Committee calls on the Government to revoke all anti-union reprisals that may have been directed against the strikers, and in particular dismissals and blacklisting, and to keep it informed in this connection.

(g )Lastly, the Committee again asks the Government, in keeping with its commitment, to transmit a copy of the bill relating to the right to strike in the public service before its final adoption to allow it to check its compatibility with the principles of freedom of association.

Case No. 1905

REPORT IN WHICH THE COMMITTEE REQUESTS TO BE
KEPT INFORMED OF DEVELOPMENTS 

Complaint against the Government of the
Democratic Republic of the Congo
presented by
-- the National Union of Medical Practitioners, Health Service
Management and Personnel (SYNCASS) and
-- the Public Service Trades Union Council (COSSEP)

Allegations: de jure and de facto government interference in the establishment and functioning of public servants' trade unions

123. In two communications dated 5 October 1996, the National Union of Medical Practitioners, Health Service Management and Personnel (SYNCASS), an affiliate of the Democratic Confederation of Labour (CDT), submitted a complaint of violations of trade union rights against the Government. It subsequently presented further allegations and supporting documents in a letter of 4 December 1996. The Public Service Trades Union Council (COSSEP), also a CDT affiliate, delivered its allegations on the same matters in a communication dated 24 January 1997.

124. The Government provided certain comments and observations regarding these complaints in a letter of 5 March 1997.

125. The Democratic Republic of the Congo has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87); it has, however, ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainants' allegations

126. In their communications of 5 October and 24 January 1997, SYNCASS and COSSEP apprise the Committee of allegations of de jure and de facto violations of freedom of association.

Allegations of a legislative nature

127. SYNCASS considers that Decree No. CAB.MIN/FP/0174/96 of 13 September 1996, which provisionally regulates public administration trade union activities and amends and supplements Decree No. CAB.MIN/FP/105/94 of 13 January 1994 on the same matters, runs counter to the provisions of international labour Conventions Nos. 87, 98 and 151 regarding freedom of association and violates trade union rights.

128. More specifically, in the memorandum attached to its complaint, SYNCASS explains that the Decree, in article 3, restricts the freedom of workers employed by the State to join the trade unions of their choosing inasmuch as it limits membership of organizations to those approved by the Minister of the Public Service and stipulates that state employees may only belong to trade union organizations of "state officials and employees". This article endows the Minister of the Public Service with discretionary powers regarding the registration of trade unions and the selection of organizations entitled to conduct their activities in the public administration. These powers are extensive, given that the Decree makes no mention of any independent arbitration body competent to examine any injury caused to a trade union by the Minister's decisions.

129. The Decree hinders the registration of trade unions by the inclusion of several conditions in article 6.

130. Article 11 of the Decree reinforces the Minister's powers as it recalls that the rights and obligations of trade unionists are still determined by the Public Service Regulations. SYNCASS maintains that, whenever employees act as trade unionists, they clearly do so in accordance with trade union rules. However, articles 4 and 5 of the Decree stipulate that such rules must have the Minister's prior approval.

131. Article 12, subparagraphs (b) and (c), of the Decree constitutes both an unmistakeable restriction on trade union members' freedom to elect their representatives without hindrance as well as interference on the legislator's part in the drafting of trade union rules. Subparagraph (b) opens the door to dismissals and disciplinary transfers of union representatives for the purpose of preventing them from exercising their functions and subparagraph (c) targets trade union leaders holding parliamentary office, to whom the Minister of the Public Service had already repeatedly denied the right to represent their organizations, on the pretext of incompatibility between trade union and parliamentary mandates.

132. Further reinforcement of the Minister's powers over trade unions is found in article 13 of the Decree, given that it confers to unions the task of ensuring application of the Public Service Regulations, of acting as the administrative authorities' mouthpiece in relations with workers as well as of policing the implementation of those authorities' decisions. These tasks divert trade unions from the goal of defending their members.

133. According to SYNCASS, even if the State has not yet ratified Conventions Nos. 87 and 151, the Government is bound by a protocol signed by it and the public sector trade unions on 17 September 1994. That protocol clearly states the Government's duty to submit the ratification instrument for these Conventions to Parliament. This assertion is corroborated by the records of the Council of Ministers of 1 March 1996.

134. Furthermore, SYNCASS explains that the Decree is unconstitutional, unlawful and, hence, null and void, just as is the Decree dated 31 January 1994, which it amends and supplements. Upon publication, that initial text was declared to be without effect and, consequently, did not exist de jure on 13 September 1996, the date of its revision; this was because it had only been published, and thereby had only become applicable to third parties, on 22 April 1994, i.e. after the promulgation on 9 April 1994 of the Constitutional Transition Act presently in force. That constitutional Act, in article 59, states that it is law, and not ministerial decrees, that establishes the fundamental principles applicable to trade union pluralism.

Allegations of a factual nature

135. SYNCASS, in its communication of 5 October 1996, denounces the Government's interference in the appointment of COSSEP representatives to the joint committee set up by the Government and trade unions in June 1996. SYNCASS explains that, by letter of 30 May 1996, COSSEP had appointed eight delegates, two per group of affiliated unions, to represent eight public service trade unions, i.e. the Public Service Trades Union Council (COSSEP itself), the National Board of State Officials and Personnel (DINAFET/SYNAFET), the Teachers' Union of Zaire (SYEZA), the National Union of Medical Practitioners, Health Service Management and Personnel (SYNCASS) and four other trade unions.

136. The two designate members from SYNCASS were Messrs. Mulenda Lukwante and Ndjate Hiondo. According to the complainant, however, the Government subsequently took an arbitrary decision to appoint Mr. Omalundula Otshinga, Deputy General Secretary of SYNCASS.

137. SYNCASS strongly regrets this appointment to the Government/trade union joint committee, given that this body has been transformed into a staffing supervisory committee for state officials and employees and that the trade unions consider its work to be of major importance. It is their wish that the National Executive Secretary of SYNCASS, who had been designated in the appropriate manner by the union's competent body, be permitted to sit on the committee.

138. Moreover, in its letter of 4 December 1996, SYNCASS denounces the fact that the chief medical officer of the Ngaliema clinic, Kinshasa, refused to authorize the trade union to hold its general assembly on 23 August 1996. The documents attached to the complaint record that the chief medical officer, and chairman of that clinic's managerial board, gave the following reply to SOLSIZA and DINAFET/SYNAFET union representatives: "We regret to inform you that this is not the time to hold meetings of this kind which impair staff motivation." He went on to conclude that: "It is not the most opportune moment to hold staff assemblies which must be postponed until a later date." Whereas it recognizes that the ban pronounced on 23 August 1996 no longer applies, SYNCASS wishes that the Committee might reiterate its earlier recommendations with a view to ensuring that such practices do not become the general rule in the hospitals and clinics of the State.

139. The General Secretary of SYNCASS, Mr. Kibiswa Kwabene, who, as a member of the Parliament of transition, sits on the Supreme Council of the Republic, strongly protests at the fact that the Minister of the Public Service refuses to have dealings with him on account of his status as Parliamentarian; according to SYNCASS rules, however, this function is not incompatible with his trade union office.

140. Finally, in a subsequent letter dated 24 January 1997, COSSEP, to which several public service trade unions are affiliated, also requests to be able to represent its affiliates' members in collective bargaining and, in particular, on the committee responsible for supervising staffing in the public service. Its complaint is accompanied by several attachments which record the Government's refusal to take account of the COSSEP delegates' list on account of the fact that certain trade union representatives appointed by the membership are parliamentarians. It notes that bargaining takes place with trade unions which, it maintains, were set up at the initiative of the Minister of the Public Service or have a split leadership.

B. The Government's reply

141. In its reply dated 6 March 1997, the previous Government confirmed, as a Member of the International Labour Organization, its commitment to respect the obligations ensuing from the ILO Constitution. It emphasized that the Government of transition had pledged, as early as 24 April 1990, to apply the principles of trade union pluralism enshrined in the Labour Code of 9 August 1967 and it indicated that article 10 of the Constitutional Transition Act guaranteed freedom of association with respect for law, public order and moral standards.

142. In respect of the breach of trade union rights by Decree No. CAB/MIN/FP/0174/96, issued by the Minister of the Public Service on 13 September 1996 and which provisionally regulated trade union activities in the public administration, the Government accepted that the text contained certain articles which violated the provisions of both international and national instruments regarding the establishment and functioning of workers' occupational organizations.

143. The Government gave assurances that the Minister of Labour and Social Welfare would shortly be establishing an interministerial committee with a view to bringing the provisions of the aforementioned Decree into line with existing international and national legal instruments.

144. With regard to interference on the part of the Minister of the Public Service in the appointment of SYNCASS representatives to the joint committee set up between the Government and public service unions, the Government again recognized that the Minister of the Public Service had interfered, inadvertently as he had explained, in the appointment of SYNCASS delegates and it admitted that this constituted a flagrant violation of freedom of association.

145. The Government gave assurances that, with a view to avoiding the repetition of such violations, the Minister of Labour would be contacting all of the departments which were the subject of these complaints and would invite them to reflect upon trade union freedoms and rights.

146. Finally, in respect of ratification prospects for international labour Conventions on freedom of association, the Government stated that Bills to enable ratification both of Convention No. 87 and also of Conventions Nos. 135, 141 and 151 had received government approval as early as 1996 and that they were merely awaiting adoption by the Parliament of transition.

C. The Committee's conclusions

147. The Committee notes the change of government that has taken place in this country. It recalls that the new Government should take all necessary steps to remedy any continuing effects which the events on which a complaint is based may have had since its accession to power, even though those events took place under its predecessor [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 18]. The Committee therefore expresses the hope that the new Government will take all the necessary measures to implement the recommendations that it is formulating in this case.

148. The Committee notes that the allegations in this case relate to instances of de jure and de facto government interference in the establishment and functioning of occupational organizations of state officials and employees.

Allegations of a legislative nature

149. According to the complainants, the Decree of 13 September 1996, which amends and supplements that of 13 January 1994 and provisionally regulates trade union activities in the public administration, endows the Minister of the Public Service with discretionary powers regarding the registration of trade union organizations and permits him to interfere in their functioning. The Government, for its part, accepts that certain articles in the Decree which is the subject of the complaint violate the provisions both of national and international texts and gives assurances that the Minister of Labour will shortly be establishing an interministerial committee with a view to bringing the provisions of the aforementioned Decree into line with existing international and national legal instruments.

150. The Committee takes note of this information. Accordingly, it requests the Government to repeal without delay all provisions in national legislation, which run counter to the right of workers of any category and, in this instance, of state officials and employees to establish, without prior approval, and join the organizations of their choosing. It also requests the Government to repeal the provisions hindering state employees' organizations in the exercise of their right to draw up their administrative rules and regulations, freely to elect their representatives, to manage their business and activities as well as to determine their action programme without interference from the public authorities.

Trade union monopoly

151. Whereas it notes that the preamble of the Decree dated 13 January 1994 makes reference to trade union pluralism, as proclaimed on 24 April 1990, and that the Decree of 13 September 1996, which revised that of 1994 also mentions, in article 1, that it is designed to regulate the conduct of trade union activities in the public administration pending the publication of trade union regulations in conformity with trade union pluralism, the Committee requests the Government to repeal without delay article 56 of the Public Service Career Staff Regulations Act, 1981, which still obliges public servants to join a trade union organization mentioned by name in the Act, i.e. the National Union of Workers of Zaire (UNTZA), as well as article 49 of the said regulations, which calls upon them to show unfailing commitment to the ideals of the single party.

The role of trade unions

152. With regard to article 13 of the Decree dated 13 September 1996, which, according to the complainants, reinforces the hold which the Minister of the Public Service has over public servants' trade unions inasmuch as it gives them the task of ensuring the implementation of the Public Service Regulations, of acting as the administrative authorities' mouthpiece in relations with workers and of policing the application of the authorities' decisions, the Committee recalls the importance for a workers' organization to be an organization designed to promote and defend the interests of its members, in conformity with Article 10 of Convention No. 87. In the Committee's opinion, this implies that organizations and, in this instance, public servants' organizations must be entirely independent of employers and, hence, of the public authorities. The Committee requests the Government to repeal article 13 of the Decree of 13 September 1996 in order to ensure respect for this principle.

The establishment of trade unions

153. With regard to article 3 of the Decree of 13 September 1996, which obliges public servants' trade union organizations to be registered by the Minister of the Public Service, the Committee recalls the important principle that workers are entitled, without prior authorization, to establish the organizations of their choosing. In the Committee's opinion, ministerial registration does, in this instance, constitute prior authorization, inasmuch as the Decree, in article 6, imposes conditions reaching beyond the formalities designed to ensure the publicity necessary for the organization's smooth running and, moreover, article 4 states that the organization must obtain the Minister's approval and supply a copy of its rules to that end. Consequently, the Committee requests the Government to amend the provisions in question with a view to ensuring that trade union registration is not equivalent to prior authorization.

The election of trade union representatives

154. Finally, in respect of the Decree's article 12 which stipulates that a trade union leader's, or trade union delegate's, term of office expires if he/she leaves or loses his/her employment (subparagraph (b)) or if he/she takes up political or public office in a state/public institution or body (subparagraph (c)), the Committee recalls the principle that workers' organizations are entitled freely to elect their representatives and that the public authorities must refrain from any intervention likely to restrict that right. The Committee has repeatedly pointed out that, if national legislation stipulates that all trade union leaders must belong to the occupation in which the organization is active, the application of that principle is likely to be impaired. In such instances, the dismissal or forced leave of absence of a worker who is a trade union leader, including, as in the present case, a public servant elected to Parliament, may, given that he/she thereby foregoes his/her status as a trade union leader, impair the organization's freedom of action as well as its right freely to elect its representatives and may even be conducive to employer interference. The Committee generally considers that the regulation of procedures and methods for the election of trade union officials is primarily to be governed by the trade unions' rules themselves [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 354]. Consequently, the Committee requests the Government to repeal the above-mentioned restrictions upon the election of trade union leaders. In the light of these principles, the Committee urges the Government to ensure that trade union representatives, referred to in the complaint, who were also Members of Parliament, are able to carry out freely the duties as required by their trade union functions.

155. Noting that, according to the information supplied by the Government, (a) the Minister of Labour will shortly be establishing an interministerial committee with a view to bringing the provisions of the 1996 Decree into line with existing national and international legal instruments and (b) the ratification of Conventions Nos. 87 and 151 had already been approved by the Government in 1996 and that they are now awaiting adoption by the Parliament of transition, the Committee welcomes the Government's spirit of openness and trusts that the Government will, without delay, take all necessary measures to amend its legislation and bring it into conformity with the principles of freedom of association. It requests the Government to keep it informed of progress in this regard.

Allegations of a factual nature

156. The Committee observes that the Government recognizes that the interference by the Public Service Ministry in the appointment of SYNCASS representatives to the joint committee set up between the Government and state employees' trade unions was in flagrant violation of freedom of association and that, with a view to avoiding any repetition of such violations, the Minister of Labour will be contacting all of the departments which are the subject of these complaints. The Committee trusts that the official designations of SYNCASS delegates by the Public Service Ministry will be immediately annulled and that only delegates appointed by the public service trade unions' competent bodies in accordance with the appropriate procedures will sit on the joint committees set up to examine conditions of employment and supervise staffing in the public service.

157. Finally, in respect of the action to hinder the holding of a trade union's general assembly in a Kinshasa clinic, the Committee again stresses the importance it attaches to the fundamental right of workers to hold union meetings unhindered. It therefore requests the Government to guarantee respect for the exercise of this right by workers, including in health services, possibly outside working hours or, with the employer's consent, during working hours.

The Committee's recommendations

158. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:

(a) Observing the Government's statement that the Minister of Labour will shortly be establishing an interministerial committee with a view to bringing public service trade union legislation into line with national and international legal instruments, the Committee urgently requests the Government to repeal, without delay, all provisions in national legislation, which restrict the right of state officials and employees to establish, without prior authorization, the organizations of their choosing as well as the right of state employees' organizations to draw up their rules and administrative regulations, freely to elect their representatives, to manage their business and to determine their action programme without interference from the public authorities. In particular, it requests it to amend articles 49 and 56 of the Public Service Career Staff Regulations Act as well as certain provisions including articles 3, 4, 6, 12 and 13 of the 1996 Decree provisionally regulating trade union activities in the public administration. It requests the Government to keep it informed of progress in this regard.

(b) The Committee requests the Government to annul all official designations of public service union delegates, made by the Minister of the Public Service, and to ensure that only delegates appointed by the public service trade unions' competent bodies in accordance with the appropriate procedures sit on the joint committees set up to examine the conditions of employment and supervise staffing in the public service. It requests it to keep it informed in this regard.

(c) The Committee requests the Government to ensure that trade union representatives, referred to in the complaint, who were also Members of Parliament, are able to carry out freely their trade union functions.

(d) The Committee requests the Government to guarantee respect for the right of workers to hold union meetings unhindered, including in the health services.

(e) The Committee expresses the hope that the new Government will take all the necessary measures to implement the above-mentioned recommendations.

Annex I
Provisions of legislation and regulations
relevant to the complaint

Public Service Career Staff Regulations, 1981

Rights, duties and incompatibilities

Article 49 (...)

The employee shall show unfailing commitment to party ideals ...

Article 56 The employee enjoys the right to trade union membership and is officially affiliated to the National Union of Workers of Zaire (UNTZA). Administrative regulations regarding employees' union status will be published for the purposes of determining the nature and methods of union intervention in the public service, establishing bodies guaranteeing staff representation at national and regional levels, laying down the membership of such bodies, their terms of reference and the procedures they shall observe.

Decree issued by the Minister of the Public Service
No. CAB.MIN/FP/0174/96, 13 September 1996,
amending and supplementing Decree No. CAB.MIN/FP/105/94,
13 January 1994, provisionally regulating trade union activities
in the public administration

Article 1

This Decree regulates the conduct of trade union activities in the public administration, pending the publication of trade union regulations in conformity with trade union pluralism.

This Decree is applicable to all employees governed by the Public Service Career Staff Regulations as laid down in Act No. 81-003, 17 July 1981.

Article 2

The employees governed by this Decree are free to establish, join, become affiliated to, or withdraw from, a trade union organization of their choosing.

Article 3

State officials' and employees' trade union organizations registered by the Minister of the Public Service are entitled to conduct trade union activities in the public administration. The Minister of the Public Service may grant the same entitlement to other inter-occupational trade union organizations registered with the Minister of Labour and Social Welfare and defending the occupational interests of all or part of public administration staff, in keeping with the sector of activity covered by these organizations.

Article 4

A trade union's registration application shall mention the complete identity of the members responsible for its administration and management. The application shall be signed by each one of them. Four copies of the applicant trade union's rules and a submission from each member of the trade union's steering committee shall be attached to the application.

The trade union organizations mentioned in article 3, subparagraph 3, above shall notify themselves to the Minister of the Public Service by the submission of an application for registration, which shall include a copy of their rules and by-laws as well as the list of their officials.

Article 5

The trade union's rules shall indicate, inter alia:

Article 6

The submission in respect of each member responsible for a trade union's administration and management shall contain the following:

Article 7

Trade union registration is approved by order of the Minister of the Public Service.

Article 8

Within five days of the decision to register by the Ministry of the Public Service, the trade union shall forward a copy of its rules to the Public Prosecutor of the High Court, within the jurisdiction of which the trade union has its central office.

Article 9

Article 10

An electoral code and time-frame shall be drawn up by a committee composed of trade unionists and officials of the Ministry of the Public Service, who shall be assisted by Ministry of Labour and Social Welfare experts.

Article 11

Delegates shall be appointed to a renewable three-year term of office.During his/her term of office, the delegate shall be granted immunity in respect of all acts performed in his/her trade union capacity.

The delegate shall undergo no harassment or injury, nor shall he/she enjoy special advantages on account of his/her trade union office. The rights and obligations established in the Public Service Career Staff Regulations remain applicable to such delegates.

Article 12

The trade union manager or delegate is divested of his/her functions:

(a) if he/she ceases to meet the eligibility requirements;

(b) if he/she leaves or loses his/her employment;

(c) if he/she takes up political or public office in a state/public institution or body.

In the event of a vacancy, the delegate is replaced by a substitute who shall complete the term of office of the person he/she replaces.

Article 13

Trade union organizations representing employees in the public administration are engaged in trade union activity in which (a) they coordinate and convey employees' wishes and aspirations and ensure the strict and just application of the rules and administrative regulations; and (b) they inform employees of the decisions and measures taken in their regard and participate in the implementation thereof.

Case No. 1910

Report in which the Committee requests to be
kept informed of developments

Complaint against the Government of the
Democratic Republic of the Congo
presented by
the Trade Union of Plantation and Animal Husbandry
Workers (STPE)

Allegations: Interference in trade union affairs

159. The Trade Union of Plantation and Animal Husbandry Workers (STPE) presented a complaint for the violation of trade union rights against the Government in a communication dated 18 November 1996.

160. The Government provided some comments and observations on this complaint in a communication dated 5 March 1997.

161. The Democratic Republic of the Congo has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87); it has however ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98)

A. The complainant's allegations

162. In its communication dated 18 November 1996 the STPE alleges that the Government has violated ILO Conventions Nos. 87, 98 and 135 as well as section 229 of the Labour Code. More specifically, it explains that the enterprise Marsavco-Zaire, a multinational of the Unilever group, had sent a confidential letter, reference No. PERS/942/96/104/AJRKM, on 22 July 1996 to the Minister of Labour and Social Welfare concerning the General Secretary of the Trade Union of Plantation and Animal Husbandry Workers, Mr. Kadivilako Luzingamo. On the basis of this letter, and without having consulted the parties involved (the officials in charge of the enterprise and the trade union), on 30 July 1996 the Minister sent a letter, reference No. 12/CAB/MTPS/0702/96, to the Trade Union of Plantation and Animal Husbandry Workers (STPE). In this letter the Minister of Labour asks Mr. Kadivilako Luzingamo no longer to involve himself in the activities of the trade union within that enterprise, due to the fact that he had worked in an enterprise belonging to the same group up until 1990 and had instituted proceedings against his employer, Lever Plantations, when his employment contract was broken off.

163. The complainant goes on to say that the human resources department of the Marsavco-Zaire enterprise, having received a copy of the letter sent by the Minister of Labour to the General Secretary of the Trade Union of Plantation and Animal Husbandry Workers (STPE), Mr. Kadivilako Luzingamo, banned the trade union leader from exercising any trade union activities within that enterprise, despite the letter of clarification sent on 15 August 1996 to the Minister of Labour by the five representative trade union organizations within the enterprise, grouped together in an inter-union movement. The Marsavco-Zaire enterprise therefore refused to allow Mr. Kadivilako to participate in trade union meetings and in negotiations of the collective agreement being worked out. The complainant annexes copies of all related correspondence to its complaint.

B. The Government's reply

164. In its 6 March 1997 reply, the previous Government reiterated its commitment to the obligations arising from the ILO Constitution. It did not refute the complainant's allegations; nevertheless, it explained that letter No. 0702/96 dated 30 July 1996 in no way constituted an obligation. According to the Government, this letter aimed rather to provide the persons concerned with some information to help improve the social climate during the collective bargaining. The Government added that section 267 of the Labour Code guaranteed the freedom of trade unions to choose the representatives they wished to participate in collective bargaining. Therefore, in the Government's eyes, a simple letter -- which furthermore had no legal force -- could not supplant a piece of legislation. The Government concluded by giving its assurance that the various services of the Ministry of Labour would do all they could to ensure that both parties respected the principles of freedom of association.

C. The Committee's conclusions

165. The Committee notes the change of government that has taken place in the country. It recalls that the new Government should take all necessary steps to remedy any continuing effects which the events on which a complaint is based may have had since its accession to power, even though those events took place under its predecessor [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 18]. The Committee expresses the hope that the new Government will take all the necessary measures to implement the recommendations that it is formulating in this case.

166. The Committee observes that this case relates to an act of government interference in the appointment of a trade union representative assigned by the complainant trade union to negotiate a collective agreement.

167. The complainant organization's and the Government's versions tally as to the facts, but differ on the interpretation given to those facts. For the complainant organization the letter from the Minister of Labour sent to the Trade Union of Plantation and Animal Husbandry Workers, with a copy to the enterprise management asking the General Secretary of the STPE not to exercise any trade union activity within the Marsavco-Zaire enterprise, constitutes serious interference by the Government in the activities of a trade union; the Government, however, views the letter rather as information given by the Minister to the persons concerned with the aim of improving the social climate during collective bargaining.

168. It appears from the documentation annexed to the complaint that the Minister of Labour, in a letter dated 30 July 1996 sent to the STPE, wrote that the management of Marsavco-Zaire had asked him to help improve relations with the STPE in connection with the position of Mr. Kadivilako, General Secretary of the STPE. In the letter, the Minister points out that Mr. Kadivilako had been head of personnel in another enterprise belonging to the same group up until the time of his resignation, for which the employer was apparently responsible. He had issued a writ against the enterprise and had gone on to become General Secretary of the STPE. In this capacity he presented himself within the enterprise as a trade union official for collective bargaining purposes, and it was for this reason that he had been challenged by the enterprise. The Minister points out: "Without prejudice to the principles of freedom of association, the protection of trade union rights and of the right to non-interference by administrations as stipulated in ILO Conventions Nos. 87 and 98 and section 229 of the Labour Code, I would appreciate it if you could resolve this problem in such a way as to safeguard the promotion of collective bargaining within the enterprise and to preserve trade union ethics." The Minister concludes by adding: "Given that the process opposing the two parties is based on a strictly personal cause rather than a trade union one, I would ask you to consider replacing Mr. Kadivilako Luzingamo by another trade union official for the negotiations with Marsavco-Zaire, for the whole duration of the process."

169. In a letter dated 12 August 1996 sent to the Minister of Labour, the STPE acknowledges that Mr. Kadivilako had been head of personnel in 1990 in an enterprise belonging to the Lever group, but disagrees that that fact should constitute an obstacle to his exercising trade union duties and especially to defending workers' rights. It considers that the private problem opposing him to his former employer cannot be allowed to interfere with his trade union activities.

170. As regards the inter-union movement which groups together five representative organizations within the enterprise, in a letter dated 15 August 1996 also sent to the Minister of Labour, it expresses its regrets over the Government's interference in this matter given that the trade union leader in question had contributed to the draft revision of the collective enterprise agreement to be negotiated with the employer. It protests against the ministerial interference which runs counter to the fundamental principles of the ILO and the Labour Code, illegally delaying the beginning of bargaining work for the revision of the agreement which had been planned for 8 May at the latest, in accordance with article 6 of the agreement.

171. In a letter sent on 30 August 1996 to the General Labour Inspector the enterprise maintains its refusal to begin negotiations while the General Secretary of the STPE remains a party to the negotiations despite the ban imposed by the Cabinet.

172. Lastly, the Director General of the General Labour Inspectorate, in a letter dated 7 October 1996, points out to the employer that the Ministry of Labour's letter dated 30 July 1996 to the STPE in no way constitutes a ban, but is rather information given to the person concerned, and it urges the employer, having reminded it of the content of Conventions Nos. 87 and 98 and of the Labour Code, to set the date to begin bargaining work.

173. Having examined the documentation, the Committee is of the view that the Minister of Labour's letter dated 30 July 1996, sent to the complainant trade union with a copy to the employer, constitutes government interference in the appointment of a trade union representative as a negotiating party. In fact, even if it was subsequently pointed out by the General Labour Inspectorate that this letter did not constitute an obligation, the fact still remains that the Minister of Labour tried to influence the choice of a trade union representative in the framework of collective bargaining. The Committee also notes that it is apparently on the basis of the Minister's letter that the employer refused to start the collective bargaining process.

174. The Committee recalls in this connection the considerable importance it attaches to the principle that workers' organizations must themselves be able to choose which delegates will represent them in collective bargaining without the interference of the public authorities. In a previous case, the Committee expressed the view that simply the fact that a trade union leader had previously left the work which he was carrying out in a given undertaking, should not affect his trade union status or functions unless stipulated otherwise by the constitution of the trade union in question [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 373]. In the Committee's opinion, the fact that the person concerned had instituted proceedings against his former employer -- which was an enterprise belonging to the same industrial group -- should not have prevented him being appointed by his union to represent the interests of its constituents in negotiations.

175. Lastly, the Committee considers that the intervention by the Ministry, the cause for the complaint, constituted unjustified government interference in the voluntary collective bargaining process. By intervening in the collective bargaining process, the Government infringed the principles contained in Article 4 of Convention No. 98, which stipulates that it must encourage and promote the development and utilization of machinery for voluntary negotiation between employers' and workers' organizations to regulate terms and conditions of employment by means of collective agreements. The Committee therefore urges the Government to remove any obstacles to collective bargaining that may have been caused by the intervention of the Minister of Labour and to keep it informed of the outcome of negotiations within the enterprise. The Committee, noting the allegation that the enterprise is refusing to let Mr. Kadivilako participate in trade union meetings and negotiations, calls on the Government to ensure that he is able to undertake trade union activities without hindrance.

The Committee's recommendations

176. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:

(a) Recalling that trade union organizations must themselves be able to choose which delegates will represent them in collective bargaining without the interference of the public authorities, the Committee urges the Government to remove any obstacles to collective bargaining that may have been caused by the intervention of the Minister of Labour in the appointment of the representative of the Trade Union of Plantation and Animal Husbandry Workers (STPE) in the collective bargaining process.

(b )The Committee, stressing the importance it attaches to respect for Article 4 of Convention No. 98, requests the Government to keep it informed of the outcome of negotiations within the enterprise.

(c) Finally, the Committee requests the Government to ensure that Mr. Kadivilako is able to carry out freely trade union activities.

(d) The Committee expresses the hope that the new Government will take all the necessary measures to implement the above-mentioned recommendations.

Case No. 1865

INTERIM REPORT

Complaint against the Government of the Republic of Korea
presented by
-- the Korean Confederation of Trade Unions (KCTU)
-- the Korea Automobile Workers' Federation (KAWF) and
-- the International Confederation of Free Trade Unions (ICFTU)

Allegations: Arrest and detention of a trade union leader;
government refusal to register newly established organizations:
adoption of labour law amendments contrary to freedom of association

177. The Committee already examined the substance of this case at its May 1996 and March 1997 meetings, when it presented an interim report to the Governing Body [see 304th Report, paras. 221 to 254, and 306th Report, paras. 295 to 346, approved by the Governing Body at its 266th and 268th Sessions (June 1996 and March 1997)].

178. Since the most recent examination of this case, the Government forwarded its observations in a communication dated 5 May 1997. The ICFTU submitted new allegations in a communication dated 28 May 1997.

179. The Republic of Korea 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. Previous examinations of the case

180. The Korean Confederation of Trade Unions (KCTU) presented allegations to the effect that Korean labour law allowed the Government to infringe drastically the right of workers to establish and join organizations of their own choosing without previous authorization. More specifically, the law allowed the Government to refuse the KCTU's request for registration on 23 November 1995. The KCTU further alleged that its President, Mr. Kwon Young-kil, had been arrested by the police on the same day as that in which it had sought to be registered. The Korea Automobile Workers' Federation (KAWF) indicated that it too had been refused registration.

181. Subsequently, the ICFTU presented a complaint in respect of the adoption of the new Trade Union and Industrial Relations Adjustment Act and, more specifically, in respect of the provisions concerning:

182. In reaction to the adoption of this legislation, the FKTU and the KCTU called for a general strike. This strike action was declared illegal and arrest warrants were issued against KCTU leaders. Moreover, leaders of the Halla Heavy Industry Union were arrested in the harbour city of Mokpo as was a unionist at the Manda machinery automobile plant in Taejun. Subsequently, the trade union leaders who had been arrested during the time of the strikes were all released. The ICFTU had pointed out, however, that some 30 other trade unionists who had been arrested before the strikes were still detained, either serving prison sentences or appearing on a wanted list. The police had intervened on several occasions to disperse peaceful and authorized marches. Finally, the ICFTU indicated that the members of a delegation that it had sent to the Republic of Korea were subject to constant harassment, including the cancellation of a visa.

183. In its replies, the Government indicated that it had wished to reform the existing industrial relations system in order to enhance workers' living standards as well as labour market flexibility. However, since representatives of management and labour within the Presidential Commission on Industrial Relations Reform had failed to come to an agreement on certain issues, the Government had submitted the revised Bill of labour-related laws to the National Assembly which adopted it on 26 December 1996.

184. The Government believed that the revised labour-related laws were a considerable step forward towards respecting ILO standards, at the same time reflecting the Republic of Korea's economic needs and its socio-political particularities. The new legislation provided for, most notably:

185. However, as strong demands to reconsider certain aspects of the new laws had arisen from labour organizations and some other circles of society, the heads of the ruling and opposition parties had met at the Presidential Palace on 21 January 1997 and had agreed to reopen debates over the labour laws at the National Assembly.

186. At its March 1997 Session, in the light of the Committee's interim conclusions, the Governing Body approved the following recommendations:

(a) As regards the legislative aspects of this case, the Committee urges the Government:

(b) As regards the allegations of a factual nature:

(c) The Committee requests the Government to examine the possibility of a high-level tripartite mission being undertaken to the country as soon as possible so that the Government can take its views into account with a view to fully implementing freedom of association principles.

B. The Government's reply

187. In its communication dated 5 May 1997, the Government refers first of all to the legislative aspects of this case. Regarding the right to organize of public servants, it points out that this right has long been, and will continue to be, recognized for public servants who are engaged in manual work at the Office of Railroads, the Ministry of Information and Communication and the National Medical Centre. An intensive debate on how to extend these rights to other categories of public servants was held by the Presidential Commission on Industrial Relations Reform, but no consensus was reached. The "public interests" representatives on the Commission proposed reviewing this issue in the second reform phase during this year. The Government also recognized the need for an in-depth study of this issue and decided that it will be reviewed further in the second phase of reform. The opposition and ruling parties in the National Assembly agreed with this measure.

188. Regarding the rights of teachers, the Government recalls that it enacted a "Special Act on Promoting Teachers' Status" in 1991 which allows teachers to organize educational associations and to bargain and consult over working conditions twice annually with Superintendents at the local level, or with the Minister of Education at the national level. Educational associations include the Korean Confederation of Teachers' Associations and the Federations of Teachers' Associations at the municipal and provincial levels, to which approximately 60 per cent (260,000) of the Republic of Korea's teachers presently belong as members. The Government has tried to enhance the rights and interests of teachers through regular negotiations with these organizations. Furthermore, it has established a system in which teachers can work until the retirement age of 65 and take a three-year leave for child care.

189. In Korean society, teachers are viewed in a special light which is not easily understood in Western countries. Specifically, throughout the long history of the country, teachers have been respected as spiritual guides and students have always held them in great esteem. In many cases, the level of respect is the same as that reserved for parents. Teachers are looked upon as holders of special and important job rather than ordinary workers. The tradition still remains strong and teachers can exert tremendous influence over young students. In Korean culture teaching is regarded as a occupation with public responsibility. In this context, Korean people find it hard to understand why teachers, who have a high social status, would want to organize themselves into trade unions like ordinary workers. This has led to the Korean society having a strong opinion against the organization of teachers.

190. In an effort to address this issue, the Government advanced proposals with allowed for the establishment of multiple teachers' associations for the purpose of bargaining and calling for consultations on working conditions. These proposals were based on the report presented by the Presidential Commission on Industrial Relations Reform. However, faced with the argument of political and academic figures and parents' associations that this issue should be discussed further within the context of the ongoing educational reform process rather than in the context of labour law reform, the Government did not submit the revision plan to the National Assembly. During the discussion on the new labour laws in the National Assembly the ruling and opposition parties agreed to further examine and review the rights of public servants and teachers. Meanwhile the Presidential Commission on Industrial Relations Reform plans to discuss this issue thoroughly with the aim of devising reasonable and improved provisions in the second reform phase during this year.

191. Regarding section 4 of the Law on Regulating the Collection of Contributions in Cash or in Kind, the Government confirms that this law prohibits citizens, corporate entities and organizations from collecting undue contributions in cash or in kind. However, under the terms of section 2 of this Law, entrance fees, lump-sum allowances or membership dues are excluded from this prohibition. Nevertheless, a trade union cannot collect contributions from citizens who are not members. According to the Government, if a trade union is regarded as an exception and allowed to receive contributions from non-members, this would be in violation of the principles of equality and of the spirit of the rule of law.

192. The Government indicates that the new law enacted on 13 March 1997 (Trade Union and Labour Relations Adjustment Act) allows multiple trade unions. Thus, this law grants workers the right to freely establish and to join a union of their choice. Moreover, this new law offers immediate recognition to the KCTU as a lawful upper-level trade union and allows the establishment of a second or third upper-level trade union in each industry.

193. However, at the enterprise level, multiple trade unions will be allowed only after a five-year period (i.e. starting in the year 2002). Many people have expressed concern that trade union pluralism within a single company could lead to instability in industrial relations and confusion in collective bargaining. Therefore, it was decided to allow trade union pluralism at the enterprise level after concrete measures for minimizing such concerns were introduced. Appropriate methods and procedures for collective bargaining will be established by the time trade union pluralism at the enterprise level is allowed.

194. At the upper level, the KCTU as well as the Korea Automobile Workers' Federation (KAWF) and the National Council of Subway Workers' Union (NCSWU) can be registered unless they are disqualified under the new labour law of 13 March 1997. Trade unions at the industrial level such as the Federation of Korean Public Service Trade Unions, the Korean Federation of Chemical Workers' Unions, the Korean Cargo Transport Workers' Federation and the Federation of Korean Facilities Management Trade Unions were established under the new law, and have been conducting trade union activities as of 28 April 1997.

195. The former law disqualified trade unions whose aims were mainly directed towards political or social activities. However, there was criticism that the concept of "social activities" was too comprehensive and vague to be used as a legal term. Hence, in the new law amended on 13 March 1997, the term "social activities" has been deleted (Trade Union and Labour Relations Adjustment Act, section 2(4)(e)).

196. Under the new law, the ban on third-party intervention in collective bargaining and industrial disputes was eliminated. This law stipulates that the persons and organizations from whom workers and employers can seek assistance include those notified to the Minister of Labour, besides those who are qualified pursuant to related laws and regulations. The purpose of this notification is merely to inform the Government of those persons or organizations from whom the unions and employers wish to obtain assistance.

197. The Government recalls that under the former legislation, all the services defined as "public services" by law were subject to arbitration by the authorities. The new legislation however classifies public services into "general services" and "essential services" with a view to securing the right to collective action for workers employed in public services. Government arbitration is therefore limited to essential public services. Moreover, compared with the old laws, public hygiene and broadcasting services are excluded from the list of essential services, whereas banking services (except for the Bank of Korea) and bus services are categorized by the new law as essential services only until the end of the year 2000, when the expansion of the Seoul Subway Network is scheduled to be completed (Trade Union and Labour Relations Adjustment Act, section 71). The right of administrative authorities to ask for compulsory arbitration is no longer allowed. This procedure is only possible in cases where the Special Mediation Committee, composed of three representatives of "public interests", makes a recommendation to this effect. During the deliberations on the proposals, this modification was made to better reflect Korean reality, although during the law-making process, ILO standards served as a guideline.

198. In the Republic of Korea, where trade unions are organized mostly at the enterprise level, the law is interpreted, in principle, as denying dismissed workers the right to union membership. However, to prevent an unfair dismissal from undermining trade union activities, dismissed workers can remain as union members under the terms of the new law until a review decision is made by the Central Labour Relations Commission (Trade Union and Labour Relations Adjustment Act, section 2-4-d).

199. The new law allows the replacement of striking workers with workers from the same business, but new subcontracting during the strike period is prohibited (Trade Union and Labour Relations Adjustment Act, section 43). In the Government's view, the replacement of striking workers should be considered not only in relation to the protection of the right to industrial action, but also in relation to the employers' right to freedom of management and the employees' right to work in related enterprises. Compared with other countries where striking workers can be replaced with outside workers, the new law places very severe restrictions on the right of employers to continue business operations despite the strike.

200. Moreover, the new law deals with the legitimate means whereby striking workers can seek to restrict a company's normal operations. It is generally accepted that a strike, in order to be effective, should be allowed to interrupt these operations to a limited extent. The previous rulings of the Supreme Court uphold the notion that the total occupation of production facilities and installations are not in accordance with the law. However, in the Republic of Korea, where a tradition of good labour relations has yet to be established, striking workers often resort to extreme actions. These include occupying a company's entire production facilities or using force or the threat of force to dissuade non-striking workers in an attempt to halt business operations. The previous law allowed industrial actions inside the workplace and did not provide any guidelines for the conduct of these actions. Thus, it was felt that institutional change was needed in response to these union tactics. Thus, under the new law the prohibition on industrial action outside the workplace has been abolished. To balance this change, new provisions have been enacted prohibiting strikers from occupying production and other key operating facilities, from blocking the entry of non-striking workers, and from obstructing the work of non-striking workers (Trade Union and Labour Relations Adjustment Act, section 42). The new law also prescribes that maintenance operations to prevent raw materials and other products from decaying or rotting shall be conducted, and that the normal operations of workplace security facilities should not be interrupted. Furthermore, strikes are prohibited from resorting to threats or violence during picketing and when urging, or persuading, other workers to participate in the strike. The new law aims therefore to balance the workers' right to strike with the employers' property rights. This balance is aimed at helping lawful tactics during industrial actions to take root.

201. Under the new law, employers are not obligated to give wages to workers on strike, and trade unions are not allowed to carry out industrial action calling for the payment of wages of strikers (Trade Union and Labour Relations Adjustment Act, section 44). The principle of "No work, no pay" is essentially derived from employment contracts and has been internationally recognized. It was also upheld by the Supreme Court which decreed in its ruling of 21 December 1995 that "During industrial actions, workers have no right to demand wages, as their main right given in exchange for their duties of provided work". However, in the case of the Republic of Korea, such practices have long been followed, such as demands for wage payment during the period of strike, or prolongation of the dispute by demanding such payment as a precondition of reaching a settlement. As it seemed unlikely that these practices could be eliminated through the endeavours of labour and management acting on their own, the new law clarifies the legal principle that employers have no obligation to pay wages during the period of a strike, and trade unions cannot initiate or prolong a strike for this purpose.

202. Under the new law, full-time union officials cannot be paid by employers. Such payment will constitute an unfair labour practice (Trade Union and Labour Relations Adjustment Act, section 24). The businesses which kept up the practice of paying full-time union officials when the new law entered into force will not be affected by the new provision until late 2001. The Government points out that it is globally recognized that payment for full-time union officials be taken care of by the trade unions concerned. But, it has been a widespread, long-standing practice for employers to pay wages to full-time union officials. This practice has led to increasing numbers of full-time union officials and conflict between labour and management over the number of full-time union officials involved in collective bargaining. Thus, the new law stipulates that the payment of wages of full-time union officials shall, in principle, be borne by the trade unions themselves. Considering, however, that such a radical change in a long-established practice could impose a heavy burden on trade unions, a five-year grace period was granted to allow unions to prepare for the change. In addition, the payment of wages could be gradually reduced through consultation between trade unions and employers. The amount of the reduction can be turned over to the unions for their financial independence. The purpose of this provision is to minimize the difficulties facing trade unions which have a weak financial basis. The Government emphasizes that the new law does not restrict the right of employers and workers to consult or bargain with each other during working hours, if mutually agreed. Nor does the new law, in any way, limit the provision of welfare funds by employers to the union or the granting of office space on company premises.

203. As regards the allegations of a factual nature, the Government indicates that, as promised by President Kim Young Sam at the meeting of heads of the ruling and opposition parties on 21 January 1997, the arrest warrants and the arrests of 19 persons, including KwonYoung-kil, were cancelled. They are therefore all released despite the fact that their acts were illegal.

204. With respect to those under arrest before the adoption of the new law, their situation is as follows:

205. However, eight persons including Oh Jong-ryul, broke not labour-related laws but the National Security Law by involving themselves in activities which cannot be viewed as being motivated purely by the revised labour laws. Nineteen persons, including Lee Seung-pil, hampered other's businesses with the intention of promoting causes alien to the trade union movement, or committed violent and destructive acts which cannot be condoned as fair industrial action. The release of those who were accused by their victims and are on trial or are under ongoing investigation should be decided by the independent judicial authorities.

206. The Government confirms that a delegation of four trade union leaders visited the Republic of Korea from 11 to 16 January 1997 to reaffirm international solidarity with the strike action. The Government recalls that it grants full freedom to national trade unions in joining international labour organizations and in participating in international conferences. Similarly, international organizations can participate in the activities of their affiliated labour organizations in the country without any prior restriction. However, instead of carrying out a fact-finding mission to understand the domestic labour situation and the content of the new legislation, the delegation members involved themselves in political activities by joining the striking workers and instigating other workers to participate. Upon their arrival, they met with the leaders of the KCTU, held a press conference and participated in a solidarity rally with the FKTU. In a nationwide rally, called for the abolition of the labour-related laws and National Security Agency Law, they made such comments as: "The current strikes are about economic and social policies and thus justifiable"; and that "The OECD members can rightfully exert pressure for the revision of the new labour law." They encouraged further strike action which had already taken a heavy toll on the economy amid grave public concern. These actions went well beyond what is generally expected of members of international labour organizations, that is, providing advice and guidelines to affiliated organizations.

207. The Government, out of concern that the delegation might be violating the Immigration Control Law by involving themselves in "political activities or other activities beyond what their visas permit", sent, on 14 January 1997, government officials to meet with them to deliver a verbal notice recalling that international trade union leaders are not allowed to participate in rallies, or to take sides. Also, the officials sought an understanding with the delegation on the Government's efforts to calm the situation. Despite that, they visited the FKTU's strike site on 15 January and continued to instigate strikers. This compelled the Government to deliver a warning to the members of the delegation that they would be expelled if they disturbed the public order and peace. The Government refers to various decisions of the Committee on Freedom of Association to show that the measures taken by it were in conformity with freedom of association principles.

208. Finally, the Government states that it agrees in principle to the proposal concerning the visit of a tripartite mission. However, the details of the mission will be determined after continuous consultations between the Korean Government and the ILO.

C. The ICFTU's new allegations

209. In a communication dated 28 May 1997, the ICFTU presents new allegations in which it asserts that the Ministry of Labour has refused to accept the notice of establishment filed by the KCTU on the following grounds. Some of KCTU's democratically elected officers, including its President Kwon Young-kil, are regarded as being ineligible for trade union office under Korean law. Moreover, duly established trade union organizations, which are affiliates of the KCTU, including the Korean Federation of Metalworkers' Unions, the Korean Teachers' and Educational Workers' Union and the Hyundai Group Trade Union Federation, are not regarded as trade union organizations by law.

D. The Committee's conclusions

Allegations of a legislative nature

210. The Committee takes note of the adoption by the National Assembly of the Trade Union and Labour Relations Adjustment Act (TULRAA) and of its enactment on 13 March 1997. The Committee notes with interest that this new law contains a number of amendments which constitute progress towards acceptance of its recommendations, especially as regards the possibility of trade union pluralism at the industrial and national levels. However certain provisions that the Committee had considered to be contrary to freedom of association principles have not been amended. The Committee proposes to review, one by one, the points that it had raised during its previous examination of this case.

211. The Committee notes the Government's observations regarding the problem of the right to organize of public servants and of teachers. It observes that public servants, with the exception of those who are engaged in manual work at the Office of Railroads, the Ministry of Information and Communication and the National Medical Centre, still do not enjoy the right to organize. With regard to teachers, the Committee notes the explanations given by the Government concerning their role and status in Korean society. It notes moreover that despite the fact that teachers are viewed in a special light by the Korean people, it was possible to establish educational associations in 1991. According to the Government, these associations can discuss and negotiate working conditions with the authorities. However, it would not appear that these associations are trade unions in the true sense of the term, i.e. which are responsible for defending and promoting the interest of their members. This is reflected by the fact that the Korean Teachers' and Educational Workers' Union (CHUNKYOJO) has not been registered up to now.

212. In these conditions, the Committee must recall that public servants and teachers, like all other workers, without distinction whatsoever, have the right to form and join organizations of their own choosing, without previous authorization, for the promotion and defence of their occupational interests [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 213]. The denial of the right of workers in the public sector to set up trade unions, where this right is enjoyed by workers in the private sector, with the result that their "associations" do not enjoy the same advantages and privileges as "trade unions", involves discrimination as regards government-employed workers and their organizations as compared with private sector workers and their organizations [see Digest, op. cit., para. 216]. The possibility for teachers to establish only associations therefore can not be considered as satisfactory in the light of freedom of association principles.

213. In this respect, the Committee notes that the issue of the right to organize of public servants and teachers will be reviewed in the second reform phase during this year. The Committee requests the Government to take the appropriate steps so as to ensure respect for the fundamental principle of the recognition of the right to organize of workers without distinction whatsoever. The Committee therefore urges the Government to register without delay the Korean Teachers' and Educational Workers' Union (CHUNKYOJO) so that it can legally defend and promote the interests of its members. The Committee requests the Government to provide information on developments in this regard.

214. Concerning the alleged violations of the financial independence of organizations, the Committee notes the explanations given by the Government according to which trade unions can receive funds from their members but not from citizens who are non-members. The Committee stresses once again that provisions governing the financial operations of workers' organizations should not be such as to give the public authorities discretionary powers over them [see Digest, op. cit., para. 430].

215. The Committee notes with interest that the possibility of trade union pluralism at the industrial and national levels has been introduced. This constitutes progress in the application of freedom of association principles. In this respect, the Committee notes that several organizations have been registered in accordance with the new law. However, in order for this progress to be really significant, it would be appropriate for the Korean Confederation of Trade Unions (KCTU), the Korean Automobile Workers' Federation (KAWF), the National Council of Subway Workers' Union (NCSWU) and the Federation of Hyundai Group Trade Union to be registered shortly as well. In this respect, the Committee notes that the Government itself indicates that, under the terms of the new law, it is possible for the KCTU, the KAWF and the NCSWU to be recognized immediately. The Committee requests the Government to provide information on the measures taken to register these organizations.

216. The Committee regrets that, in steps take to recognize trade union pluralism, the Government did not immediately consider organizations established at the enterprise level for which trade union pluralism will only be possible from the year 2002. It takes note of the arguments put forward by the Government to justify this delay, especially the instability in industrial relations which could result therefrom. The Committee is of the opinion that this additional period during which freedom of association principles will continue to be seriously infringed could be avoided by organizing without delay a stable collective bargaining system in conformity with trade union pluralism and which exists in several other countries. The Committee once again urges the Government to take the necessary measures to render trade union pluralism legal without delay at the enterprise level.

217. The Committee notes with interest that the term "social activities" has been removed as a reason for which a trade union organization could be disqualified. Thus, an ambiguous situation in respect of the right of trade unions to organize their activities freely has been removed.

218. The Committee takes note of the information furnished by the Government concerning the lifting of the ban on third-party intervention in collective bargaining. It notes in particular that the purpose of the notification of the identity of third parties to the Minister of Labour is merely to inform (section 40 of TULRAA). The Committee therefore understands that this measure does not constitute a requirement of previous authorization. It requests the Government to confirm that this is indeed the case and to indicate what are the possible sanctions in case of the failure to notify the Ministry of Labour.

219. The Committee notes that the new legislation establishes a distinction between general public services and essential public services and that recourse may be had to arbitration only for this second category of public services after a recommendation of the Special Mediation Committee to this effect (sections 71 and 74 of TULRAA). The Committee observes that the essential services are the following: railroad services, inner-city bus services, water, electricity, gas supply, oil refinery and supply services, hospital services, banking services and telecommunication services. However, the inner-city bus services and banking services (except for the Bank of Korea) will be considered as essential only until the year 2000.

220. The Committee recalls in this respect that recourse to compulsory arbitration, when this results in the prohibition of the right to strike, should be limited to services whose interruption would endanger the life, personal safety or health of the whole or part of the population [see Digest, op. cit., para. 516]. The Committee considers, on the basis of this definition, that the Mint, banking services, transport services and the petroleum sector do not constitute essential services in the strict sense of the term. They do constitute, however, services where a minimum negotiated service could be maintained in the event of a strike so as to ensure that the basic needs of the users of these services are satisfied. The Committee notes, however, that under the terms of section 63 of TULRAA there does not appear to be a total prohibition of the right to strike in case of arbitration. In effect, this provision stipulates that industrial actions shall not be conducted for 15 days from the date on which they have been referred to arbitration. The Committee requests the Government to provide information on this point.

221. As regards the replacement of striking workers, the Committee notes that under the terms of the new law employers may not contract or subcontract works which have been suspended because of the industrial action concerned (section 43 of TULRAA). It would thus appear that the amendments of March 1997 have removed the possibility of hiring workers from outside the business concerned under certain conditions, a possibility which had been provided for in the legislation of December 1996 and which had been criticized by the Committee.

222. The Committee notes that the new law prohibits the occupation of the company's production facilities or other key operating facilities, blocking the entry and obstructing the work of non-striking workers (sections 38(1) and 42(1) of TULRAA). The Committee considers in this respect that certain types of strike action, such as for example workplace occupations as well as taking part in picketing, should not be considered as unlawful unless they cease to be peaceful or they interfere with the freedom to work. The compatibility of the above-mentioned provisions with freedom of association principles will thus depend on how they are interpreted by the courts. In order for such compatibility to be achieved, the action taken by strikers should not be declared unlawful unless this action is accompanied by violence or is a violation of the freedom to work of non-strikers. The Committee requests the Government to keep it informed of the application of this provision in practice.

223. The Committee understands from the Government's statement and from the legislation that the payment of wages to workers for the period when they have gone on strike is neither required nor prohibited (section 44 of TULRAA). The Committee requests the Government to confirm if this is indeed the case.

224. Concerning the denial of the right to organize of dismissed workers, the Committee notes that the workers concerned can keep their union membership until a review decision is made by the Central Labour Relations Commission (section 2(4)(d)). The Committee considers that this guarantee is insufficient to ensure that the principle of the right of workers to join organizations of their own choosing is respected. Moreover, as already pointed out by the Committee in its previous report (paragraph 333), a provision of this nature entails the risk of acts of anti-union discrimination being carried out to the extent that the dismissal of a trade union activist would prevent him from continuing his trade union activities within his organization. Furthermore, as the legislation provides that union officials shall be elected from union members (section 23(1)), which is in violation of freedom of association principles, the inability of dismissed workers to keep their union membership would also prevent them from continuing to carry out their trade union functions. These provisions taken together could even lead to the questioning of the validity of, or the refusal to register, an organization on the pretext that the persons in the executive bodies are not qualified to be members. The Committee requests the Government to quickly put an end to this situation which is in violation of freedom of association principles, by repealing the provisions in question.

225. The Committee notes that in five years' time full-time union officials will no longer be able to be paid by employers. During the transitory period, the parties will try to reduce the payment of wages of these officials and the amount of the reduction will be turned over to the unions for their financial support. The Committee further notes that once the new provision enters into force (1 January 2002) such payments will be considered as an unfair labour practice, just like the domination of, or interference with, the functioning of a trade union. The Committee notes, however, that under the terms of section 81(4), employers may provide welfare funds or office space to unions. The Committee considers that abandoning such a widespread, longstanding practice as the payment of wages of full-time union officials by employers may lead to financial difficulties for unions and entail the risk of considerably hindering their functioning.

226. Having examined the provisions which were the subject of the allegations and the amendments that have been made to them, the Committee notes that a certain number of these provisions continue to be in violation of freedom of association principles and that the compatibility of certain other provisions with these principles would depend on their application in practice. The Committee therefore insists that the revision of the legislation be undertaken shortly. It notes in this regard that a second reform will be carried out during this year. The Committee urges the Government to take into consideration the conclusions and recommendations formulated in this report so as to ensure as soon as possible the full respect of freedom of association principles. The Committee considers that it would be desirable that the proposed mission takes place before the next reform of legislation.

227. Finally, the Committee urges the Government to provide its observations on the ICFTU's new allegations according to which the Ministry of Labour has refused to register the KCTU.

Allegations of a factual nature

228. The Committee takes note of the detailed information furnished by the Government on the situation of the arrested or wanted persons mentioned by the complainants. The specific information thus provided covers all the persons who figure in the annex of the previous report. In particular, it notes with interest that the arrest warrants issued against 15 trade union leaders have been withdrawn and that four other trade union leaders arrested on this basis have been released (see Annex 1). However, it would appear that one of them, Kim Im-shik, President of the Hyundai Heavy Industry Union, was released for review of the legality of the detention. The Committee requests the Government to provide information on developments in the situation of Mr. Kim Im-shik.

229. As regards the situation of Mr. Kwon Young-kil, President of the KCTU, the Committee notes that his arrest warrant has been withdrawn, as is the case for the other trade union leaders. However, no information has been communicated on the criminal proceedings which were initiated against Mr. Kwon Young-kil in 1994 for violations of the provisions on third party intervention in the settlement of disputes. The Committee recalls that it had requested the Government to do everything in its power to have the charges against Mr. Kwon Young-kil dropped. It firmly reiterates this request especially since the Government itself states that there are no longer any obstacles under the new legislation to the intervention of third parties in the settlement of disputes. This would mean that proceedings are being taken against Mr. Kwon Young-kil under provisions which have been repealed.

230. Regarding the persons arrested and/or sentenced before the December 1996 strikes, the Committee notes that nine of them have been released either after having been granted leniency or after having served time. Moreover, the indictments of two other persons have been suspended (see Annex II).

231. However, six trade union leaders are currently being detained after having been sentenced to one to three years' imprisonment and, in the case of teachers, the suspension of their qualifications (see Annex III). These sentences were handed down for violations of the legislation on labour disputes under the Penal Code (interference with business), or of the National Security Law. However, the Government has not provided information on the specific reasons as to why which they have been thus charged. Finally, 11 other trade unionists are undergoing trial before the courts. Nine of them have been released on bail (see Annex IV).

232. The Committee must once again express its deep concern over the fact that trade union leaders and members are still detained or on trial, it would appear, for activities linked to collective labour disputes. The Committee is convinced that it will not be possible for a stable industrial relations system to function harmoniously in the country as long as trade unionists are the subject of detentions and judicial proceedings. It therefore urges the Government to take the appropriate measures so that the persons detained or on trial as a result of their trade union activities are released or that the charges brought against them are dropped. In the cases of persons charged with violence or assault, the Committee asks the Government to ensure that these charges are dealt with as soon as possible. It requests the Government to provide information concerning measures taken on all these points.

233. The Committee observes that the Government has not provided any specific information on the allegations concerning police intervention in trade union marches. The Committee recalls in this respect that trade union rights include the right to hold public demonstrations. The authorities should resort to the use of force only in situations where law and order is seriously threatened. The intervention of the forces of law and order should be in due proportion to the danger to law and order that the authorities are attempting to control and governments should take measures to ensure that the competent authorities receive adequate instructions so as to eliminate the danger entailed by the use of excessive violence when controlling demonstrations which might result in a disturbance of the peace [see Digest, op. cit., para. 137].

234. The Committee notes the explanations given by the Government on the measures taken during the visit of a delegation sent by the ICFTU in January 1997. It must recall that although the refusal to grant a visa to foreigners, or more generally the right to exclude persons from national territory, are matters which concern the sovereignty of a State, visits to affiliated national trade union organizations and participation in their meetings are normal activities for international workers' organizations [see Digest, op. cit., paras. 638 and 640]. The Committee therefore asks the Government to ensure that requests for visas, which are presented in the future by representatives of international organizations of employers and workers and the relations that the authorities have with international delegations, are guided by the need to respect the right of international affiliation and to promote a climate that is conducive to harmonious relations between the Government and trade unionists.

* * *

235. The Committee notes with interest the Government's statement that, in principle, it accepts the proposal concerning the visit of a mission which was contained in the Committee's previous report. It encourages the Government to receive this mission before the next reform of legislation takes place and to hold further consultations with the Office to fix the details of such a mission.

* * *

The Committee's recommendations

236. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:

(a) As regards the legislative aspects of this case, while observing with interest that the new law, the Trade Union and Labour Relations Adjustment Act (TULRAA), contains a number of amendments which constitute progress towards acceptance of the Committee's previous recommendations, the Committee urges the Government:

(b) As regards allegations of a factual nature:

(c) The Committee encourages the Government to receive the proposed mission before the next reform of legislation takes place and to continue holding consultations with the Office to fix the details of a mission to the country.

Annex I

Information on 19 individuals for whom arrest warrants
were sought after the labour law revision

 

Name

 

Position/organization

 

Date of arrest warrant request

 

Arrest warrant execution status

 

Charge

 

Reference

Kwon, Y.K.

 

President of KCTU

 

10.01.97

 

Not executed

 

Interference with business

 

Arrest warrant returned 11.2.1997

Bae, S.B.

 

Vice-President of KCTU

 

10.01.97

 

Not executed

 

Interference with business

 

Arrest warrant returned 11.2.1997

Heo, Y.K.

 

Vice-President of KCTU

 

10.01.97

 

Not executed

 

Interference with business

 

Arrest warrant returned 11.2.1997

Kim, Y.D.

 

Vice-President of KCTU

 

10.01.97

 

Not executed

 

Interference with business

 

Arrest warrant returned 11.2.1997

Dan, B.H.

 

President of KFMU

 

10.01.97

 

Not executed

 

Interference with business

 

Arrest warrant returned 11.2.1997

Lee, Y.H.

 

Chairperson of Hyundai Trade Union Federation

 

10.01.97

 

Not executed

 

Interference with business

 

Arrest warrant returned 11.2.1997

Kwak, D.C.

 

Presidient of Hyundai Mipo Shipyard Union

 

10.01.97

 

Not executed

 

Interference with business

 

Arrest warrant returned 11.2.1997

Kim, I.S.

 

President of Hyundai Heavy Industry Union

 

10.01.97

 

Executed on 18.1.1997

 

Interference with business

 

Released for review of the legality of the detention 22.1.1997

Oh, H.K.

 

Research Director of Halla Heavy Industry Union

 

10.01.97

 

Executed on 15.1.1997

 

Interference with business, infliction of injury

 

Arrest cancelled, released on 22.1.1997

Yoon, B.J.

 

General Secretary of KFMU-South Kyunggi Province

 

10.01.97

 

Not executed

 

Interference with business

 

Prior arrest warrant returned 18.2.1997

Lee, S.K.

 

President of Deokbu Jinheung Union

 

10.01.97

 

Not executed

 

Interference with business

 

Arrest warrant returned 18.2.1997

Jeun, J.W.

 

President of Daewoo Heavy Industry Union

 

10.01.97

 

Not executed

 

Interference with business

 

Prior arrest warrant returned 18.2.1997

Joo, K.S.

 

Director of Halla Heavy Industry Union

 

10.01.97

 

Executed on 15.1.1997

 

Interference with business, infliction of injury

 

Arrest cancelled 23.1.1997

Cheun, S.B.

 

President of the association of dismissed workers in Ulsan

 

10.01.97

 

Not executed

 

Interference with business, assault

 

Prior arrest warrant returned 10.2.1997

Choo, I.S..

 

Director of Halla Heavy Industry Union

 

10.01.97

 

Executed on 15.1.1997

 

Interference with business, infliction of injury

 

Arrest cancelled 23.1.1997

Sohn, B.H.

 

President of Hyundai Precision Industry Union

 

10.01.97

 

Not executed

 

Interference with business

 

Prior arrest warrant returned 10.2.1997

Chung, K.D.

 

President of Hyundai Motors Union

 

10.01.97

 

Not executed

 

Interference with business

 

Prior arrest warrant returned 10.2.1997

Park, M.J.

 

Presdient of Korean Federation of Hospital Work Unions

 

10.01.97

 

Not executed

 

Interference with business

 

Prior arrest warrant returned 10.2.1997

Bae, B.S.

 

President of Korean Federation of Automobile Workers

 

10.01.97

 

Not executed

 

Interference with business

 

Prior arrest warrant returned 10.2.1997

Annex II

Situation of imprisoned and wanted workers as of 12 March 1997
(11 released individuals)

 

Name

 

Position/organization

 

Date of release

 

Reasons for release

Lee, S.P.

 

Vice-President of KCTU

 

03.01.97

 

Prison term served

Lee, J.Y.

 

President of Shin-il Metal TU

 

23.06.94

 

Suspended sentence

Hong, Y.P.

 

Chairperson of KCTU -- Masan and Changwon

 

04.01.97

 

Prison term served

Park, S.H.

 

Hanjin Heavy Industry TU

 

04.09.96

 

Suspended sentence

Lee, K.S.

 

President of Daerim Automobile TU

 

05.02.97

 

Suspended sentence

Kim, P.K.

 

Director of Daerim Automobile TU

 

05.02.97

 

Suspended sentence

Ahn, S.O.

 

Daerim Automobile TU

 

05.02.97

 

Suspended sentence

Kim, K.D.

 

Changwon Branch, Doosan Machinery TU

 

23.09.96

 

Suspended sentence

Shim, J.S.

 

Vice-President of Halla Heavy Industry TU

 

05.02.97

 

Suspended sentence

Lee, K.C.

 

Dismissed worker, LG Chemical TU

 

Not imprisoned

 

16.12.96 suspension of indictment

Oh, H.S.

 

Dismissed worker, LG Chemical TU

 

Not imprisoned

 

16.12.96 suspension of indictment

Annex III

Six individuals serving time

 

Name

 

Position/organization

 

Date of arrest

 

Charge

 

Sentence

Oh, J.R.

 

Former Presidet of Kwangju District Teachers' Union

 

26.01.95

 

National Security Law

 

Two-year imprisonment, one-year suspension of qualification

Hwang, Y.H.

 

President of Korea Textile Co. TU

 

23.05.96

 

"Interference with business" under Penal Code

 

Two-year imprisonment

Im, Y.T.

 

Welfare secretary of Korea Textile Co. TU

 

23.05.96

 

"Interference with business" under Penal Code

 

One and a half year imprisonment

Lee, J.H.

 

Member of Korea Textile Co. TU

 

23.05.96

 

"Interference with business" under Penal Code

 

One and a half year imprisonment

Moon, S.D.

 

President of Class Confederation, Seoul Chapter

 

06.06.95

 

National Security Law

 

Three-year imprisonment, three-year suspension of qualification

Cho, M.R.

 

General Secretary of Kumi Regional Council, Korea Federation of Metal Workers' Union

 

19.06.96

 

Labour Dispute Adjustment Act

 

One-year imprisonment

Annex IV

Eleven individuals on trial

 

Name

 

Position/organization

 

Date of arrest

 

Charge

 

Reference

  

Kim, K.Y.

 

General Secretary, Changwon Branch, Doosan Machinery TU

 

19.09.96

 

Labour Dispute Adjustment Act

 

Released on bail 10.12.1996

Kim, S.B.

 

Director of Expiaworld TU

 

25.06.96

 

Act concerning punishment of violent crimes

 

Released on bail 22.11.1996

Im, Y.T.

 

Director of Expiaworld TU

 

25.08.96

 

Interference with business

 

Released on bail 6.12.1996

Lee, S.H.

 

Editor-in-Chief, Korea Fukoku TU

 

21.10.96

 

Act concerning punishment of violent crimes

 

Released on bail 10.12.1996

Lee, J.H.

 

Director of Korea Fukoku TU

 

21.10.96

 

Act concerning punishment of violent crimes

 

Released on bail 10.12.1996

Im, J.Y.

 

Dismissed worker, LG Chemical TU

 

08.10.96

 

Interference with business

 

Released on bail 11.12.1996

Kim, W.C.

 

Chairperson, Pusan Cmt for Democratization of Railway Workers TU

 

07.10.96

 

National Security Law

 

Released on bail 14.12.1996

Ahn, K.H.

 

President, Hyoseung Metal Industry TU

 

08.10.96

 

National Security Law

 

Released on bail 1.2.1997

Won, D.W.

 

President, Hyoseung Metal Industry TU

 

08.10.96

 

National Security Law

 

Released on bail 1.2.1996

Lee, C.E.

 

Chair, Cmt for Democratization of Railway Workers TU

 

07.10.96

 

National Security Law

 

First trial

Song, H.J.

 

Chair, Cmt for Democratization of Railway Workers TU

 

07.10.96

 

National Security Law

 

First trial

Case No. 1918

REPORT IN WHICH THE COMMITTEE REQUESTS
TO BE KEPT INFORMED OF DEVELOPMENTS 

Complaint against the Government of Croatia
presented by
the Confederation of Independent Trade Unions of Croatia (CITUC)

Allegation: Obstacles to registration of a confederation

237. The Confederation of Independent Trade Unions of Croatia (CITUC) presented a complaint against the Government of Croatia in a communication dated 30 January 1997, alleging violations of trade union rights. Further information was received from the CITUC in a communication of 10 March 1997. In response to the allegations, the Government forwarded observations and information in a communication of 16 April 1997.

238. Croatia has ratified both 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).

A. The complainant's allegations

239. In its communication of 30 January 1997, the CITUC alleges that in being denied registration it has been discriminated against due to its independence and political affiliation.

240. As background, the complainant first recounts the history of the CITUC. Established on 28 June 1990 as a new, democratic and independent trade union confederation, the CITUC was constituted by newly established trade unions that had withdrawn from the Union of Autonomous Trade Unions of Croatia. Mladen Mesi, President of the Independent Trade Union of Airplane Staff of Croatia, was elected as CITUC's first President. While the CITUC at one time represented over 100,000 members, during 1992-93 several trade unions withdrew, bringing the membership to 20,000. The CITUC has occupied one of three trade union seats on the national tripartite Economic and Social Council. It is also one of two trade union confederations in Croatia to have become a full member of the Trade Union Community of "Alps Adriatic" and of the Forum of the European Trade Union Confederation.

241. According to the complainant, on 23 March 1995, Ivan Muselinovi, manager of the gas and oil production sector of INA, a state-owned company, led a group of people in forcibly entering the main office of CITUC in Zagreb. They expropriated the premises, moveable property, official seals and the documentation and archives of the organization. Charges of trespassing were laid. The Municipal Court ruled on 4 April 1995, as a temporary measure, that the defendants were to restore the old lock on the entrance door or submit the key to the new lock to the prosecutor. The complainant states that the group led by Mr. Muselinovi has continued to use the premises, logo, insignia and seal. Mr. Muselinovi's justification, according to the complainant, is that an extraordinary congress of CITUC was held on 17 March 1995, during which he was elected the new President. The complainant emphasizes, however, that the prerequisites for calling an extraordinary congress pursuant to the constitution of the CITUC were not fulfilled. The complainant points to Mr. Muselinovi's position in the state-owned company and the fact that he, along with a lawyer and a manager of another company, initiated the calling of the extraordinary congress, as evidence that the removal of the leadership was politically motivated.

242. Mr. Muselinovi applied to be registered as the person authorized to represent the CITUC in the Register of Associations and other Social Organizations. In a decision dated 13 June 1995, the Ministry of Administration rejected the application. This decision was appealed to the Administrative Court, which ruled on 11 July 1996 that the case was to be referred back to the Ministry of Administration for further examination. Under the new Labour Code, 1996, the Ministry of Labour and Social Welfare ("the Ministry") became responsible for such matters. In a decision of 10 October 1996, the Ministry accepted Mr. Muselinovi's application for registration. The Ministry in its decision examined whether the extraordinary congress had been called in accordance with the CITUC constitution, and also whether the decision to elect Mr. Muselinovi was in conformity with the constitution.

243. Prior to the Ministry's decision to accept Mr. Muselinovi's registration, the CITUC under Mr. Mesi, applied, as required under the new Labour Code, to be entered in the Register of Associations. The Ministry in a decision of 29 February 1996, interrupted the registration procedure pending a final ruling on who was authorized to represent, and thus to register, the organization. Mr. Mesi subsequently lodged a complaint before the Administrative Court against the Ministry's decision of 10 October. Finally, in a decision of 25 November 1996, the Ministry rejected Mr. Mesi's application for registration of the CITUC since Mr. Muselinovi had been found to be the person authorized to represent the association, and the Labour Code prohibits the registration of more than one association under the same name.

244. The CITUC characterizes the facts of the case as a violation of Article 2 of Convention No. 87, in particular, the right of workers' organizations to establish organizations without previous authorization. The complainant also advances that there has been a breach of Articles 3, 4 and 7 of the Convention. The complainant contends that the Ministry prohibited the CITUC from pursuing trade union activities before all legal means had been exhausted, because of its independence and because it is not "politically correct" in the eyes of the current authorities. The aim of the ban, according to the complainant, was to discipline and weaken the trade union movement in Croatia.

B. The Government's reply

245. In response to the allegations, the Government emphasizes recent changes in the labour legislation. The Government asserts that freedom of association is protected under the country's Constitution and has been addressed in the Labour Code, 1996. Pursuant to the Labour Code, existing trade unions are not required to re-establish; however, registration is required if they are to acquire legal capacity. Pending registration, trade unions are entitled to undertake the activities for which registration is required, including collective bargaining and organizing strikes. The Government stresses that the provisions of the new law regarding the establishment and registration of trade unions comply fully with Conventions Nos. 87 and 98.

246. Regarding the specific allegations, the Government notes that the Ministry received two applications for registration from trade union confederations, both calling themselves the "Confederation of Independent Trade Unions of Croatia", each represented by different persons and consisting of different members. Prior to the application of the new law, the Ministry of Administration received a request for a change in the registration of the person authorized to represent the CITUC. The request was rejected, then brought before the Administrative Court. The Ministry, having been informed of the pending legal proceedings regarding the person authorized to represent the CITUC, suspended the registration procedure until the resolution of the matter. On 11 July 1996, the Administrative Court overturned the decision of the Ministry of Administration.

247. The Ministry took into account the decision of the Administrative Court, and conducted the procedure that it had mandated to determine the person authorized to represent the Confederation. The Ministry ruled on 15 November 1996 regarding the registration of the CITUC and the registration of Messrs. Muselinovi and Toto as the authorized persons. According to article 166 of the Labour Code, the name of the organization applying for registration must differ from the name of an already registered organization. Since the application for registration presented by Mr. Mesi concerned an organization with the same name as one already registered, the Ministry rejected the application. The matter has been referred on appeal to the Administrative Court. The Government submits that the procedure was conducted in accordance with the legislation and without violating Convention No. 87. In addition, it contends that any further analysis of the procedure would be an attempt to determine facts, which is the competence of the court, and would prejudge the pending court decision. The Government undertakes to forward the decision to the Committee as soon as it is handed down.

C. The Committee's conclusions

248. The Committee notes that the allegations of violations of freedom of association in this case arise out of two closely associated events: the dispute regarding the leadership of the CITUC and the subsequent obstacle to registration of the CITUC under the presidency of Mr. Mesi.

249. With respect to the dispute as to the authorized representative of the CITUC, the Committee recalls that generally it is not competent to make recommendations regarding internal dissension within a trade union organization, as long as the Government did not intervene in a manner that might affect the exercise of trade union rights and the normal functioning of the organization. In cases of this nature, the Committee has emphasized the importance of judicial intervention in settling the question of the leadership and representation of the organization concerned [see Digest of decisions and principles of the Freedom of Association Committee , 4th (revised) edition, 1996, paras. 965, 970]. The Committee notes that Mr. Mesi has lodged a complaint before the Administrative Court against the Ministry's decision of 10 October 1996 to register Mr. Muselinovi as the person authorized to represent the CITUC. The complainant has not questioned the impartiality of the appeal procedure. Assuming that the Administrative Court is able to deal with the substance of the case, as discussed below, the Committee considers that the principle that such a dispute should be settled by a judicial authority has been respected.

250. Regarding the refusal to register the CITUC under the presidency of Mr. Mesi, the Committee recalls that if the conditions for granting registration are tantamount to obtaining previous authorization from the public authorities for the establishment or functioning of a workers' organization, this would constitute a violation of freedom of association [see Digest, op. cit., para. 259]. In the case at hand, the registration of the CITUC under Mr. Mesi was denied for two reasons: first, because of the dispute regarding who was entitled to represent the organization, which has been addressed above; second, because the organization that Mr. Mesi was seeking to register had the same name as another organization that had already been registered. Regarding the second reason, the Committee notes that it is a reasonable, and in order to avoid confusion, normally a desirable requirement that two organizations not have the same name and does not amount to previous authorization.

251. The complainant alleges that the refusal to register the CITUC was tainted by political considerations and was an attempt to weaken the trade union movement in Croatia. The Committee recalls that the refusal to register a union because the authorities, in advance and in their own judgement, consider that this would be politically undesirable, would be tantamount to previous authorization [see Digest , op. cit., para. 268]. The Committee further recalls that an appeal should lie to the courts against any administrative decision concerning the registration of a trade union. Such a right of appeal constitutes a necessary safeguard against an unlawful or ill-founded decision by the authorities responsible for registration [see Digest , op. cit., para. 264]. The Committee notes that in the case at hand, the administrative decision denying registration is subject to appeal pursuant to article 173(3) of the Labour Code, 1996, and that an appeal has been launched. As noted above, the complainant has not questioned the impartiality of the appeal procedure. The Committee reminds the Government that on appeal the judge should be able to deal with the substance of the case to determine whether there has been a violation of the principles of freedom of association [see Digest , op. cit., para. 267]. The wording of article 173(3) is ambiguous in this regard since it states that the administrative decision "shall be final and can be challenged before an administrative tribunal". Therefore, the Committee requests the Government to provide further details regarding the jurisdiction of the Administrative Court regarding the leadership dispute and the refusal to register. The Committee further requests the Government to keep it informed of the status of the proceedings before the Administrative Court and to forward a copy of the Court's decision as soon as it is handed down.

The Committee's recommendation

252. In the light of its conclusions, the Committee invites the Governing Body to approve the following recommendation:

-- The Committee requests the Government to submit further information regarding the jurisdiction of the Administrative Court regarding the leadership dispute and the refusal to register, to keep it informed of the status of the proceedings before the Administrative Court and to forward a copy of the Court's decision as soon as it is handed down.

Case No. 1851

INTERIM REPORT

Complaints against the Government of Djibouti
presented by
-- the International Confederation of Free Trade Unions (ICFTU)
-- the Djibouti Inter-Trade Union Association of Labour/General
Union of Djibouti Workers (UDT/UGTD) and
-- the Organization of African Trade Union Unity (OATUU)

Allegations: Arrests, dismissals and suspensions of trade unionists following strike action, closing of trade union premises

253. The Committee examined this case at its June 1996 meeting [See 304th Report of the Committee, paras. 255 to 286, approved by the Governing Body at its 266th Session (May-June 1996)], at which it formulated interim conclusions.

254. The Government forwarded its observations in a communication dated 25 May 1997.

255. The General Union of Djibouti Workers (UGTD) sent additional allegations in this case in a communication dated 8 March 1997.

256. Djibouti has ratified 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).

A. Previous examination of the case

257. At its previous examination of the case the Committee had noted with concern that the serious allegations pending in this case concerned the arrests, dismissals and suspensions of trade unionists, following protest strikes against the Government's economic and social policy in a very large number of branches of activity, as well as the closure of the premises of the General Union of Djibouti Workers (UGTD) and the setting up of a trade union organization supporting the cause of the Government. The Committee had noted that the Government had merely put forward views of an extremely general nature on political developments in Djibouti and on the utility of democracy, while accusing trade unionists of actions which were political rather than of a trade union nature. The Committee had noted with deep regret that the Government had not made any specific comments on the allegations made by the complainants.

258. Concerning the substance of the allegations, the Committee had noted that the two trade union federations in Djibouti, grouped together in an Inter-Trade Union Association, UDT/UGTD, had called a strike in September 1995 to protest against draft financial legislation which, according to the complainants, had had disastrous repercussions on workers' living standards and against the Government's refusal to discuss with the trade unions beforehand. This two-day strike had allegedly been followed in many branches of activity and had resulted in many arrests and the sentencing of activists and trade union officials (see Annex I), as well as wide-scale dismissals and suspensions (400 teachers, for instance) (see Annex II).

259. The Committee had accordingly formulated the following recommendations:

(a) The Committee recalls that strikes of a purely political nature do not fall within the scope of freedom of association; however it insists that the occupational and economic interests which workers are able to defend through the exercise of the right to strike should not only concern better working conditions or collective claims of an occupational nature, but also the seeking of solutions to economic and social policy questions of direct concern to the workers. The Committee further insists on the fact that trade unions should be able to have recourse to protest strikes, in particular where aimed at criticizing a government's economic and social policy, without incurring reprisals. It requests the Government to try in the future to take account of these principles and to avoid considering strikes of this nature as unlawful.

(b) Concerning the arrests and sentencing of a large number of trade union officials and activists, the Committee urges the Government to release the trade unionists arrested for strike action and to keep it informed of the fate of the trade union officials arrested who, it would seem, are still subject to judicial proceedings. Furthermore, it requests the Government to communicate the text of any legal decision handed down on this matter.

(c) Concerning the dismissals and suspensions of strikers, the Committee urges the Government to take measures to lift as soon as possible the severe penalties imposed on the strikers and, in particular, to reinstate in their posts the trade union officials and trade unionists dismissed or suspended for lawful trade union activities linked to the defence of workers' interests.

(d) As regards the closing of the UGTD premises by the police, the Committee, stressing the importance of an independent judicial review in view of the significant risk that such measures may paralyse trade union activities, requests the Government to communicate its comments on this aspect of the case.

(e) Furthermore, the Committee requests the Government to make any comments and observations it considers appropriate concerning the allegation that it set up a trade union organization supporting its cause called the Djibouti Labour Congress.

(f) Deeply regretting the lack of prior consultation with the trade union organizations during the adoption of economic and social bills which led to strike movements, the Committee recalls the importance of consultation of representative employers' and workers' organizations when drafting social legislation. The Committee notes with satisfaction that the Government wishes to request technical assistance from the ILO which might contribute efficiently towards elaborating a draft labour Code, thereby fully guaranteeing the rights enshrined in the Conventions on freedom of association and collective bargaining.

B. The complainants' new allegations

260. Referring to the decision taken in November 1996 by the Committee on Freedom of Association to postpone its examination of the case, the UGTD stated in a communication dated 8 March 1997 that the situation is deteriorating daily and is becoming increasingly alarming:

261. The UGTD accordingly drew the attention of the Committee to the urgent need dictated by the situation to take all the necessary steps as soon as possible to reach a decision on the complaint, since the families of the arbitrarily dismissed trade union officials have been suffering since September 1995.

C. The Government's reply

262. In a communication dated 25 May 1997, the Government refers to Article 15 of the Constitution of Djibouti which recognizes the right to organize and the right to strike. It explains that the dismissals took place for the following reasons: absence from the workplace, violations of the freedom to work and the carrying out of purely political activities in collusion with the parties. According to the Government, the UDT and the UGTD made a political choice that was contrary to the workers' interests.

263. Concerning the headquarters of the trade unions, the Government explains that the building belongs to the State. The UGTD refused to share the premises with the UDT. The UGTD moreover refused to sign any agreement on the headquarters or on the division of responsibilities. In his speech of 1 May, the Labour Minister had invited the organizations to sign an agreement on the conditions and modalities relating to the use of the premises. According to the Government, all this proves that the organizations are not pursuing trade union goals.

D. The Committee's conclusions

264. The Committee notes with deep concern that the serious repressive measures taken against trade union activists and officials in several branches of activity because they had taken part in strikes to protest against the Government's economic and social policy have not been lifted, but have worsened since its last examination of the case. The Committee deplores that the Government has once again merely replied to the allegations in a very general manner without providing specific and detailed information. It recalls its conclusion addressed to the Government of Djibouti to the effect that trade unions should be able to have recourse to protest strikes, in particular where aimed at criticising a government's economic and social policy, without incurring reprisals. [See 304th Report, para. 280.]

265. Specifically, the Committee observes with deep regret that according to the complainants the trade union officials have still not been reinstated, the UGTD premises are still closed, the contributions of primary trade unions are still frozen, that certain officials of the Inter-Trade Union Association UDT/UGTD are subjected to threats and harassment, that five officials of the teachers' trade union were dismissed on 16 February 1997, that 500 persons were interned in a police camp 10 km from the capital for protesting peacefully against these arbitrary dismissals and that the Inter-Trade Union Association's lawyer, Aref Mohamed, was suspended from his job. The Committee accordingly recalls that the rights of workers' and employers' organizations can only be exercised in a climate that is free from violence, pressure or threats of any kind against the leaders or members of these organizations, and it is for governments to ensure that this principle is respected. [See Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 47.]

266. The Committee notes with profound concern that it has received no information on the fate of the 15 trade union officials who were arrested and sentenced in August and September 1995 (see Annex I). It therefore urges the Government once again to release the trade unionists arrested for strike action who are still imprisoned and to keep it informed of the fate of the trade union officials who, it would seem, are still subject to judicial proceedings. It requests it to communicate the text of any legal decision handed down on this matter.

267. Concerning the anti-union measures taken against strikers, the Committee once again urges the Government to lift immediately the measures of mass dismissal or suspension imposed on the strikers and to ensure the reinstatement in their posts of the trade union officials and trade unionists dismissed or suspended for lawful trade union activities linked to the defence of workers' interests, in particular the officials of the UGTD, the members of the Post Office and Telecommunications Workers' Union (OPT), and the members of the railway workers', health workers' and teachers' unions (400 secondary schoolteachers and 180 primary schoolteachers for having participated in a strike in January 1996).

268. The Committee points out moreover that a climate of violence, in which attacks are made against trade union premises and property, constitutes serious interference with the exercise of trade union rights. It insists on the importance of the principle that trade union property should be given adequate protection. It notes in this respect that the Government proposed to the unions that they sign an agreement on the use of the trade union premises. The Committee considers however that priority should be given to the immediate lifting of the closure of the UGTD premises and the freeze on the contributions on the Post Office and Telecommunications Workers' Trade Union (OPT) and the Djibouti Electricity Workers' Trade Union (SEED). It therefore urges the Government to take these above measures.

269. The Committee once again requests the Government to forward its observations concerning the alleged setting up of a trade union organization supporting its cause called the Djibouti Labour Congress.

270. Lastly, the Committee requests the Government to forward its comments and observations on the serious new allegations contained in the UGTD's communication of 8 March 1997, in particular, the dismissal of five officials of the schoolteachers' trade union on 16 February 1997, the internment of 500 persons in a police camp 10 km from the capital following a peaceful demonstration and the suspension of the lawyer of the Inter-Trade Union Association UDT/UGTD, Aref Mohamed.

271. The Committee requests the Government to accept a direct contacts mission to the country.

The Committee's recommendations

272. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:

(a) The Committee deplores that the Government once again did not provide specific and detailed information on the allegations, especially since the serious repressive measures imposed on trade unionists and trade union officials have not been lifted but, on the contrary, have worsened.

(b Concerning the arrests and sentencing in August and September 1995 of 15 trade union officials (see Annex I), the Committee once again urges the Government to release the trade unionists arrested for strike action who are still imprisoned and to keep it informed of the fate of the trade unionists who, it would seem, are still subject to judicial proceedings. Furthermore, it requests it to communicate the text of any legal decision handed down on this matter.

(c) Concerning the dismissals and suspensions of strikers in 1995, 1996 and 1997 (see Annex II), the Committee once again urges the Government to send information in this respect and to take measures to lift immediately the severe penalties imposed on the strikers and, in particular, to reinstate in their posts the trade union officials and trade unionists dismissed or suspended for participating in a strike. It also requests it to reinstate the trade union officials in their office.

(d ) Concerning the closing of the UGTD premises by the police, which is still continuing, the Committee urges the Government to immediately lift this measure, which constitutes a serious interference with the exercise of trade union rights. It also requests it to lift the freeze on the trade union contributions of the OPT and the SEED.

(e )The Committee once again requests the Government to send its comments on the allegation that it set up a trade union organization supporting its cause called the Djibouti Labour Congress.

(f) The Committee requests the Government to send its comments and observations on the serious new allegations contained in the UGTD's communication dated 8 March 1997, in particular concerning the dismissal of five officials of a teachers' trade union, the internment of 500 persons in a camp following a peaceful demonstration and the suspension of the lawyer of the Inter-Trade Union Association UDT/UGTD, Aref Mohamed.

(g )Finally, the Committee requests the Government to accept a direct contacts mission to the country.

Annex I

Trade union officials and trade unionists who
were arrested and/or sentenced and concerning whom
the Government has not provided any information

Dismissals or suspensions of trade unionists concerning
whom the Government has not sent any information

Interim Report

Complaints against the Government of Guatemala
presented by
-- the International Confederation of Free Trade Unions (ICFTU
-- the World Confederation of Organizations of the
Teaching Profession (WCOTP)
-- the Latin American Central of Workers (CLAT)
-- the Trade Union of Workers of Guatemala (UNSITRAGUA
-- the General Confederation of Workers of Guatemala (CGTG)
-- the World Confederation of Labour (WCL) and
-- the International Union of Food, Agriculture, Hotel, Restaurant,
Catering, Tobacco and Allied Workers' Associations (IUF)

Allegations: Deaths, disappearances and acts of anti-union discrimination

273. The Committee examined these cases at its June 1995 meeting in the light of information obtained during the direct contacts mission which took place in Guatemala between 13 and 17 February 1995, and presented interim conclusions to the Governing Body [see 299th Report, paras. 398-427]. The Committee again examined these cases at its May-June 1996 meeting and again presented interim conclusions [see 304th Report, paras. 304-320, approved by the Governing Body at its 266th Session (June 1996)].

274. The ICFTU sent additional information and new allegations in a communication dated 27 June 1996 (Cases Nos. 1512 and 1539) and the CLAT sent new allegations in communications dated 4 and 16 October 1996 (Case No. 1778).

275. The Government sent new observations in communications dated 13 September, 7 October, 5 and 12 November 1996, and 31 March 1997.

276. Guatemala has ratified 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).

A. Previous examination of the cases

277. At its June 1996 meeting, the Committee formulated the following recommendations on the pending allegations [see 304th Report, para. 320]:

(a)As at its previous meeting, the Committee once again deeply regrets the violent deaths of trade union officials and trade unionists, as well as the disappearances, abductions, arbitrary arrests and assaults and expresses its deep concern at the situation of impunity (only in a few cases have the authors been identified) and insists on the absolute need for judicial inquiries to be opened on all cases pending before the Committee with a view to clarifying the facts and punishing the guilty parties. In this respect, the Committee recalls the commitment made by the Attorney-General of the Republic to open investigations on all the cases presented to the Committee and requests the Government to keep it informed in this respect. The Committee expresses its deep concern that new allegations have been made concerning assassinations and acts of violence against trade unionists in 1995.

(b)Although it takes note of the efforts by the Government to provide information on the alleged deaths and other acts of violence, the Committee urges it to continue sending information on the investigations mentioned in its conclusions (death of the trade unionists Juan Tarax, Lilian Elizabeth Juárez Escobar -- the responsible official was placed before the competent court, Camilo Ajqui -- who the Government denies as a unionist, Adrián Miranda and Velizario López Rojas; arrests of the trade unionists Silvio Pastor, Pablo Itzel, Teodoro Pastor, Rolando Pastor and Francisco Pastor -- which resulted in the dismissal of a captain; the abduction of Walter Nájera Molina -- who was released; the disappearance of Gustavo Rosalio Vásquez López; and the attacks against Ernesto Bol) and on those concerning the list of allegations appearing in the annex and to take the necessary measures to determine the whereabouts of those who have disappeared [reproduced below is the list of allegations that appeared in the annex to the 304th Report].

Assassinations of trade unionists

Disappearances, abductions, assaults and arrests
of trade unionists

The Committee requests the Government to send its observations on the additional information presented by the IUF and the ICFTU in their communications of July, October and December 1995; [the text of this additional information which appeared in paras. 313-315 of the 304th Report of the Committee is reproduced below]:

In their communication of July 1995, the IUF and the ICFTU state that Mrs. Flor de María Salguero de Laparra, a trade unionist of the Trade Union Federation of Food, Agro-Industry and Related Workers (FESTRAS), a trade union organization in the maquila sector, received death threats in 1995; on 17 May 1995 she was abducted, drugged, beaten and raped; after her release she received further intimidating telephone calls recalling the assault against her on 17 May.

In its communications of July, October and December 1995, the ICFTU indicates that in the middle of March 1995, Mr. Alexander Giovany Gómez Virula, a leader of the trade union in the RCA enterprise, was assassinated. Mr. Ivo Adilio García Rivera, an official of the Trade Union of Electricity and Energy Workers, was abducted and freed the following day after being submitted to severe psychological pressure and that these events were related to a work stoppage in August 1995. Furthermore, the ICFTU alleges the assassination of Mr. Eric Osberto Berganza Pacheco, an official of the Trade Union of Workers of the National Electrification Institute on 23 July 1995, which the trade union says was the result of his trade union activities. Further threats were also made against the trade unionist Débora Guzmán and against the child which she was expecting, to make her force her husband, Félix Hernández, an official of the Lunafil Trade Union, to leave the trade union. The ICFTU adds also that Mr. Ernesto Bol, an official of the Trade Union of the Workers of the City of Cobán, was severely beaten and insulted on 9 November 1995 by unknown people; furthermore, it was not possible for him to be reinstated in his post even with the existence of a judicial order to this effect.

Finally, the ICFTU alleges that in the Las Delicias farm in Retalhuleu, which belongs to the Good Year S.A. Rubber Plantations multinational enterprise, attempts have been made for many years to destroy the Trade Union of Rubber Plantation Workers in the Las Delicias farm through radical anti-union measures designed to intimidate workers, such as the systematic dismissal of workers who were trade union members, violations of the fundamental right to engage in collective bargaining (the enterprise has appointed a group of non-unionized workers to represent all the workers) and the unacceptable measures of reprisal taken by the enterprise, such as the closing down of the school and clinic which depend on the enterprise and the recent refusal to pay wages for the last two months to unionized workers.

(c) The Committee requests the complainants to provide details on the allegations concerning the death of the trade unionists José María Incuyat, Julio César Pérez and Pedro Genovevo, the armed attack against the trade unionist Víctor Alfredo Chacoj and the attacks against Werner Coc Ramírez.

(d) Regretting that the Government has not provided the information requested on some of the allegations pending concerning, inter alia, acts of anti-union discrimination, the Committee reiterates the recommendations which it made in this regard at its meeting in June 1995 and which are reproduced below:

B. Information and new allegations from the ICFTU and the CLAT

278. In a communication dated 27 June 1996, the ICFTU alleges that Mr. Crisanto García Alonzo, General Secretary of the Trade Union of Road Workers of Santa Rosa, was abducted on 7 June 1996 at 2 p.m. by armed men and released the following day after his family paid a ransom of 50,000 quetzals. During his abduction he was subjected to psychological intimidation.

279. In its communication dated 4 October 1996, the CLAT alleges that Mr. Cándido Luis Toj, Executive Secretary of the Popular Federation of Farm Workers (FEDECAMPO) and General Secretary of the Trade Union of Workers of the Nueva California farm (San Miguel de Pachuta) disappeared on 30 September 1996. Mr. Toj was on his way to a meeting at the General Labour Inspectorate to discuss certain labour matters with the owner of the Nueva California farm, including various acts of reprisal against trade union leaders and workers. In its communication dated 16 October 1996, the CLAT states that Mr. Cándido Luis Toj was released a few days later. In fact, Mr. Toj was unjustly imprisoned by the national police in the Municipality of Patulul, which denied in front of Mr. Toj's family that he had been arrested. The CLAT adds that at approximately 5 p.m. on 8 October 1996, Mr. José Antonio García, disputes secretary of the Trade Union of the Municipality of Esquipulas, was followed by a person armed with a 12 millimetre shotgun and that there was serious cause to believe that this person intended to kill him. Mr. García managed to escape safely from this individual and so saved his life. At 10 p.m. on the same day another trade union leader from the same organization was chased by a van, with the intention to intimidate him. Mr. Luis Armando Bravo Pérez, General Secretary of the Trade Union of Customs Workers, was assassinated on 5 October 1996 in the city of Tecún Omán. Furthermore, Mr. Sixto Pérez Coche, Financial Secretary of the Trade Union of Workers of the La Patria farm (Santa Bárbara, Suchitepéquez) was recently the victim of an assassination attempt.

C. The Government's reply

280. In its communications dated 13 September, 7 October, 5 and 12 November 1996 and 31 March 1997, the Government provides its observations. It refers, inter alia, to the recent peace accords and to a meeting held on 13 March 1997 by the Tripartite Commission on International Affairs in which the Minister for Labour and Social Welfare, the Attorney-General and the Executive Deputy Director of the Presidential Commission on Human Rights (COPREDEH) also participated. According to the minutes of the meeting, the Government, the Attorney-General and COPREDEH are all at the entire disposal of the ILO for any clarifications concerning the allegations, although many of the events took place a number of years ago. In some cases the complainants have made very little information available about the allegations and in others they have not made denunciations to the national authorities. The worker sector of the Tripartite Commission expressed its willingness to collaborate in this task. The Tripartite Commission decided to set up a working group to respond to the allegations.

281. The Government also states that eight Special Labour and Social Insurance and Family Courts of First Instance have been set up in eight cities throughout the country, as have two divisions of the Labour and Social Insurance Court of Appeal (Guatemala City and Mazatenango). Similarly, there has been a further decentralization of the competent courts for collective disputes (these measures are in reply to some of the recommendations of the direct contacts mission which visited the country in February 1995).

282. More specifically, the Government provides the following information on the allegations relating to acts of violence against trade unionists:

283. The Government also sent information on the following allegations of acts of anti-union discrimination:

D. The Committee's conclusions

284. I t is with satisfaction that the Committee learned of the peace agreements and, in particular, of the agreement on the definitive cease-fire (4 December 1996), of the global agreement on human rights and of the agreement concerning socio-economic aspects and agriculture which establishes the principles of freedom of association, social dialogue, negotiation and consultation. The Committee likewise notes with interest the establishment of new labour courts, as recommended by the direct contacts mission that visited the country in February 1995. The Committee expresses the sincere hope that civil peace marks the beginning of a new stage in industrial relations.

285. Nevertheless, the Committee emphasizes that the return to normality in industrial relations must go hand in hand with the elucidation of all acts of violence against trade unionists as alleged in the cases currently under consideration by means of the initiation of judicial inquiries so that responsibilities can be determined and the guilty parties punished. The complainant organizations also have a collaborating role to play in this task, and in this connection the Committee regrets that they have not sent the information it had requested of them.

286. The Committee notes the decision of the Tripartite Committee for International Affairs to set up a working party to investigate the allegations. It hopes that the working party will be able to respond to all the allegations, and counts on the collaboration of the trade unions. The Committee notes the readiness of the authorities to try to elucidate the allegations, although, according to the Government, many of the events occurred a number of years ago; in some cases the complainants have provided very little information, and in others they have made denunciations to the national authorities.

287. More specifically, the Committee notes the initiation or continuation of judicial inquiries into the death of the trade unionists Petrolino Hernández Vasilio (proceedings halted for lack of evidence), Eric Osberto Berganza Pacheco, Alexánder Giovanni Gómez Virula, Adrián Miranda Pérez and Belisario López Rojas, the disappearance of Gustavo Rosalio Vázquez, the abduction of and attacks against Edi Antonio Conde Lu, and the abduction of Ivo Adilio García Rivera and Crisanto García Alonzo. The Committee observes that, according to the information sent by the Government, the death of Néstor René Osorio is not linked to causes of a trade union nature (but to civil problems related to land tenure), and neither is the arrest and prosecution of Otto Iván Rodríguez Venegas (car theft), nor the alleged attacks against Mr. Ernesto Bol (he was knocked over in a state of drunkenness by a vehicle), nor the arrest of Mr. Cándido Luis Toj (he took part in the lynching of a foreman at the Nueva California farm, who was assassinated). With respect to the imprisonment of Mr. Rubén Terry Amézquita, according to the Government he left the country and went into exile. The Committee requests the complainant organizations to provide more details on the allegation relating to the death of Edwin Giovanni Hidalgo (according to the Government he was neither a worker nor a trade union leader at the National Electrification Institute, and therefore additional information is required to confirm his death) as well as on other, too general allegations indicated in the annex to this report.

288. The Committee regrets that the Government has not provided information on the remaining allegations of acts of violence against the trade unionists (see the annexed list of pending allegations) and requests it to do so urgently, making sure that judicial inquiries have been initiated, and to keep it informed in this connection.

289. The Committee observes furthermore that the judicial proceedings brought in relation to acts of violence against trade unionists, to which the Government has referred, do not seem in general to have been concluded nor to have allowed the guilty parties to be identified and punished. In this connection, the Committee stresses that the absence of sentences against the guilty parties involves a de facto impunity which aggravates the climate of violence and insecurity, and that this is extremely detrimental to the exercise of trade union activities. The Committee expresses the hope that the judicial inquiries under way and those that are to be initiated will put an end to the situation of impunity which has existed up until now.

290. The Committee also requests the Government to send observations on the allegations of the ICFTU (27 June 1996) and of the CLAT (4 October 1996) concerning the assassination of Luis Armando Bravo Pérez, General Secretary of the Trade Union of Customs Workers, the attempted assassination of Sixto Pérez Coche, Financial Secretary of the Trade Union of Workers of the La Patria Farm and the following of the trade union leader José Antonio García by an armed individual. Furthermore, the Committee repeats its request for information on developments in the inquiries relating to the death of the trade unionists Juan Tarax, Lilian Elizabeth Juárez Escobar, Camilo Ajqui, to the arrest of trade unionists Silvio Pastor, Pablo Itzel, Teodoro Pastor, Roland Pastor and Francisco Pastor, and to the abduction of Walter Nájera Molina, who was released.

291. As regards the pending allegations concerning acts of trade union discrimination, the Committee notes that the judicial authorities denied the request for the reinstatement of a number of members of the Trade Union of the Nueva California farm but that in the case of El Estor the dismissed persons were reinstated in their jobs. The Committee regrets that, according to the Government, the unions at the Medellín, El Trapichito and El Naranjo farms either do not exist or have been inactive for a considerable amount of time and that at present neither the Trade Union of Bakers of Chiquimula nor the Trade Union of Shipping Workers of the Santo Tomás de Castilla Port are operating. Bearing in mind the Government's statements and the fact that the acts of discrimination in the cases under consideration occurred a number of years ago, the Committee notes that it will be difficult to reinstate all the dismissed workers. The Committee brings to the Government's attention, however, the principle that "no person should be dismissed or prejudiced in his or her employment by reason of trade union membership or legitimate activities, and it is important to forbid or penalize in practice all acts of anti-union discrimination in respect of employment" [see Digest , op. cit., para. 696].

292. The Committee regrets that the Government has not sent its observations on the dismissals and other acts of anti-union discrimination that occurred at the International Textile Corporation S.A., El Salto farm, La Mariposa bottling enterprise and the Municipality of Coban, and that it has not provided information on developments in the legal proceedings concerning the dismissal of several trade union leaders of the Workers' Union of the San Juan de Dios Hospital. The Committee requests the Government to send information in this connection. The Committee also requests the Government to send its observations on the allegations of anti-union dismissals, violations of the right to collective bargaining and acts of reprisal against unionized workers at the Las Delicias farm. Lastly, the Committee once again appeals to the Government for information on the inquiry which the Office of the Attorney-General was asked to carry out into the alleged surveillance of the IUF premises by persons unknown on 23 August 1993.

The Committee's recommendations

293.  In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:

(a) It is with satisfaction that the Committee has learned of the peace agreements and, in particular, of the agreement on the definitive cease-fire (4 December 1996), of the global agreement on human rights and of the agreement concerning socio-economic aspects and agriculture, which establishes the principles of freedom of association, social dialogue, negotiation and consultation. The Committee is certain that civil peace marks the beginning of a new stage in industrial relations. However, the Committee emphasizes that the return to normality in industrial relations must go hand in hand with the elucidation of all the alleged acts of violence against trade unionists in the cases under consideration by means of the initiation of judicial inquiries so that responsibilities can be determined and the guilty parties punished.

(b) The Committee takes note of the decision of the Tripartite Committee for International Affairs to establish a working party to investigate the allegations and hopes that the working party will be able to respond to all the allegations, and counts on the collaboration of the trade unions.

(c) While noting the Government's observations concerning the inquiries into certain acts of violence against trade unionists, the Committee regrets that the Government has not provided information on most of the pending allegations (see the annexed list of pending allegations) and requests it to do so urgently, making sure that judicial inquiries have been initiated, and to keep it informed it in this connection.

(d) Noting that the judicial proceedings brought in relation to acts of violence against trade unionists, to which the Government has referred, do not seem in general to have been concluded nor to have allowed the guilty parties to be identified and punished, the Committee stresses that the absence of sentences against the guilty parties involves a de facto impunity which aggravates the climate of violence and insecurity, and that this is extremely detrimental to the exercise of trade union activities. The Committee expresses the hope that the judicial inquiries under way and those that are to be initiated will put an end to the situation of impunity which has existed up until now.

(e) The Committee also requests the Government to send observations on the allegations of the ICFTU (27 June 1996) and of the CLAT (4 October 1996) concerning the assassination of Luis Armando Pérez, General Secretary of the Trade Union of Customs Workers, the attempted assassination of Sixto Pérez Coche, the Financial Secretary of the Trade Union of Workers of the La Patria Farm and the following of the trade union leader José Antonio García by an armed individual. Furthermore, the Committee repeats its request for information on developments in the inquiries relating to the death of the trade unionist Juan Tarax, Lilian Elizabeth Juárez Escobar, Camilo Ajqui, to the arrests of the trade unionists Silvio Pastor, Pablo Itzel, Teodoro Pastor, Rolando Pastor and Francisco Pastor, and to the abduction of Walter Nájera Molina, who was released.

(f) The Committee requests the complainant organizations to provide more details of the alleged death of Edwin Giovanni Hidalgo (according to the Government he was neither a worker nor a trade union leader at the National Electrification Institute, which is why it needs additional information to confirm his death), and on other, too general allegations indicated in the annex to this report.

(g) The Committee regrets that the Government has not sent its observations on the dismissals and other acts of anti-union discrimination that occurred at the International Textile Corporation S.A., El Salto farm, La Mariposa bottling enterprise and the Municipality of Coban, and that it has not sent information on developments in the legal proceedings concerning the dismissal of several trade union leaders of the Workers' Union of the San Juan de Dios Hospital. The Committee requests the Government to send information in this connection.

(h )The Committee also requests the Government to send its observations on the allegations of anti-union dismissals, violations of the right to collective bargaining and acts of reprisal against unionized workers at the Las Delicias farm.

(i  ) Lastly, the Committee again appeals to the Government to provide information on the inquiry which the Office of the Attorney-General as asked to carry out into the alleged surveillance of the IUF premises by persons unknown on 23 August 1993.

Annex

Allegations of acts of violence against trade unionists
concerning which further information is requested
from the Government or from the complainants

Assassinations of trade unionists

Disappearances, abductions, assaults and

arrests of trade unionists

Case No. 1823

REPORT IN WHICH THE COMMITTEE REQUESTS TO BE
KEPT INFORMED OF DEVELOPMENTS 

Complaint against the Government of Guatemala
presented by
the Trade Union of Workers of the
General Labour Inspectorate (STIGT)

Allegations: Refusal to grant legal personality to a trade union
in the process of establishment and acts of anti-union discrimination

294. The Committee examined this case at its November 1995 and March 1996 meetings presenting on both occasions an interim report to the Governing Body [see 300th Report, paras. 428-441, and 302nd Report, paras. 440-446, approved by the Governing Body at its 264th and 265th Sessions respectively (November 1995 and March 1996)]. The Government subsequently sent observations in communications dated 13 and 27 September, 7 October and 5 November 1996.

295. Guatemala has ratified 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).

A. Previous examination of the case

296. When the Committee examined this case at its March 1996 meeting, the following allegations remained pending: refusal to grant legal personality and approve the by-laws of the Trade Union of Workers of the General Labour Inspectorate (STIGT), dismissal of two members (Ms. Sandra Elizabeth Barrera and Ms. Maldivia Dioderet Barrera) and the change in the functions of 18 inspectors who were founding members of the trade union. The Committee made the following recommendations [see 302nd Report, para. 446]:

(a)Deeply regretting the Government's continuing negative response to its request, the Committee once more urges the Government to grant legal personality immediately to the Trade Union of Workers of the General Labour Inspectorate.

(b)The Committee once more requests the Government to indicate the reasons why the two trade union members (Ms. Sandra Elizabeth Barrera and Ms. Maldivia Dioderet Barrera) renounced legal protection against their removal from office.

(c)As regards the change in functions of 18 inspectors who were founder members of the trade union, bearing in mind that there is substantial evidence that this was an act of anti-union discrimination, the Committee requests the Government once again, in consultation with the 18 inspectors, to revoke the change in their functions and to keep it informed of any measures taken in this respect.

B. The Government's reply

297. In communications dated 13 and 17 September, 7 October and 5 November 1996, the Government declares that, in resolutions dated 18 June and 29 August 1996, the Ministry of Labour and Social Security once again denied the Trade Union of Workers of the General Labour Inspectorate legal personality. The Government adds that the union representatives have requested an audience with the new Minister of Labour in an attempt to put an end to the conflict. With respect to the reasons why the two members of the trade union renounced legal protection against their removal from office, the Government declares that Ms. Sandra Elizabeth Barrera denied belonging to the trade union which was being established and that her employment relationship ended on 23 December 1994 (she currently works for a public entity). Attempts are still being made to contact Ms. Maldivia Dioderet Barrera.

C. The Committee's conclusions

298. As concerns the refusal to grant legal personality and to approve the by-laws of the Trade Union of Workers of the General Labour Inspectorate (STIGT), the Committee notes the Government's reply and observes that it has still not granted legal personality to the trade union. Given this fact, the Committee once more emphasizes that the denial of the right to organize of workers in the labour inspectorate by the Director-General of Labour constitutes a violation of Article 2 of Convention No. 87, ratified by Guatemala, which states that "workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organization concerned, to join organizations of their own choosing without previous authorization". The Committee profoundly deplores the Government's continuing negative response to its requests in this case and once more urges the Government to grant legal personality immediately to the Trade Union of Workers of the General Labour Inspectorate. The Committee requests the Government to keep it informed of any measures it might take in this regard.

299. Turning to why the two STIGT members renounced legal protection against their dismissal, the Committee notes that Ms. Sandra Elizabeth Barrera denied her membership of the STIGT and went to work in a public institution, and also that the Government is still attempting to contact the second person concerned (Ms. Maldivia Dioderet Barrera). The Committee requests the Government to investigate why Ms. Maldivia Dioderet Barrera renounced legal protection against her dismissal, and if it is found that her dismissal was the result of anti-union pressure, it requests that measures be taken to reinstate her in her job. The Committee requests the Government to keep it informed in this regard.

300. As regards the change in the functions of 18 inspectors who were founding members of the trade union, the Committee deplores the fact that the Government has not replied to its previous requests, and asks it once again, in consultation with the 18 inspectors concerned, to revoke the change in their functions. The Committee requests the Government to keep it informed in this regard.

The Committee's recommendations

301. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:

(a) Profoundly deploring the Government's continuing negative attitude to its recommendations in this case, the Committee once again urges the Government to immediately grant legal personality to the Trade Union of Workers of the General Labour Inspectorate (STIGT). The Committee requests the Government to keep it informed of any measures it might take in this regard.

(b) The Committee requests the Government to investigate why Ms. Maldivia Dioderet Barrera, a member of the STIGT, renounced legal protection against her dismissal, and if it is found that her dismissal was the result of anti-union pressure it requests that measures be taken to reinstate her in her position. The Committee requests the Government to keep it informed in this regard.

(c) As regards the change in functions of 18 inspectors who were founding members of the trade union, the Committee requests the Government once again, in consultation with the 18 inspectors, to revoke the change in their functions. The Committee requests the Government to keep it informed in this regard.

Case No. 1876

INTERIM REPORT

Complaint against the Government of Guatemala
presented by
the International Confederation of Free Trade Unions (ICFTU)

Allegations: Abductions of and threats against trade union members

302. The Committee examined this case at its March 1996 meeting and presented an interim report to the Governing Body [see 305th Report, paras. 315 to 326, approved by the Governing Body at its 267th Session (November 1996)].

303. The International Confederation of Free Trade Unions (ICFTU) sent new allegations in a communication dated 2 April 1997. The Government sent new observations in communications dated 31 March, and 16 and 26 May 1997.

304. Guatemala has ratified 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).

A. Previous examination of the case

305. In the previous examination of the case several allegations concerning the abduction or intimidation of, or death threats against trade union officers remained pending. The Committee formulated the following recommendations [see 305th Report, para. 326]:

The Committee requests the authorities to initiate investigations into the death threats against the trade union leader Mr. Victor Hugo Durán and the kidnapping of Mr. Edwin Rolando Yoc, and to inform it of the progress made in the investigations concerning the death threats against Ms. Débora Guzmán Chupén and Ms. Vilma Cristina González, as well as the kidnapping of Ms. González for a period of four hours. The Committee emphasizes that the absence of judgements against the guilty parties creates, in practice, a situation of impunity, which reinforces the climate of violence and insecurity, and which is extremely damaging to the exercise of trade union rights.

Finally, while encouraged by the improved cooperation on the part of the Government, the Committee regrets that the Government has not sent its observations concerning the other allegations and urges it to forward them without delay; more specifically concerning:

The ICFTU's new allegations

306. In its communication dated 2 April 1997, the ICFTU alleges that on 13 March 1997 four heavily armed individuals seized trade union members Eswin Rocael Ruíz Zacarías, Edwin Tulio Enríquez García and Belarnino González de León at the M1 Kwang SA assembly plant ( maquiladora ) (Cantón Najarito, Villa Nueva, Department of Guatemala) and took them to the police station of Villa Nueva, where they were beaten and ill-treated in order to compel them to confess to a theft committed at the maquiladora a week earlier. They were released shortly afterwards, having been warned not to tell anybody about what had happened.

C. The Government's reply

307. In its communications dated 31 March, and 16 and 26 May 1997, the Government states that a judicial inquiry has been opened into the attempt (using a firearm) on the life of Mr. Víctor Hugo Durán, following a complaint lodged by the trade union federation of which he is an officer. The Government also provides information on the progress of inquiries into the death threats against Ms. Débora Guzmán and states that both she and her husband have benefited from protective measures by the authorities so that they can work.

308. Concerning the alleged abduction of Mr. Salvador Archila, the Government states that he was captured on 31 March 1996 in the context of judicial proceedings for having held hostage and threatened the lives of several public authorities and persons for three weeks during the occupation of the "Los Cerros" farm (San José El Rodeo) by rural workers. The judicial authority issued an order for his house arrest and the judicial proceedings are still under way.

309. The Government also states that Ms. Verónica Vázquez told officials from the human rights department who interviewed her that on 27 February at about 6 p.m. as she was leaving work she was followed by a heavily built man; thinking he intended to assault her, she walked quickly but the man seized her by the shoulders and asked her whether she was the secretary of the Federation of Banking Employees, physically attacked her and attempted to force her to get into a car, but she managed to escape and got on a minibus. Ms. Vázquez also stated that she had chosen to stop working out of concern for her personal safety and to date has not reported these violent acts committed against her to the respective authorities. Since that time, Ms. Vázquez has not been threatened or persecuted and is working normally in the Federation of Banking Employees as administrative secretary.

310. Concerning the alleged threats and acts of intimidation against Mr. Félix Hernández, Mr. Jorge Galindo and Mr. Danilo Aguilar, officers of the National Federation of Public Servants' Trade Unions (FENASEP), the Government states that officials of the human rights department spoke with trade union officer Jorge Galindo, secretary responsible for disputes of the federation, who stated that he had in fact been persecuted and received death threats from unidentified men. The threats were made on 19 February 1996 by unidentified men driving a beige four-door BMW with Californian licence plates and tinted windows. These unidentified persons, who were heavily armed, handed an envelope to a member of the federation containing a threat against Mr. Félix Hernández, Secretary-General of FENASEP, and four other officers, warning them that they would be killed if they did not leave the country. The persons concerned lodged a complaint regarding this act of intimidation and inquiries are under way.

311. Regarding the arrest and ill-treatment of Messrs. Eswin Rocael Ruíz Zacarías, Edwin Tulio Enríquez García and Belarnino González de León, the Government has provided a number of details concerning the investigations undertaken in this matter. The investigations appear to establish a link between the theft of machines in the subcontractor's enterprise and the arrests by the security guards of the private police. The magistrate of Amatitlán has commenced an inquiry, and has given instructions for the case to be presented before the judicial authorities.

D. The Committee's conclusions

312. The Committee notes with concern that the allegations in this case refer to the abduction or detention of, or acts of intimidation or death threats against trade union officers and members. Firstly, the Committee deeply deplores these acts and points out that "freedom of association can only be exercised in conditions in which fundamental human rights, and in particular those relating to human life and personal safety, are fully respected and guaranteed" and that "the rights of workers' and employers' organizations can only be exercised in a climate that is free from violence, pressure or threats of any kind against the leaders and members of these organizations, and it is for governments to ensure that this principle is respected" [see Digest of decisions and principles of the Freedom of Association Committee , 4th (revised) edition, 1996, paras. 46 and 47].

313. The Committee notes that according to the Government: (1) trade union officer Mr. Salvador Archila was not abducted, but detained and later placed under house arrest by the authorities in the context of judicial proceedings after having held hostage and threatened the lives of several public authorities and individuals for three weeks during the occupation of the "Los Cerros" farm by rural workers; (2) trade union officer Ms. Verónica Vázquez was the victim of a failed abduction attempt but chose not to lodge a complaint; (3) trade union officers Félix Hernández, Jorge Galindo and Danilo Aguilar lodged complaints concerning the death threats made against them and inquiries into the matter are currently under way; (4) a judicial inquiry has been opened into the attempt (using a firearm) on the life of trade union officer Víctor Hugo Durán; (5) inquiries are under way concerning the death threats addressed to trade union officer Débora Guzmán, who is benefiting from special measures to ensure her safety; and (6) the arrests of trade unionists, Eswin Rocael Ruíz Zacarías, Edwin Tulio Enríquez García and Belarnino González de León on 13 March 1997 are the subject of judicial inquiries. The Committee requests the Government to keep it informed of the progress of the above-mentioned judicial proceedings or inquiries.

314. However, the Committee deplores the fact that the Government has not replied to the allegation concerning the death threats against Mr. Juan Francisco Alfaro Mijangos, Secretary-General of the Confederation of United Trade Unions of Guatemala (CUSG), or provided information on the request made during the previous examination of the case to initiate investigations into the abduction of Mr. Edwin Rolando Yoc (son of a trade union officer, now free). The Committee urges the Government to initiate inquiries as a matter of urgency into the allegations concerning Mr. Alfaro and Mr. Edwin Rolando Yoc and to keep it informed in this respect. The Committee requests the Government to keep it informed of the progress of the inquiries into the death threats made against Ms. Vilma Cristina González.

315. Moreover, in view of the fact that the inquiries into most of the allegations have not yet been completed, the Committee reiterates its previous conclusions to the effect that the absence of judgements against the guilty parties creates, in practice, a situation of impunity, which reinforces the climate of violence and insecurity, and which is extremely damaging to the exercise of trade union rights.

The Committee's recommendations

316. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:

(a) The Committee notes with concern that the allegations refer to the abduction of and death threats and acts of intimidation against trade union officers and deeply deplores these acts.

(b) The Committee requests the Government to keep it informed of the progress of the inquiries into the death threats against (1) trade union officers Félix Hernández, Jorge Galindo and Danilo Aguilar; (2) trade union officer Débora Guzmán; and (3) trade union member Vilma Cristina González.

(c) The Committee also requests the Government to keep it informed of the progress of the inquiry into the attempt (using a firearm) on the life of trade union officer Víctor Hugo Durán and the judicial inquiry regarding the arrests of Eswin Rocael Ruiz Zacarías, Edwin Tulio Enríquez García and Belarnino González de León.

(d) Deploring the fact that the Government has not replied to the allegation concerning the death threats against Mr. Juan Francisco Alfaro Mijangos, Secretary-General of the Confederation of United Trade Unions of Guatemala (CUSG), or provided information on the request made in the previous examination of the case to initiate investigations into the abduction of Mr. Edwin Rolando Yoc (son of a trade union officer, now free), the Committee urges the Government to initiate inquiries without delay into the allegations concerning Mr. Alfaro and Mr. Edwin Rolando Yoc and to keep it informed in this respect.

(e) The Committee emphasizes that the absence of judgements against the guilty parties creates, in practice, a situation of impunity, which reinforces the climate of violence and insecurity, and which is extremely damaging to the exercise of trade union rights.

Case No. 1898

DEFINITIVE REPORT

Complaint against the Government of Guatemala
presented by
the Latin American Central of Workers (CLAT)

Allegations: Restrictive legislation relating to the
trade union rights of state workers

317. The complaint was submitted in a communication from the Latin American Central of Workers (CLAT) dated 11 July 1996. The Government sent its observations in a communication dated 8 April 1997.

318. Guatemala has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), as well as the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

319. In its communication of 11 July 1996 the Latin American Central of Workers (CLAT) alleges that Decree No. 35-96 issued by the Congress of the Republic of Guatemala (reforms to the Unionization and Regulation of Strikes by State Workers Act) contains provisions contrary to the national Constitution and to ILO Conventions Nos. 87 and 98. The complainant annexes a copy of Decree No. 35-96 of May 1996, reproduced below:

Section 1 -- Section 1 of Decree No. 71-86 issued by the Congress of the Republic is amended as follows:

Section 1 -- Right to organize. State workers and their decentralized and autonomous organizations may exercise their rights to organize freely and to strike in accordance with the provisions of the current Act, with the exception of the armed forces and the police.

Section 2 -- Section 4 of Decree No. 71-86 issued by the Congress of the Republic is amended as follows:

Section 4 -- Proceedings. The proceedings to be observed for the exercise of the right to strike of state workers and their decentralized and autonomous organizations shall be those set forth in this Act and, in addition, those stipulated in the Labour Code as long as they are applicable and do not infringe the following provisions:

(a) Direct proceedings shall be obligatory for the conciliatory conclusion of collective and other agreements concerning working conditions, with due account being taken of the legal options contained in the General Budget of Income and Expenditure of the State when determining them and, where appropriate, in those of the decentralized and autonomous organizations concerned. This proceeding shall be considered exhausted if within a time-limit of 30 days following the submission of the request by the party concerned no agreement has been reached, unless the parties arrange to extend said time-limit.

(b) In the case of failure to prove that direct proceedings have been exhausted, the respective dispute will not be examined, the judge having of his own motion to adopt the necessary measures to attain the proof.

(c) Once it has been proven that the above requirement has been fulfilled, the judge will immediately rule on the basis of the respective request and statement of petitions and the dispute will be considered filed, for the sole purpose of neither party taking reprisals against the other nor stopping the other exercising its rights.

Acts penalizing labour infringements or acts implying the exercise of rights contained in the Act do not constitute reprisals. Therefore, workers may terminate their working relationship without judicial authorization when there are grounds for indirect dismissal attributable to the State or in the event of resignation, retaining the right to claim any benefits to which they may be entitled by law through recourse to the applicable legal procedures.

Neither do the cancellation of nominations or contracts of employment constitute acts of reprisal by a state party or by its decentralized or autonomous organizations in the following cases:

(c.1) when the worker commits an act which is grounds for justified dismissal; and

(c.2) in cases of agreed and actually held strikes, whatever name they may go by, whenever they imply work being abandoned or suspended collectively, or affect those public services designated as essential under this Act.

In these cases, the nominating authority of the State and those of its decentralized and autonomous organizations, are authorized to cancel nominations and contracts of employment, without incurring any liability and without prior judicial authorization.

(d) For the purposes of the provisions of the Constitution of the Republic of Guatemala, the following public services are designated as essential:

(d.1) hospitals, health centres and posts, as well as public hygiene and sanitation services;

(d.2) telephone, air navigation, telegraph and postal services;

(d.3) the justice authority and its auxiliary institutions;

(d.4) state and municipal urban and rural public transport of all kinds;

(d.5) water supply services for the population and services relating to the generation, transport and distribution of electric power and fuels in general; and

(d.6) public safety services.

(e) When the conciliation proceedings are exhausted without a settlement or an agreement having been reached, socio-economic collective disputes in which workers providing essential public services participate as a party shall be subject to obligatory arbitration as provided in Chapter 3, Title 12, of the Labour Code. In this case, the judge is not obliged to rule on the legality of the strike.

The right to strike of state workers and their decentralized and autonomous organizations is subject to the provisions of this Act and of the Labour Code, with the exception of the essential public services indicated in this section, which must in no case be affected.

(f) In addition to the labour sanctions to be imposed on anyone participating in the types of strike listed in clause (c) of this section, he will be subject to any civil or criminal liability he may have incurred.

(g) Strikes resulting from inter-union sympathy or sympathy with motions proposed by ad hoc committees or in associations with interests unrelated to socio-economic claims are categorically prohibited.

Section 3 -- This Decree will come into force on the day following its publication in the Diario Oficial .

B. The Government's reply

320. In its communication dated 8 April 1997 the Government states that on 27 May 1996, the Diario Oficial published Decree No. 35-96 issued by the Congress of the Republic of Guatemala, which amends Decree No. 71-86, the Unionization and Regulation of Strikes of State Workers Act. Guatemala's trade union organizations publicly condemned the action taken by the legislative body, considering that these reforms limit the right to organize freely and bargain collectively. They, therefore, proceeded on 6 June 1996 to lodge an action asserting the unconstitutionality of Decree No. 35-96 issued by the Congress of the Republic with the Court of Constitutionality. On 13 January 1997 that Court dismissed the claim of unconstitutionality, awarding the costs to the party bringing the case and fining the auxiliary lawyers, the parties being informed of the decision on 4 February 1997.

C. The Committee's conclusions

321. The Committee observes that in this case the complainant alleges that Decree No. 35-96 contains provisions that are contrary to the national Constitution and to ILO Conventions Nos. 87 and 98. The Government has replied that the Court of Constitutionality handed down a sentence dismissing the claim of unconstitutionality lodged by the trade union organizations. The Committee recalls that it is not its role to state whether or not national legal standards comply with the national Constitution; it is, however, its role to examine the prevailing national standards in the light of the principles of freedom of association and those included in related ratified Conventions.

322. In this connection, the Committee observes that Decree No. 35-96 excludes the armed forces and the police from the right to organize and the right to strike (section 1), that it imposes the use of direct proceedings (conciliation) for concluding collective and other agreements and that collective disputes can only be brought before the judicial authorities after a period of 30 days (section 2(a), (b) and (c)), that it prohibits strike action in certain services deemed to be essential (section 2(c) and (d)) and subjects them to obligatory arbitration, and lastly, that it prohibits sympathy strikes.

323. In the Committee's view, the exclusion of the armed forces and the police from the rights to organize and to strike is not contrary to the principles of freedom of association, as Article 9, paragraph 1, of Convention No. 87 makes the following provision: "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."

324. In respect of the legal obligation for conciliation in the framework of collective bargaining in the public sector, even up to 30 days, the Committee considered that legislation which provides for voluntary conciliation and arbitration in industrial disputes before a strike may be called cannot be regarded as an infringement of freedom of association [see Digest of decisions and principles of the Freedom of Association Committee , 4th edition, 1996, para. 500]. The Committee therefore considers that these provisions do not infringe the principles of freedom of association.

325. However, the Committee considers that some of the essential services for which the right to strike is prohibited are not essential in the strict sense of the term (services the interruption of which would endanger the life, personal safety or health of the whole or part of the population) [see Digest , op. cit., para. 526], i.e. the postal service, transport and the generation, transport and distribution of fuels [see Digest , op. cit., para. 545]. Likewise, as regards the prohibition of sympathy strikes, the Committee has considered that a general prohibition of sympathy strikes could lead to abuse and workers should be able to take such action provided the initial strike they are supporting is itself lawful [see Digest , op. cit., para. 486] and that a ban on strike action not linked to a collective dispute to which the employee or union is a party is contrary to the principles of freedom of association [see Digest , op. cit., para. 489].

326. In these circumstances, the Committee requests the Government to take measures to amend the legislation so that (1) strikes are only prohibited in essential services in the strict sense of the term, and (2) it does not provide for a general prohibition of sympathy strikes and that the principles cited in the preceding paragraph are respected.

327. The Committee draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to this case.

The Committee's recommendations

328. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:

(a) The Committee requests the Government to take measures to amend the legislation so that (1) strikes are only prohibited in essential services in the strict sense of the term, and (2) it does not provide for a general prohibition of sympathy strikes and that the principles cited in the conclusions are respected.

(b) The Committee draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to this case.

Case No. 1863

REPORT IN WHICH THE COMMITTEE REQUESTS TO BE
KEPT INFORMED OF DEVELOPMENT

Complaint against the Government of Guinea
presented by
the Trade Union of Workers of Guinea (USTG)

Allegations: Repression, arrests and conviction o
trade union leaders and strikers following a labour dispute
in the teaching sector, transfer of a trade union member

329. The Committee examined this case at its May 1996 meeting and presented an interim report to the Governing Body [see 304th Report, paras. 321-364, approved by the Governing Body at its 266th Session (May-June 1996)].

330. The Government sent its observations and information on the case in a communication dated 21 March 1997.

331. Guinea has ratified 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).

A. Previous examination of the case

332. At its May-June 1996 meeting, the Committee noted that this case concerned allegations of anti-union repression during a labour dispute in the teaching sector, including arrests and convictions, the transfer of a trade union member and the withholding of wages for having in strike action.

333. It observed that the complainant's, the Trade Union of Workers of Guinea (USTG), and the Government's version of events tallied regarding some points but not on others. They both confirmed that collective bargaining took place on a sectoral basis in 1994 and 1995. However, the complainant considered that the failure correctly to apply regulations pertaining to teachers, delays in the payment of wages, the breakdown in national scientific research and, particularly, the rising cost of living, had forced it to demand adjustments to basic wages and the introduction of a minimum guaranteed inter-occupational wage (SMIG) -- issues that had already been raised in April 1994 -- in a memorandum that was sent to the Government on 1 November 1995. The USTG explained that on 27 November 1995 notice had been issued of a 72-hour general strike across the country from 18 to 20 December 1995, since all of the demands contained in the memorandum of 1 November had not been met. The complainant acknowledged that the other organization representating teachers, the FSPE, which is affiliated to the CNTG, had refused to go on strike. However, the General Secretary of the SLECG/USTG, Mr. Soumah, and Mr. Condé had been detained for 48 hours at the beginning of the strike. Several strikers had also been given a one-year suspended sentence. One trade union member had been transferred and the police had intervened to disperse the teachers and researchers gathered at a general assembly.

334. The Government acknowledged that the USTG had sent a memorandum containing its demands on 1 November 1995. However, it had wanted the memorandum to be considered at a later date by the Advisory Committee on Labour and Social Legislation because the demands had been shelved during previous negotiations. The Government stressed that, after the strike notice was issued, the parties had agreed to open wage negotiations on 15 December 1995 which would cover the pay of all public officials, not just teachers, in accordance with the register of grievances submitted by the federations on 1 May 1995. However, in the meantime the SLECG, which is affiliated to the USTG, had refused to negotiate alongside the rival union. On 15 December, the Government had insisted that the prior mutual commitment to broader-based negotiations on pay for all public service workers to be attended by SLECG delegates be respected. The Government acknowledged that the strike received sporadic support from 18 December. It maintained that in several establishments, striking teachers used violence to undermine non-strikers' right to work. It regretted that, despite its requests, the SLECG had refused to take part in negotiations on 19 and 20 December. It stated that its negotiations with trade union federations on the Advisory Committee on Labour and Social Legislation had resumed on 21 December.

335. In the light of the above, the Committee had adopted the following recommendations:

(a) Deeply regretting that Mr. Soumah, General Secretary of the SLECG, was under arrest throughout the strike, the Committee requests the Government to provide information on developments in his situation.

(b) Regretting the arrest, detention and conviction of striking trade union members in December 1995 and January 1996, the Committee requests the Government to send its observations on this aspect, along with the text of the sentences handed down on the six teachers by the court in Conakry on 29 December 1995, state why Mr. Mamadou Cellou Diallo, Mr. Mohamed Sankhou and the SLECG representative in Télimélé were arrested and provide information on their current situation.

(c) Recalling that the use of the police for strike-breaking purposes is an infringement of trade union rights and that the authorities should resort to the use of force only in situations where law and order is seriously threatened, the Committee requests the Government to arrange for an independent, impartial and in-depth inquiry in order to determine the nature of the police actions and find out who is responsible, and to keep it informed in this respect.

(d) Finally, with regard to the transfer of a trade union leader for having participated in a strike, the Committee requests the Government to establish whether the allegation is true and to take the necessary steps to ensure that the SLECG leader is reinstated in his post.

B. The Government's reply

336. The Government states firstly that it notes the Committee's concern regarding developments in the situation of Mr. M'Bemba Soumah, General Secretary of the SLECG, and of the other trade union officials questioned for the purposes of the inquiry. It states however that the persons concerned were questioned on 18 December 1995 and temporarily released on 21 December 1995 and that the formalities to secure this release were such as to extinguish the public right of action initiated against them for the alleged actions.

337. Regarding the situation of the six teachers, the Government specifies that they were each given a one-year suspended sentence, as evidenced in the terms of the judgement that the Government attaches to its reply. Seven teachers had been prosecuted for disturbing public order and for hindering freedom to work. One of them, Mr. Victor Kamano, was released. The others (Mr. Moriba Kandé, Mr. Mamadou Bano Diallo, Mr. Ibrahima Diallo, Mr. Sékou Fofana, Mr. Faya Traoré and Mr. Mamadou Sow) were given one-year suspended sentences for violation of the freedom to work by the justice of the peace of Conakry with competence in penal offences and cases of first instance, at a hearing in open court on 29 December 1995, after due hearing of the parties.

338. As regards the transfer of Mr. Frantoma Bérété to Macenta, the Government states that he has now returned to work and is exercising his trade union activities normally in that prefecture. His presence in Macenta has even allowed him to win over that forest region and to strengthen the rank-and-file of his federation, being elected to the post of General Secretary of the SLECG.

339. With respect to the questioning of Mr. Louis M'Bemba Soumah, Mr. Souleymane Condé, Mr. Mamadou Cellou Diallo, Mr. Mohamed Sankhou and other trade union officials, the Government states that the persons concerned were questioned for the purposes of the investigation by the criminal investigation service and that in this particular case this simple questioning did not exceed the statutory 72 hours, following which their temporary release was obtained, the case subsequently being closed without further action.

340. In conclusion, the Government says it observes an on-going policy of dialogue and openness with all the social partners, respecting the identity of each organization, with the aim of promoting social justice, equality and loyalty. In order to safeguard freedom of association, it makes every effort to publicize and retain a human element in all administrative, police and security practices that could interfere with that freedom. It asks for the constructive support of all those entitled to these freedoms, in particular through respect for the principles upholding public order and the promotion of the freedoms established in the fundamental law.

C. The Committee's conclusions

341. The Committee notes the information sent by the Government in reply to its recommendations. It observes in particular that Mr. Soumah, the General Secretary of the SLECG, and the other trade union officials questioned on 18 December 1995 were released on 21 December after 72 hours, that no charges were laid against them and that they have now been unconditionally released.

342. The Committee recalls in this regard that measures depriving trade unionists of their freedom on grounds related to their trade union activity, even where they are merely summoned or questioned for a short period, constitute an obstacle to the exercise of trade union rights [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 77]. It requests the Government in future not to detain trade unionists for questioning when they peacefully exercise their right to strike which is an essential means for workers and their organizations to promote and defend their economic and social interests.

343. Regarding the one-year suspended sentences given to some of the teachers participating in the strike, the Committee notes from the decision handed down in this case that at a public hearing the justice of the peace of Conakry found them guilty of interference in freedom to work, after due hearing of the parties.

344. The Committee recalls however in this regard that simply taking part in picketing and firmly but peacefully inciting other workers to keep away from their workplace cannot be considered unlawful. The case is different, however, when picketing is accompanied by violence or coercion of non-strikers in an attempt to interfere with their freedom to work; such acts constitute criminal offences in many countries [see Digest, op. cit., para. 586].

345. The Committee regrets that the Government has not sent information on the independent and impartial inquiry it requested the Government to arrange in order to determine the nature of the police actions during its intervention to break up the strike in 1995. It again requests the Government to proceed with this inquiry and to keep it informed of the results.

346. Lastly, with respect to the transfer of Mr. Frantoma Bérété, the Committee observes that the Government does not deny the fact, and notes with interest that according to the Government he has since been elected General Secretary of the SLECG in Macenta and that he has developed trade union action in that prefecture. Nevertheless, the Committee reiterates its previous conclusion that he should have the option of being reinstated in his previous post if he so desires.

The Committee's recommendations

347. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:

(a)The Committee requests the Government in future not to detain trade union activists and leaders for questioning when trade unionists are only peacefully exercising their right to strike which is an essential means of promoting and defending their economic and social interests.

(b)The Committee again requests the Government to send the results of the independent and impartial inquiry which it asked the Government to arrange in order to determine the nature of the police action during its intervention to break up the strike in 1995.

(c)With respect to the transfer of Mr. Frantoma Bérété, the Committee reiterates its previous conclusion that he should have the option of being reinstated in his previous post, if he so desires

Case No. 1890

REPORT IN WHICH THE COMMITTEE REQUESTS TO BE KEPT
INFORMED OF DEVELOPMENTS 


Complaint against the Government of India
presented by
the International Union of Food, Agricultural, Hotel, Restaurant,
Catering, Tobacco and Allied Workers' Associations (IUF)

Allegations: Dismissal and suspension of trade unionists

348. In a communication of 29 May 1996, the International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers' Associations (IUF) presented a complaint of infringements of trade union rights against the Government of India, on behalf of its affiliate, the Fort Aguada Beach Resort Employees' Union (FABREU).

349. The Government supplied its observations on the case in a communication dated 5 March 1997 along with several enclosures.

350. India 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. The complainant's allegations

351. In its communication of 29 May 1996, the IUF indicates that its complaint relates to certain infringements of trade union rights at the Fort Aguada Beach Resort, a subsidiary of the Taj Hotel group, where the Government of India has failed to protect fully and adequately the rights of union activists to fulfil their tasks in a safe environment.

352. More specifically, the IUF explains that Mr. Laximan Malwankar, a room attendant for more than ten years, was elected President of the Fort Aguada Beach Resort Employees' Union (FABREU) in Goa, India, on 17 August 1990. The IUF alleges that Mr. Malwankar was repeatedly denied time off to attend meetings with the management of the company or to perform union work. It provides the following examples to substantiate its allegations.

353. First of all, there was the refusal of the head of the housekeeping department to allow Mr. Malwankar time off to perform his union duties in December 1992. Then in December 1993, there was the refusal to release Mr. Malwankar from his duties to attend a meeting of a Provident Fund Trustee Board to which he had just been elected with the largest number of votes. In May 1994, Mr. Malwankar was instructed that he would be transferred to another hotel of the same group (the Taj Coromandel Hotel in Madras). This transfer order was issued at a critical time for the union when it was preparing its charter of demands for the forthcoming negotiations in July 1994. According to the IUF, it was the first time that a room attendant had been sent to another hotel of the Taj group for training and it was the first time for Mr. Malwankar after ten years of service. In August 1994, a suit for permanent injunction was issued against him by the management and he was prohibited from entering hotel premises thereafter.

354. The IUF then goes on to explain that a notice of strike action was issued by the FABREU on 11 November 1994 as a result of these anti-union attitudes. The FABREU threatened to go on strike if the transfer order of Mr. Malwankar was not cancelled and if no agreement was reached on the charter of demands. In the face of management's refusal to accede to these demands, there was a subsequent strike by 150 employees (out of a permanent workforce of 204 persons) which started on 24 December 1994. At that point, the management had a suit for injunction issued against 133 of the 150 staff members who went on strike. These 133 persons were prohibited from entering the hotel premises for the duration of the strike and ordered to remain at least 300 metres away from the hotel.

355. The IUF adds that Mr. Malwankar received a notice of dismissal on 16 January 1995. Moreover, although management promised to meet FABREU's demands when the strike was suspended on 5 April 1995, it subsequently suspended seven strikers and transferred eight others in April 1995. Last but not least, management informed the general secretary of FABREU that a new organization called the Fort Aguada Beach Resort Workers' Association had been established in the hotel and that an agreement had been signed with it on 20 October 1995. Management therefore would no longer recognize FABREU nor enter into any further correspondence with it.

356. The IUF points out that up to now, the new association has not been certified by the Goan administration. Moreover, despite a situation of tremendous pressure on the workforce to associate itself with the Fort Aguada Beach Resort Workers' Association and to disaffiliate from FABREU, 189 employees have paid their annual membership fees to the latter. This union remains until now the only registered union at the Fort Aguada Beach Resort. The IUF adds that as Mr. Laximan Malwankar was a protected worker as per the provisions of the Industrial Disputes Act, 1947, he could not be dismissed without the prior permission of the Industrial Tribunal. Furthermore, FABREU has repeatedly requested the Labour Commissioner to prosecute the management of Fort Aguada Beach Resort for unfair labour practices, to no avail. The same Labour Commissioner has not responded to FABREU's request to obtain a copy of the settlement signed with the union years ago. There was no answer either from the Labour Secretary.

B. The Government's reply

357. In its communication dated 5 March 1997, the Government replies to the IUF's allegations on a point by point basis.

358. Referring to the allegation that the housekeeping department refused to give time off to Mr. Laximan Malwankar in December 1992 to perform his union duties, the Government indicates that the first instance where he was not allowed to join union duties, as per the correspondence exchanged between the employer and the union, was in the month of May 1992. The Government encloses, along with its reply, the following correspondence exchanged between Mr. Malwankar and the employer: (i) notice dated 30 May 1992 from employer to Mr. Malwankar; (ii) letter dated 4 June 1992 from Mr. Malwankar to Resident Manager; (iii) employer's letter dated 6 June 1992; (iv) union's letter dated 17 June 1992; (v) company's letter dated 18 June 1992; and (vi) union's letter dated 7 December 1992. The Government draws attention particularly to paragraph 14 of the letter of 7 December 1992 from the union which reads: "In the meantime, there is a lot of pending union work, the committee members hereby request you to continue presently the present practice of releasing our President." According to the Government, this clearly indicates that Mr. Malwankar was being released by management for the union work and this was an isolated incident, where the management had objected due to his behaviour towards his superiors and especially his refusal to follow orders during the course of his work.

359. Concerning the refusal to release Mr. Malwankar from his duties in December 1993 to attend a meeting of the Provident Fund Trustee Board to which he had just been elected, the Government explains that Mr. Malwankar was elected as trustee on 27 October 1993 and transferred from the hotel to go to Madras on 3 May 1994. During this period, only one meeting of the Provident Fund Trustee Board was held and he was not present for the said meeting. There is no evidence to show that he had asked management permission to attend the meeting and was refused. The communication of the meeting was put on the notice board which implied that all members should attend such a meeting.

360. Referring to the transfer order issued to Mr. Malwankar in May 1994 at a time when the union was preparing the charter of demands, the Government points out that as per the terms and conditions of the employment concerned, workers are liable to be transferred for training, etc. Mr. Malwankar was instructed to go on transfer for training for a period of three months as per the terms and conditions of his employment. He refused to comply with the orders. This was mutually discussed by the union and the management. But the parties failed to reach a settlement. Consequently, the union issued a notice of strike action on 11 November 1994 and the cooling-off period of six weeks was over on 22 December 1994. The industry was declared a public utility service during this period. The Government referred the whole dispute to the Industrial Tribunal on 20 December 1994. During the period of six weeks, the workers had not gone on strike but the strike commenced after the expiry of six weeks, i.e. with effect from 24 December 1994. Moreover, the Government contends that workers went on strike although the adjudication proceedings were pending.

361. Regarding the fact that Mr. Malwankar was prohibited from entering hotel premises in August 1994, the Government states the following. After the transfer orders of Mr. Malwankar were issued sending him for training to Madras, he was relieved from the establishment in Goa on 3 May 1994 with instructions to report to the hotel in Madras for training. He refused to follow these instructions. Thereafter, the company, claiming that he was entering the premises and disturbing the day-to-day functioning of the hotel, obtained a temporary injunction (a copy of the order of the Civil Judge passed on 4 September 1994 along with the interim order of 6 August 1994 is enclosed by the Government).

362. Turning to the allegation that 133 of the 150 strikers were prohibited by management from entering hotel premises, the Government explains that when the strike was on, there were reports of minor incidents of violence. Since the industry concerned is of a nature where such incidents of violence are likely to discourage customers of hotels, the company obtained an injunction restricting the workers on strike from entering an area of within 500 metres of the premises.

363. Regarding the notice of dismissal received by Mr. Malwankar on 16 January 1995, the Government states that Mr. Malwankar, after having been charge-sheeted, was dismissed on 16 January 1995. The company's application seeking approval of termination has been filed under section 33(b) of the Industrial Disputes Act. (A copy of the application dated 16 November 1995 filed by the company before the Industrial Tribunal is enclosed by the Government.)

364. The Government then turns to the allegation that although the strike was suspended on 5 April 1995 with a promise by management to meet the union's demands, there was the subsequent suspension of seven strikers and transfer of eight others. The Government indicates that on account of the alleged acts of misconduct on the part of a number of workers, the management contemplated taking action against a set of 26 workers and thereafter added to this list the names of 14 workers. Then an agreement was reached between the employees and the management about calling off the strike on 5 April 1995. Prior to that, the majority of employees had already joined their duties. This understanding was reached between the union and the management through a mediator by the name of Mr. Pratap Masterjee. The management agreed to drop the inquiries against all employees with the exception of seven workmen and eight others were assured that their charges would be dropped if they went on transfer. Their transfer orders were issued but since they did not obey the orders, these 15 persons are facing inquiries which are in progress. (A copy of the letter dated 5 April 1995 from Mr. Masterjee and the union's letter of 5 April 1995 calling off the strike, along with the list of employees against whom the inquiries were contemplated are enclosed by the Government.)

365. As regards management's action to sign an agreement with the newly formed Fort Aguada Beach Resort Workers' Association on 20 October 1995 leading to the derecognition of FABREU, the Government points out that the said settlement was reached at a bilateral level in accordance with the provisions of section 2(p) read with 18(1) of the Industrial Disputes Act. This union had filed an application for registration on 20 October 1995, and the management and the union signed the settlement on the same date. This settlement was in respect of a 30 per cent bonus for the year 1994-95 and an agreement was finally reached on a 20 per cent bonus. (A copy of the settlement is enclosed by the Government.) The Government goes on to state that all employees who are members of the Fort Aguada Beach Resort Workers' Association as to date are contributing their membership subscriptions and are also members of the other union, namely FABREU. The newly formed association also signed another agreement with the employer, under section 2(p) of the Industrial Disputes Act, 1947, thereby settling the charter of demands. The Government has already referred FABREU's charter of demands dated 27 June 1994 to the Industrial Tribunal for adjudication.

C. The Committee's conclusions

366. The Committee notes that the allegations in this case refer to various acts of harassment and of anti-union discrimination carried out against Mr. Laximan Malwankar, President of the Fort Aguada Beach Resort Employees' Union (FABREU), in Goa, India. These allegations also concern the suspension of seven FABREU members as well as the transfer of eight others by the management of the Fort Aguada Beach Resort further to strike action undertaken by FABREU. Lastly, these allegations refer to the recognition by management of a new association to the detriment of FABREU which was subsequently derecognized by management.

367. As regards the allegation that Mr. Malwankar was repeatedly denied time off to perform union work, the Government indicates that the first and only instance where Mr. Malwankar was not allowed to join union duties was in May 1992, as per the correspondence exchanged between the union and the management which the Government encloses with its reply. To show that Mr. Malwankar was usually released by management to perform union work, the Government refers in particular to paragraph 14 of a letter dated 7 December 1992 from union committee members to management which reads: "In the meantime, there is a lot of pending union work, the committee members hereby request you to continue presently the present practice of releasing our President." The Committee considers however that this paragraph does not represent overwhelming evidence at all that management was releasing Mr. Malwankar regularly for union work since all the other paragraphs in this letter, which is three pages long, would appear to indicate the contrary (the text of this letter is reproduced in the Appendix).

368. Moreover, with regard to the alleged refusal by management to release Mr. Malwankar from his duties in December 1993 to attend a meeting of the Provident Fund Trustee Board, the Government merely confirms that Mr. Malwankar was not present for the said meeting and adds that there is no evidence to show that he had asked management permission to attend the meeting and was refused. The Committee believes, however, based on the above letter provided by the Government, that this is but one more incident which further serves to illustrate management's reticence to allow Mr. Malwankar time off to perform his union duties. In this respect, the Committee recalls that the relevant provisions of the Recommendation concerning the protection and facilities to be afforded to workers' representatives in the undertaking (No. 143), stipulate, among other things, that workers' representatives in the undertaking should be afforded the necessary time off from work, without loss of pay or social and fringe benefits, for carrying out their representation functions in the undertaking (Paragraph 10(1)), and that while workers' representatives may be required to obtain permission from the management before taking time off, such permission should not be unreasonably withheld (Paragraph 10(2)).

369. Regarding the transfer order issued to Mr. Malwankar in May 1994, the Government indicates that Mr. Malwankar was instructed to go for training to another hotel of the same group in Madras as per the terms and conditions of his employment. The Committee observes however that Mr. Malwankar was instructed to leave for training in May 1994 for a period of three months which implied that he would have been absent during the preparation of the union's charter of demands as well as during the negotiations to be held with management in June 1994 had he complied with the transfer order. In the first instance, the Committee fails to see what the need was to transfer Mr. Malwankar for training at the very moment when the union was preparing its charter of demands. Moreover, in view of the pattern of harassment previously encountered by Mr. Malwankar, the Committee cannot but conclude that the transfer order issued to Mr. Malwankar in May 1994 was based on his status as a trade union official as well as his trade union activities. As regards Mr. Malwankar's dismissal notice, the Committee notes that in the application filed by the company before the Industrial Tribunal seeking approval of termination of Mr. Malwankar's services, several acts of misconduct are put forward as reasons for justifying Mr. Malwankar's dismissal. The Committee observes however that the notice of dismissal received by Mr. Malwankar on 16 January 1995 was issued after FABREU officials and members undertook strike action in November 1994, inter alia, on account of management's refusal to cancel Mr. Malwankar's transfer order and its issuance of a suit for permanent injunction against him in August 1994. The Committee therefore once again concludes that Mr. Malwankar was dismissed for his trade union status and activities.

370. In this respect, the Committee would recall that one of the fundamental principles of freedom of association is that workers should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment, such as dismissal, demotion, transfer or other prejudicial measures. This protection is particularly desirable in the case of trade union officials because, in order to be able to perform their trade union duties in full independence, they should have a guarantee that they will not be prejudiced on account of the mandate which they hold from their trade unions [see Digest of decisions and principles of the Committee on Freedom of Association, 4th edition, 1996, para. 724]. The Committee urges the Goverment to take the necessary steps to have Mr. Malwankar reinstated in his post, if he so desires. In this instance, the Committee notes that the company has filed an application seeking approval of termination of Mr. Malwankar's employment before the Industrial Tribunal. The Committee requests the Government to keep it informed of the outcome of the court proceedings in this case.

371. As regards the allegation that management subsequently suspended seven FABREU members and transferred eight others in April 1995 although it had initially promised to meet FABREU's demands when the strike was suspended, the Government acknowledges that management did follow such a course of action although it states that it did so on account of acts of misconduct by the employees concerned. However, the Committee cannot help but note that management started holding inquiries for alleged acts of misconduct against a number of employees during the period when strike action was being undertaken by FABREU. According to the Government's own statement, management agreed to drop the inquiries against most employees only after the strike was suspended.

372. The Committee notes that the Government is also of the view that the strike was not legitimate since the hotel industry was declared a public utility service during the relevant period and the dispute had been referred to the Industrial Tribunal. Therefore, workers should not have gone on strike when adjudication proceedings were pending. The Committee would, however, draw the Government's attention to the principle that arbitration implying a binding decision to end a collective labour dispute and a strike is only acceptable if it is at the request of both parties involved in a dispute. Otherwise, recourse to compulsory arbitration at the request of one party to the dispute should be limited to disputes in the public service involving public servants exercising authority in the name of the State or in essential services in the strict sense of the term, namely those whose interruption would endanger the life, personal safety or health of the whole or part of the population [see Digest, op. cit., para. 515]. Since the hotel industry does not fall into any of the above categories, the Committee considers that the strike called by FABREU was a legitimate one. In this respect, the Committee would recall the principle that no one should be penalized for carrying out or attempting to carry out a legitimate strike [see Digest, op. cit., para. 590]. Moreover, the Committee has held that protection against acts of anti-union discrimination should cover not only dismissal, but also any discriminatory measures during employment, in particular transfers, downgrading and other acts that are prejudicial to the worker [see Digest, op. cit, para. 695]. The Committee notes that in the case at hand, 15 FABREU members who went on strike (out of whom seven were suspended and eight were issued transfer orders) are facing inquiries by the management. The Committee requests the Government to ensure that management drops the ongoing inquiries being held against these 15 FABREU members. It further requests the Government to keep it informed of any developments in this regard. Finally, the Committee requests the Government to repeal the decision declaring the hotel industry a public utility service since it is not an essential service in the strict sense of the term in which strikes can be prohibited.

373. Regarding the allegation that management signed an agreement on 20 October 1995 with a newly formed organization called the Fort Aguada Beach Resort Workers' Association and that it would therefore no longer recognize FABREU, the Committee notes that the Government confirms that the management had in effect signed an agreement with such an organization in accordance with the provisions of the Industrial Disputes Act. The Government also indicates that all members of the new association are also members of FABREU. Be that as it may, the Committee finds that this point is irrelevant to the issue of whether FABREU has been derecognized or not. In effect, the Committee notes that under the terms of settlement signed on 20 October 1995 between management and the Fort Aguada Beach Resort Workers' Association, a copy of which is enclosed by the Government, it is indicated inter alia that "... Management shall recognize the association as sole bargaining agent for and on behalf of the workmen employed by the company." The Committee has held on previous occasions that recognition by an employer of the main unions represented in his undertaking, or the most representative of these unions, is the very basis for any procedure for collective bargaining on condition of employment in the undertaking and that where, under the system in force, the most representative union enjoys preferential or exclusive bargaining rights, decisions concerning the most representative organization should be made by virtue of objective and pre-established criteria so as to avoid any opportunities for partiality or abuse [see Digest op. cit., paras. 822 and 827].

374. In the case at hand, although the Fort Aguada Beach Resort Workers' Association certainly enjoys exclusive bargaining rights, it is not certain that it is the most representative union or that management recognized it as sole bargaining agent by virtue of objective and pre-established criteria. In effect, the Committee notes that in a letter dated 22 May 1995 and addressed to the management of the Fort Aguada Beach Resort, a number of employees of the said resort request management to hold negotiations with six other workers whom they have designated as their representatives. In this letter (a copy of which is enclosed by the Government), these employees state in particular that they wish to reach an amicable settlement directly with the management, since the charter of demands dated 27 June 1994 raised by FABREU on behalf of the employees is still pending in the Industrial Tribunal for adjudication. The employees concerned indicate in the letter that they cannot wait indefinitely for the outcome of the charter of demands. While these workers belong to the Fort Aguada Beach Resort Workers' Association, the Committee notes that only 66 employees (including the designated six representatives) have signed this letter. The complainant had earlier indicated that FABREU has a membership of 189 employees. Although the complainant has not provided any evidence to substantiate this statement, the Committee notes that in a letter dated 20 February 1997 and addressed to the Federal Ministry of Labour, Mr. R.S. Mardolker, the Labour Commissioner from the Goan administration himself indicates that FABREU has a membership of about 160 (a copy of this letter is enclosed by the Government).

375. For the above-mentioned reasons, the Committee is bound to conclude that no doubts exist that FABREU is the most representative at the Fort Aguada Beach Resort. The Committee therefore concludes that in recognizing the Fort Aguada Beach Resort Workers' Association as the sole bargaining agent -- the same day the association applied for registration -- management had acted in violation of the right to collective bargaining. In these circumstances the Committee urges the authorities to take appropriate conciliatory measures to obtain the employer's recognition of FABREU for collective bargaining purposes.

The Committee's recommendations

376. In the light of its foregoing conclusions the Committee invites the Governing Body to approve the following recommendations:

(a) Noting that an application seeking approval of termination of the employment of Mr. L. Malwankar, President of the Fort Aguada Beach Resort Employees' Union (FABREU), has been filed by the employer before the Industrial Tribunal, the Committee requests the Government to keep it informed of the outcome of the court proceedings in this case. It urges the Government to take the necessary steps to have Mr. Malwankar reinstated in his post, if he so desires.

(b)The Committee requests the Government to take the appropriate steps to ensure that the ongoing inquiries held by the management of the Fort Aguada Beach Resort against the 15 FABREU members who went on strike, are dropped. It requests the Government to keep it informed of any developments in this regard.

(c)The Committee requests the Government to repeal the decision declaring the hotel industry a public utility service since it is not an essential service in the strict sense of the term in which strikes can be prohibited.

(d)Finally, the Committee urges the Government to take the appropriate conciliatory measures to obtain the management's recognition of FABREU for collective bargaining purposes. The Committee asks the Government to keep it informed of any progress made in this regard.

Appendix

FORT AGUADA BEACH RESORT EMPLOYEES UNION

(Registered under Trade Union Act, 1926)

Registration No.: 140/23-8-1977

Date: 7th Dec. 92

The Area General Manager
Fort Aguada Beach Resort
Sinquerim, Bardez, Goa

Sir:

FETTERS PUT BY THE MANAGEMENT ON OUR PRESIDENT

1. We refer you to the last para of your letter dated 18/6/92 addressed by you to our President, now reproduced below in order to appreciate it better:

"While on the subject, we would like to make it clear that in future if your departmental Head refuses to grant permission to remain away from your regular work for attending to Union work, you will report such refusal to either the Personnel Manager or the Resident Manager or the undersigned and proceed to your Union work under their permission."

2. We also refer you to the last paras of the letter dated 28/11/92 addressed by Mr. R.D. Khosla, Resident Manager, to our President, also reproduced below in order to appreciate better the contradictions it contains:

"In order to avoid these kind of oral exchanges and to set up procedures so as to enable the Management to decide as to whether you can be relieved or not we would like you to follow the following procedures:

1. You should put up your request in writing to the Departmental Head for relieving you to attend union work.

2. The request to be made at least 24 hours before the time at which you wish to be relieved.

3. The Departmental Head to endorse her remarks in writing on the request made by you.

4. In case you are not relieved by the Departmental Head due to exigencies of work, you may bring such refusal to the notice of the undersigned and you will not remain away from work."

3. After going through both the above paras, the entire Union Committee is of the unanimous opinion that in one way or the other your final aim is to put fetters on our President or on his movements if he does union work, which is extremely in bad taste. You have indeed disturbed with or without knowledge the sanctity of the office of Union President by hurling on it unnecessary and unwarranted abuses!

4. The above two paras also amply show that your prejudicial attitude towards our President has not undergone any healthy change but instead it has hardened now more than ever before, with the passage of time, in that you are now suggesting and adopting new modes and methods of harassing him with negative astuteness. That goes, please note, against the very interest and sacred foundation of our UNION. You still do not appear to know the high esteem with which your employees hold him, not because he is Mr. Laximan Malwankar but because he is their elected President and whatever the facilities and privileges and respect and regards that go to the office of Union President must also now go to Mr. Malwankar only because he is a duly elected honorable President of our Union! You cannot humiliate him in the manner you are now doing.

5. Unfortunately, what all Union Committee Members as well as the employees gather from your above two letters, as indeed any discerning reader should, is that you are deliberately and definitely after Mr. Malwankar, not as an employee but as Union President, and rest assured we all don't appreciate it at all, as this is something that is summarily objectionable. If that is what you are upto or going to do then you are mistaken and that should without doubt lead to confrontation so far avoided by the Union with exceptional patience.

6. If you take unionism for granted ignoring the statutes that fully protect it as well as the social welfare philosophy behind it as well as the give-and-take spirit in industrial relations based on the monolithic foundation of the collective bargaining process laid down, evolved and developed by the august men of justice over the past 40 arduous years, and try to impose your own ignorance about unionism on us, then the Union is not going to tolerate it any more. It is indeed astonishing, nay stunning, that you are trying to convert the molehill into a mountain by attempting to dislodge in broad daylight the very foundation of our union by concentrating on our President. If you go on continuing this under one pretext or another then it would mean that you are yourself making the beginning of the end of the present good industrial relations!!

7. What the Area General Manager means is that if our President is not allowed by the Departmental Head to go for union work, he has to run from the pillar to the post to search for the Personnel Manager or the Resident Manager or the Area General Manager and if neither of them is available on time or neither of them gives him the required permission he has not to attend union work thus causing damage to our union. This logic, we are sure, is too rigid for the legitimate and legal existence of our union and cannot therefore be accepted, being prejudicial to our interest.

8. If you go by the unduly rigid and unfair restrictions put on our President by the Resident Manager for attending to union work it would squarely mean that you are prematurely as well as blissfully putting the deathnail to the coffin of industrial relations, and not on our union as you suppose. What is everlasting is our union and what is not everlasting are industrial relations.

9. It is necessary to recall that the Area General Manager sometime back mooted the idea that he alone will deal with the matter of permission to be given to our President for attending to union work. But, again, it appears that the idea has receded into the background and other various ideas appear to have come on the scene! This is fantastic!! But still the fact remains that whenever our President accordingly went to see the Area General Manager for permission he could not be traced. The other fact is that many times the Committee Members had to approach you for taking necessary permission for releasing our President. This is something that often deeply agitates our minds.

10. The most striking question is: Should we infer from your above two letters that our elected popular President should remain confined to his job alone? Do you wish to go strictly legally as far as this is concerned? The union is determined to seek a judicious answer to this from you within the framework of industrial law.

11. The most significant question is: Is it fair on your part to harass our President at every opportunity and in every possible manner? Don't you feel that if you indulge in such negative tactics then industrial relations shall be the victim of your own doings? This question should not remain unanswered.

12. Finally, we would reiterate the hardships faced by us all on account of your not releasing our President is directly affecting our union work which the Committee Members as well as the employees cannot tolerate as stated in our previous correspondence with you.

13. The fact is all of us are extremely confused, nay tired, by your hardened attitude towards our union President. This matter could therefore be discussed in a committee meeting with you, if you could spare your good time for this good purpose.

14. In the meantime, there is a lot of pending union work, the Committee Members hereby request you to continue presently the present practice of releasing our President.

15. In the meantime, please expedite the matter in the interest of industrial relations, which can neither be amicable nor harmonious in the absence of cooperation from the union.

Yours faithfully,

for FORT AGUADA BEACH RESORT EMPLOYEES UNION

GEN. SECRETARY MEMBER

PRESIDENT MEMBER

VICE-PRESIDENT MEMBER

JT SECRETARY MEMBER

TREASURER MEMBER

Case No. 1877

REPORT IN WHICH THE COMMITTEE
REQUESTS TO BE KEPT INFORMED OF DEVELOPMENTS 

Complaint against the Government of Morocco
presented by
the Moroccan Labour Union (UMT)

Allegations: Dismissals of strikers and anti-union discrimination

377. On 22 March 1996 the Moroccan Labour Union (UMT) lodged a complaint alleging violation of trade union rights against the Government of Morocco. The complainant sent additional information in a communication dated 22 April 1996.

378. The Government sent its observations in a communication dated 5 March 1997.

379. The International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers' Associations (IUF) and the International Confederation of Free Trade Unions (ICFTU) associated itself with the complaint in communications dated 26 and 29 March 1996. Lastly, the Trade Union of Arab Maghreb Workers (USTMA) supported the complaint in a communication dated 27 March 1996.

380. Morocco has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87); it has, however, ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

381. The complaint submitted by the UMT relates to the deterioration in the social climate in two factories belonging to the SOMADIR enterprise in Casablanca and Al Jadida, with 300 and 200 employees respectively. The complainant alleges that the employer committed violations of freedom of association during the period 1994-96.

The Casablanca factory

382. The complainant outlines the events which led to the closure of the enterprise in February 1996. In March 1994 the workers at the factory called a strike as the management had not taken any action in relation to the declaration of claims they submitted the previous November. Following negotiations, in April 1994 the parties did however come to an understanding which to a large extent satisfied the workers' claims, the management of the enterprise on that occasion undertaking to conclude an enterprise-level collective agreement. The complainant reports that there was no follow-up to this understanding.

383. The factory workers held a series of general meetings and presented a series of claims to the management. A copy of these claims was also sent to the Casablanca Labour Inspectorate. The claims related in particular to the granting of tenure to temporary workers; a general salary increase; daily, monthly and annual allowances; social welfare; and the negotiation of a draft enterprise-level collective agreement. In January 1996 the management of the factory informed the workers that no salary increase would be granted. Furthermore, it announced that it had already drafted the rules of procedure which would be circulated and applied within the enterprise.

384. On 30 January 1996, the parties, including the factory director Mr. Mohammed Smires, met at the Labour Inspectorate. On that occasion, the factory director refused to discuss salary increases or the conclusion of an enterprise-level collective agreement. On 8 February another meeting was held, attended by the prefectural delegate of employment of Casablanca, during which Mr. Smires announced the management's intention to dismiss 70 workers, adding that the discussion would be limited to the selection of the workers to be dismissed. The management justified its decision by stating that the enterprise would be stopping the production of dry yeast, alcohol and glycerine. As the complainant points out, however, the enterprise had already ceased those activities ten years earlier.

385. On 15 February a general meeting of the entire staff was held at the complainant's headquarters in Casablanca, during which it was decided that the action initiated would be continued and all legal forms of protest would be examined in order to put an end to the employer's policy.

386. The complainant adds that there was, nevertheless, a subsequent increase in anti-union measures. By way of example, on 19 February Mr. Smires threatened Mr. Mohammed Horane, an operator and trade unionist, and took his time and attendance card away from him. Mr. Horane's colleagues stopped work for five minutes as a sign of protest. Mr. Smires retaliated by ordering all the office workers -- about 30 people -- to stop work, announcing to them that the factory was closed and also taking their time cards away from them. The labour inspector and the assistant prefectural delegate of employment were notified and came immediately to the premises. Following a meeting with the factory director, the two representatives of the Ministry of Employment publicly announced the suspension of all the members of the trade union section of the complainant, namely Messrs. Mohammed Karim, Bouchaib Adrif, Abdelkébir Kaboul, Mohammed Fahmi, Allal Laouinate, Meziane Azzay, Abdelilah Marhoum, Brahim Achrait, Rachid Anaddam, Mustapha Bouachamia and Mohammed Boukhima. These trade unionists went to the complainant's headquarters in Casablanca and from there issued a call for strike action. On the same day, the director of the enterprise ordered the closure of the factory and a general prohibition of entry.

The Al Jadida factory

387. The complainant explains that the social climate also deteriorated at the Al Jadida factory. No discussions were held following the submission of the declaration of claims in November 1995. The factory's workers met on 11 January 1996 and decided that all legal measures should be taken to initiate negotiations. In spite of the procedures undertaken with the public authorities to convene a consultation meeting on the declaration of claims, there was no follow-up to the steps taken by the workers. On the contrary, the management decided to suspend Mr. Bouchaib Moundir, a driver, and Mr. Hassan Raoui, and to dismiss Mr. Abderrahim Oussamam and Mr. Rachid Labed.

388. On 5 February 1996, the head of the administrative and finance service, Mr. Mohammed Taher, informed the workers that the declaration of claims was rejected in its entirety and that it had been decided to dismiss 30 employees who were considered redundant. Lastly, he added that the owner was considering closing the factory and importing yeast from European countries.

389. On 22 February, a strike notice was presented as a protest against the employer's attitude and as a sign of solidarity with the workers of the Casablanca factory. The complainant explains that before beginning the strike on 26 February, the workers took all the necessary measures to leave the factory's machines in good order.

390. In spite of these measures, the factory's management sent suspension and dismissal notices, dated 26 February and 12 March 1996 respectively, to eight staff representatives, five of which were also union representatives belonging to the complainant organization, namely Messrs. El Mustapha Achoute, Abderrassoul Ghazza, Najib Boudriga, Abdellah El Hassi, Mohammed Mifdal, Jamal Bella, Ahmed Nouamane and Saad Taha. Mr. Abderrassoul Ghazza was on annual leave at the time and Mr. Jamal Bella and Mr. Abdellah El Hassi were not at the factory during the work stoppage.

391. The complainant concludes that following the closure of the two factories in Casablanca and Al Jadida, yeast disappeared from the official distribution circuits in Morocco. It adds that the highest public authorities were informed of the situation and that a national and international solidarity campaign with the SOMADIR workers was launched in order to achieve the immediate and unconditional reinstatement of the trade unionists and of all those who had been illegally dismissed. The complainant alleges that the situation remained unchanged during the month of March 1996 and that the SOMADIR management refuses to resume yeast production activities until all the union and staff representatives of the factories concerned (12 workers in Casablanca and eight workers in Al Jadida), in addition to 45 other workers, are definitively dismissed.

B. The Government's reply

392. In its reply, the Government explains that the dispute in question arose because the management of the SOMADIR enterprise considered that due to the company's financial situation the employees' claims could not be satisfied, while the employees themselves insisted that their demands should be taken into consideration as according to their calculations the enterprise's financial situation had in fact improved.

393. The Government explains that at the very beginning of the dispute between the parties, the labour inspectorate took the initiative to organize two conciliation meetings in order to seek a solution. Unfortunately, these meetings were unsuccessful, with the management even stating its intention to let part of the staff go (70 of a total of 390 workers).

394. The Government is of the view that their divergent positions is the main reason for the tension that has built up between the parties, and that this is what led to the dismissal of a workers' representative following an argument with the director of the Casablanca factory. As a sign of solidarity, the factory workers went on strike. The Government notes that the management could have then dismissed all the workers' representatives on the pretext of incitement to stop work, without advance notice nor consideration for the losses that this dismissal would have entailed. The Government stresses that the labour inspectorate then intensified its contacts with the parties to resolve this dispute. It adds, moreover, that the labour inspectorate never expressed support for the dismissal of the workers' representatives.

395. Lastly, the Government concludes that with a view to encouraging the parties concerned to cooperate and to find a solution to the dispute, the matter was put before the Consultative Council for the Promotion of Social Dialogue, made up of representatives from the Ministry concerned, occupational organizations and trade union organizations.

C. The Committee's conclusions

396. The Committee observes that this case concerns anti-union measures taken by the management of factories belonging to the SOMADIR enterprise in Casablanca and Al Jadida against the workers, and in particular against the trade union leaders and the staff representatives, during the period 1994-96, and the inability of the public authorities to settle the dispute.

397. The Committee notes that it is the submission of a declaration of claims by the workers at the Casablanca and Al Jadida factories, which initially aggravated the dispute between them and the management. According to the information provided by the Government, the employer is of the view that the financial situation of the enterprise does not permit it to satisfy the workers' claims, while the workers on the contrary believe that the situation is in fact improving, therefore permitting an improvement to be made in their working conditions.

398. The Committee deplores the measures taken by the management of the two factories against the workers, and in particular those directed at the staff and union representatives which led to the closure of the two factories. More specifically, the Committee notes that at the Casablanca factory the parties allegedly concluded an understanding in April 1994 which the management did not follow up. On the contrary, the Committee notes that the management took measures against the union representatives at the Casablanca factory by taking the time and attendance card away from Mr. Mohammed Horane, a trade unionist, in February 1996 and by suspending all the members of the trade union section of the complainant organization, namely Messrs. Mohammed Karim, Bouchaib Adrif, Abdelkébir Kaboul, Mohammed Fahmi, Allal Laouinate, Meziane Azzay, Abdelilah Marhoum, Brahim Achrait, Rachid Anaddam, Mustapha Bouachamia and Mohammed Boukhima.

399. As regards the Al Jadida factory, the Committee observes that relations between the management and the workers deteriorated in a similar fashion, leading, in January 1996, to the suspension of Mr. Bouchaib Moundir and Mr. Hassan Raoui as well as the dismissal of Mr. Abderrahim Oussamam and Mr. Rachid Labed; in February 1996, to the dismissal of 30 employees who the management considered to be redundant; and lastly, on 26 February and 12 March 1996, to the sending of notices of suspension and dismissal to eight staff representatives, five of which were also union representatives, namely Messrs. El Mustapha Achoute, Abderrassoul Ghazza, Najib Boudriga, Abdellah El Hassi, Mohammed Mifdal, Jamal Bella, Ahmed Nouamane and Saad Taha.

400. The Committee recalls that according to the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), ratified by Morocco, workers must not be subjected to acts of anti-union discrimination in respect of their employment. The Committee notes that, in numerous cases concerning Morocco, and notably in the two most recent cases, it has already expressed its profound concern at the seriousness of the allegations of anti-union discrimination before it [see Cases Nos. 1687 and 1691, 305th Report, paras. 397-412]. Furthermore, it notes with regret that in spite of the fact that the Committee of Experts on the Application of Conventions and Recommendations has for a number of years been requesting the strengthening of legislative provisions (in particular Dahir No. 1-58-145 of 29 November 1960) in order to guarantee workers, in law and in fact, adequate protection against acts of anti-union discrimination, no tangible progress has so far been seen.

401. Given the lack of information to demonstrate the legitimacy of the measures of suspension and dismissal taken by the management of the SOMADIR enterprise, and the allegations of the complainant organization, confirmed by the Government, that these measures were specifically directed against trade unionists, the Committee requests the Government to take all necessary measures so that all the workers who were dismissed or suspended due to their legitimate trade union activities, namely Messrs. Mohammed Horane, Mohammed Karim, Bouchaib Adrif, Abdelkébir Kaboul, Mohammed Fahmi, Allal Laouinate, Meziane Azzay, Abdelilah Marhoum, Brahim Achrait, Rachid Anaddam, Mustapha Bouachamia, Mohammed Boukhima, Bouchaib Moundir, Hassan Raoui, Abderrahim Oussamam, Rachid Labed, El Mustapha Achoute, Abderrassoul Ghazza, Najib Boudriga, Abdellah El Hassi, Mohammed Mifdal, Jamal Bella, Ahmed Nouamane and Saad Taha be immediately reinstated in their jobs, if they so wish. The Committee also recalls that "legislation must make express provision for appeals and establish sufficiently dissuasive sanctions against acts of anti-union discrimination to ensure the practical application of Articles 1 and 2 of Convention No. 98" [Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 743]. In this regard, the Committee requests the Government to take all necessary measures so that the SOMADIR enterprise does not have recourse to anti-union measures and asks the Government to keep it informed in this connection.

402. Furthermore, the Committee notes the involvement of the public authorities in the dispute and their inability to prevail upon the parties to settle it. The Government recognizes that the management of the factories allegedly dismissed all the workers' representatives on the pretext of incitement to stop work, but stresses the fact that the labour inspectorate never supported this measure. The question was submitted to the Consultative Council for the Promotion of Social Dialogue, and the decision is still pending. The Committee notes this information and asks the Government to send a copy of the decision as soon as it is handed down.

403. Lastly, the Committee recalls that to make sure that protection against anti-union discrimination is in fact ensured, the methods adopted may vary from one State to another, but if discrimination does exist "the government concerned should take all necessary steps to eliminate it, irrespective of the methods normally used" [see Digest, op. cit., para. 737]. The Government is responsible for guarding against all acts of anti-union discrimination against workers. It must make sure that in legislation and in practice prompt and easily accessible procedures exist that are not only impartial but are considered as such by the parties concerned, and to which workers who consider that they have suffered prejudice due to their trade union activities can have recourse. The Committee therefore requests the Government to take all appropriate measures in this connection. The Committee reminds the Government that the ILO technical assistance is at its disposal regarding this matter. It draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to this aspect of the case.

The Committee's recommendations

404. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:

(a) Recalling that the Government is responsible for guarding workers against all acts of anti-union discrimination and that in this connection it must make sure that in legislation and in practice prompt and easily accessible procedures exist that are not only impartial but are considered as such by the parties concerned and to which workers can have recourse, the Committee requests the Government to take all the appropriate measures in this connection. The Committee reminds the Govenment that the technical assistance of the ILO is at its disposal regarding this matter and draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to this aspect of the case.

(b )Recalling that under Convention No. 98 workers shall enjoy adequate protection against acts of anti-union discrimination, the Committee requests the Government to take all necessary measures to ensure that the workers who were dismissed or suspended due to their legitimate trade union activities, namely Messrs. Mohammed Horane, Mohammed Karim, Bouchaib Adrif, Abdelkébir Kaboul, Mohammed Fahmi, Allal Laouinate, Meziane Azzay, Abdelilah Marhoum, Brahim Achrait, Rachid Anaddam, Mustapha Bouachamia, Mohammed Boukhima, Bouchaib Moundir, Hassan Raoui, Abderrahim Oussamam, Rachid Labed, El Mustapha Achoute, Abderrassoul Ghazza, Najib Boudriga, Abdellah El Hassi, Mohammed Mifdal, Jamal Bella, Ahmed Nouamane and Saad Taha be immediately reinstated in their jobs, if they so wish. The Committee requests the Government to take all necessary measures so that the SOMADIR enterprise does not have recourse to anti-union measures and requests the Government to keep it informed in this connection.

(c) Noting that the dispute between the workers and the management of the SOMADIR enterprise was submitted to the Consultative Council for the Promotion of Social Dialogue, the Committee requests the Government to forward to it a copy of the decision as soon as it is handed down.

Case No. 1907

REPORT IN WHICH THE COMMITTEE REQUESTS TO BE
KEPT INFORMED OF DEVELOPMENTS 

Complaint against the Government of Mexico
the National Revolutionary Trade Union of Transport and Allied
Workers of the Mexican Republic (section X) (CTM)

Allegations: Violation of the right to strike

405. The complaint concerning this case is contained in a communication from the National Revolutionary Trade Union of Transport and Allied Workers of the Mexican Republic (section X) (CTM) dated 7 November 1996. The Government sent its observations in a communication dated 3 March 1997.

406. Mexico has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), but has not ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

407. In its communication of 7 November 1996 the National Revolutionary Trade Union of Transport and Allied Workers of the Mexican Republic (section X) (CTM) states that on 18 April 1995 it informed the road transport enterprises Autotransportes Tres Estrellas de Oro SA de CV and Corsarios del Bajío SA de CV of its intention to hold a strike for a review of the wage conditions in the collective labour contract, in accordance with the provisions of the Federal Labour Act; following the enterprises' refusal to consider its wage demands, it declared a strike on 21 June 1995. The complainant organization adds that the strike was declared lawful by the Federal Conciliation and Arbitration Board (JFCA) on 10 August 1995, that the enterprises lodged separate judicial appeals which were declared inadmissible and that, since the appeals were denied, the management of the enterprises accepted the list of demands and requested the JFCA to order the strikers to resume work within 24 hours.

408. The complainant organization states that the JFCA ordered the strike over in a resolution dated 13 February 1996 and stipulated that the workers should go back to work within 24 hours from the date on which the trade union was to be informed. The complainant organization adds that the Secretary General of the trade union was informed of this decision on 15 February 1996 but that he, in collusion with the management of the enterprise, failed to pass the information on to the striking workers. In these circumstances, on 18 February the strikers were barred entry to the enterprises. The complainant organization states that it approached the JFCA again to request it to fix a new date on which workers should resume work and that despite the Board establishing a new date, the enterprises lodged an appeal against this measure with the judicial authorities who accepted their arguments; consequently, the JFCA issued a new resolution upholding the initial time-limit of 24 hours provided for under its resolution of 13 February 1996.

B. The Government's reply

409. In its communication of 3 March 1997, the Government states that the Federal Conciliation and Arbitration Board (JFCA), the competent authority for dealing with collective labour disputes, declared the strike called by the workers on 21 June 1995 legal and admissible as it complied with the substance and spirit of the requirements laid down in the Federal Labour Act. The various steps leading to this decision by the JFCA should be spelt out: on 10 August 1995 it refused a request made by the enterprises on 23 June of the same year to declare the strike inadmissible; on 30 August 1995 it turned down a request for annulment lodged by the enterprises on 18 August 1995 on the grounds that it was inadmissible; and on 31 January 1996 it refused the enterprises' request -- dated 10 October 1995 -- to declare the grounds for the strike unlawful. The Government adds that on 2 February 1996 the enterprises accepted without any changes whatsoever and to the letter the list of demands on which the workers had based the strike; they also drew up a list of the workers, establishing the wage level of all of them, and attached two sets of cheques sent to each and every one of the workers: the first was for the wages due between 21 June 1995 and 2 February 1996, and the second for the end-of-year bonus for 1995. The Government points out that as a result of this arrangement, the grounds for the collective dispute ceased to exist; this prompted the JFCA to issue a resolution on 13 February 1996 ordering the workers to return to work within 24 hours of the trade union which had declared the strike being informed of this decision. This notification was personally received on 15 February 1996 by the Secretary General of the trade union who was duly authorized to deal with procedural matters of this nature -- and thus to receive all categories of notifications.

410. The Government states that a number of workers from the enterprises, arguing that they had not been informed by the Secretary General of the trade union of the deadline for returning to work, requested the JFCA to set a new date and time. Wishing to make allowance for any misinformation or lack of communication by the Secretary General there might have been and to prevent the workers from being denied justice, the JFCA agreed to this request on 21 February 1996 and fixed a new deadline for 9 p.m. on 23 February 1996. The Government points out that the enterprises brought an action for amparo (enforcement of constitutional rights) against this decision by the JFCA, which was upheld on 14 and 19 March 1996 by the first and second district labour courts respectively. In April 1996, both the authorities of the JFCA and the officials of section X of the trade union mentioned above lodged appeals for review, contesting these decisions to grant amparo to the enterprises. The seventh labour court which dealt with these appeals for review, in keeping with its terms of reference and independence, upheld the resolutions granted amparo to the enterprises and thus: (a) annulled the resolution of the JFCA of 21 February 1996 which granted a new deadline for the return to work; and (b) upheld the resolution of the JFCA of 13 February establishing a deadline of 24 hours for workers to resume work.

411. The Government points out that the applicants were unable to prove either the legal personality they claimed or their judicial interest in the corresponding proceedings, since from the very beginning of the dispute only the Secretary General of the trade union and the legal proxies appointed by him were authorized to assume this role -- and these did not include any members of section X. Consequently, the court could not lawfully consider the claims of anyone who was not part of the proceedings -- particularly since any information was personally notified to the person legally representing the workers. There can be no appeal whatsoever against this ruling of the seventh court; in other words, the matter was adjudged (res judicata), thus legally putting an end to the disputes.

412. The Government points out that the employment relationship was terminated in the case of those workers who did not resume work within the 24 hours granted by the JFCA for this purpose and in accordance with the resolution of the seventh court; these workers had gone to the JFCA to receive the cheques covering their wages that had been unpaid because of the strike and the end-of-year bonus for 1995. Finally, the Government states that the JFCA took its decisions and issued its resolutions in favour of the workers in strict compliance with the applicable legal framework; furthermore, the proceedings of the judicial bodies of the Supreme High Court (district courts and collegial court) also complied strictly with the applicable legal framework, dealing in full exercise of their terms of reference and independence with the appeals for amparo and review lodged by the parties (including the JFCA).

C. The Committee's conclusions

413. The Committee notes that in this case the complainant organization alleges that workers who had taken part in a strike in the transport sector were forbidden entry to the road transport enterprises Autotransportes Tres Estrellas de Oro SA de CV and Corsarios del Bajío SA de CV. The complainant organization attributes these dismissals to the fact that the Secretary General of the trade union, in collusion with the management of the enterprises, did not communicate to the strikers the deadline ordering them to return to work within 24 hours which had been decided upon by the Federal Conciliation and Arbitration Board (JFCA) because the enterprises had accepted the trade union's demands.

414. The Committee notes that it appears from the Government's reply that: (i) the strike declared by the National Trade Union of Transport and Allied Workers of the Mexican Republic (CTM) was declared lawful by the JFCA, despite the appeals lodged by the enterprises; (ii) the enterprises subsequently accepted the list of demands submitted by the striking workers; (iii) once the list of demands had been accepted, the JFCA ordered the workers to return to work within 24 hours on 13 February 1996; (iv) the Secretary General of the trade union was notified of this decision on 15 February 1996; (v) a number of workers belonging to the trade union stated that they had not been notified by the Secretary General and turned again to the JFCA to try and obtain a new deadline to resume work; this the enterprises refused and they accordingly lodged judicial appeals which were upheld, thus confirming the previous deadline of 24 hours within which the workers had to return to work; (vi) the labour relationship of the workers who did not return to work within the 24-hour deadline established by the JFCA was terminated and the workers concerned were paid for the days they were on strike and the end-of-year bonus for 1995.

415. In this respect, the Committee notes that although the striking workers did not respect the 24-hour deadline established by the JFCA this was due, according to the complainant, to the fact that they were not aware of such a decision (according to the complainant organization the Secretary General of the trade union had failed to notify the strikers because he was in collusion with the management of the enterprises). Similarly, the Committee notes that a few days after the Secretary General of the trade union had been notified of the resolution issued by the JFCA, the strikers showed a definite interest in returning to work and actually approached the above-mentioned Board to this effect.

416. In the Committee's opinion, the lack of communication between the Secretary General of the trade union and the strikers on the actual time when the latter should return to work should not give rise to such a serious decision as to terminate the labour relationship of the strikers, particularly since: (1) the complainant organization maintained that the lack of communication was due to collusion between the Secretary General and the management of the enterprise; (2) this statement by the complainant organization has not been denied by the Government; and (3) the strikers had no interest in continuing the strike given that the enterprise had already accepted the strikers' demands; it would have been pointless and counter-productive to continue the strike. In these circumstances, taking into account that in this case the authorities had expressly declared the strike to be legal, the Committee urges the Government to take all necessary steps to ensure that the workers of Autotransportes Tres Estrellas de Oro SA de CV and Corsarios del Bajío SA de CV who participated in the strike and who did not return to work in a 24-hour deadline are reinstated in their jobs. If the Government is unable to abide by this recommendation, the Committee requests it to keep it informed of the legal difficulties which prevents it from reinstating the workers in their jobs.

The Committee's recommendation

417. In the light of the foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:

REPORT IN WHICH THE COMMITTEE REQUESTS TO BE
KEPT INFORMED OF DEVELOPMENTS 

Complaint against the Government of Paraguay
presented by
the International Confederation of Free Trade Unions (ICFTU)

Allegations: Detentions, assaults and threats against trade unionists due to strike s

418. The complaint was submitted by a communication from the International Confederation of Free Trade Unions (ICFTU) dated 22 December 1995. The ICFTU sent new allegations in communications dated 1 April and 31 May 1996. The Government sent partial observations in a communication dated 24 April 1996.

419. In the absence of information from the Government on most of the questions pending, the Committee had to postpone its examination of this case on two occasions. Furthermore, at its meeting in March 1997, the Committee drew the Government's attention to the fact that in accordance with the procedure established in paragraph 17 of its 127th Report, adopted by the Governing Body at its 184th Session (November 1971), it would present a report on the substance of this case at its next meeting, even if it had not received the information and observations requested in due time [see 306th Report, adopted by the Governing Body at its 268th Session (March 1997), para. 9]. To date, full information has still not been received from the Government.

420. Paraguay has ratified 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).

A. The complainant's allegations

421. In its communication of 22 December 1995, the International Confederation of Free Trade Unions (ICFTU) alleges that on 15 August 1995, workers of the Trade Union of United Manual Workers of the Paraguayan Meat Exporting Enterprise (EXPCAR), with headquarters in the locality of Piquete Cué, launched a general strike concerning payment of the family bonus, overtime, night work, compulsory social insurance and the minimum legal wage. The strike was suspended by the workers on 24 August 1995 after an agreement was reached with the employer. However, on 25 September 1995 the strike was resumed for an indefinite period following the failure to implement the agreements reached. The ICFTU points out that the strikers took up positions at the plant and that on 10 October 1995 the strike was violently suppressed, resulting in the injury of several workers. Orders were issued for the arrest of 15 trade unionists, including the Secretary-General. On 24 October 1995 they were violently detained and sent to the National Penitentiary, and released on 16 November 1995. Furthermore, six female members of the trade union, who were on a hunger strike, were hospitalized on 24 November 1995 and had to receive intensive care due to the grave state of their health.

422. The ICFTU furthermore alleges in its communication of 1 April 1996 that one day before the strike convened by the national trade unions central organizations for 28 March 1996, Mr. Gerónimo López Gómez, Secretary-General of the Paraguayan Confederation of Workers (CPT) was physically and verbally assaulted and threatened with a knife by a person named Arnaldo Rafael Acosta Getto and four other persons, who, acting on behalf of the Ministry of Justice and Labour, insulted and threatened him in the CPT headquarters. They warned that the strike of 28 March would be the last action carried out by the trade union since the Minister of Justice and Labour would take steps to dismantle the CPT.

423. Finally, in its communication of 31 May 1996, the ICFTU alleges that following a national strike convened for 2 and 3 May 1996 by the Single Central Organization of Workers (CUT) -- affiliated to the ICFTU -- and the three other national trade union central organizations to protest against the economic policy of the Government of Paraguay, state security forces brutally suppressed a peaceful march by trade union leaders, peasants and students. The security forces detained around 100 persons, including Messrs. Alan Flores, President of the Single Central Organization of Workers (CUT) and Eduardo Ojeda, leader of the National Central Organization of Workers (CNT), who were savagely beaten by more than 15 police officers at the time of their arrest. They were subsequently released, after more than 12 hours of detention.

B. The Government's reply

424. In its communication of 24 April 1996, the Government sent the documentation of the police and judicial authorities on the violent dispute which occurred between Messrs. Gerónimo López Gómez (Secretary-General of the Paraguayan Confederation of Workers (CPT)) and Arnaldo Rafael Acosta Getto (CPT secretary responsible for organization). According to this documentation, Mr. López Gómez prevented Mr. Acosta from entering the CPT premises when a meeting was being held to discuss aspects relating to the strike of 28 March 1996, resulting in an exchange of blows during which both persons concerned were injured. Both were arrested and subsequently released by the judicial authority.

C. The Committee's conclusions

425. First of all, the Committee regrets that the Government has not furnished observations on most of the questions pending, despite the time which has elapsed since the complaint was presented and the fact that it was invited to make its comments and observations on various occasions, including by means of an urgent appeal.

426. Under these circumstances, and in accordance with the applicable rule of procedure [see para. 17 of its 127th Report, approved by the Governing Body at its 184th Session (November 1971)], the Committee feels obliged to submit a report on the substance of this case without being able to take into account the information which it hoped to receive from the Government.

427. The Committee reminds the Government that the purpose of the whole procedure is to promote respect for trade union rights in law and in fact, and the Committee is confident that, while these procedures protect governments against unreasonable accusations, governments for their part must recognize the importance of formulating for objective examination detailed factual replies to such detailed factual charges as may be put forward [see First Report, para. 31, approved by the Governing Body in March 1952].

428. The Committee notes with concern that in this case the complainant alleges different acts of violence, detentions and threats against trade unionists due to strikes.

429. As regards the alleged assault of and threats made against Mr. Gerónimo López, Secretary-General of the CPT, the Committee notes that according to the police and judicial documentation sent by the Government, these acts of aggression were due to the CPT secretary responsible for organization, who was prevented from entering the CPT premises during a discussion of certain aspects of the strike scheduled for 28 March 1996, resulting in injuries to both persons concerned. In this respect, the Committee recalls that it is not competent to examine questions concerning internal disputes within trade unions and concludes that this allegation does not call for further examination.

430. As regards the alleged acts of repression in October 1995 against workers participating in the strike at the EXPCAR enterprise (several persons injured and the detention of 15 trade unionists, who were subsequently released three weeks later), the Committee underlines the long period during which the trade unionists were detained and requests the Government to confirm that there are no pending criminal charges against them.

431. As concerns the assault and detention of hundreds of persons -- including Alan Flores, President of the CUT, and Eduardo Ojeda, a CNT leader -- for more than 12 hours, as a result of a protest march held during a strike in protest against the economic policy of the Government at the beginning of May 1996, the Committee deplores this use of violence and of massive detention but notes that the persons detained have now been released.

432. In the absence of a reply from the Government concerning the allegations of attacks and detentions mentioned in the preceding paragraphs, the Committee can only regret these actions by the authorities and request that the Government take steps to ensure that the security forces refrain from measures of violence and detention against workers exercising their legitimate trade union activities, and open inquiries into the alleged acts of violence. In this respect, the Committee draws the Government's attention to the fact that the rights of workers' and employers' organizations can only be exercised in a climate that is free from violence, pressure or threats of any kind against the leaders and members of these organizations, and that it is for governments to ensure that this principle is respected [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, para. 47]. The Committee also emphasizes that the detention of leaders of workers' and employers' organizations for activities in connection with the exercise of their right to organize and to strike is contrary to the principles of freedom of association and that measures depriving trade unionists of their freedom on grounds related to their trade union activity, even where they are merely summoned or questioned for a short period, constitute an obstacle to the exercise of trade union rights [see Digest, op. cit., paras. 69 and 77].

The Committee's recommendations

433. In the light of the foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:

(a) The Committee regrets that despite an urgent appeal, the Government has not sent its observations on the alleged acts of repression in October 1995 against workers participating in the strike at the EXPCAR enterprise (several persons injured and the detention of 15 trade unionists, who were subsequently released after three weeks) and the assault and detention of hundreds of persons -- including Alan Flores, President of the CUT, and Eduardo Ojeda, a CNT leader -- for more than 12 hours, following a protest strike against the economic policy of the Government at the beginning of May 1996.

(b )The Committee requests the Government to confirm that there are no criminal charges pending against the trade unionists of the EXPCAR enterprise.

(c )Noting that the various detained persons mentioned in the allegation have been released, the Committee, in deploring the alleged detentions and attacks, requests the Government to take steps to ensure that the security forces refrain from measures of violence and detention against workers exercising their legitimate trade union activities, and to open an investigation into the acts of violence mentioned in the allegations.

Case No. 1855

DEFINITIVE REPORT

Complaint against the Government of Peru
presented by
-- the Federation of Banking Employees of Peru (FEB)
-- the Unitary Union of Education Workers of Peru (SUTEP) and
-- the Unified National Federation of Health Sector Workers
(FENUTSSA)

Allegations: Restrictions on collective bargaining,
discrimination and interference in union activities,
anti-union dismissals and refusal of union authorization

434. The Committee examined this case at its November 1996 meeting and submitted an interim report to the Governing Body [see 305th Report, paras. 413-433, approved by the Governing Body at its 267th Session (November 1996)].

435. The Government sent further observations in a communication dated 28 February 1997.

436. Peru has ratified 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). However, it has not ratified the Workers' Representatives Convention, 1971 (No. 135).

A. Previous examination of the case

437. At its November 1996 meeting the Committee made the following recommendations on the allegations pending reply [see 305th Report, para. 433]:

B. The Government's reply

438. In respect of the allegations concerning the threats of dismissal and pressure placed on employees of the Banco de Crédito of Peru and Interbanc who are union members (a situation which has led a large number of workers to give up their FEB membership), the Government states that the country's labour legislation includes various provisions to protect unionized employees against arbitrary dismissal. These provisions provide employees with judicial protection whereby dismissals suffered as a result of membership of a trade union or participation in trade union activities are declared null and void, the employee having the choice of reinstatement in his or her post or financial compensation.

439. As to the outcome of the appeal lodged on the grounds of unconstitutionality by FENUTSSA concerning the dismissal of 66 unionized employees of the National Health Institute (INS), including all the union leaders, the Government states that Specialized Civil Court No. 20 in Lima declared the appeal lodged on the grounds of unconstitutionality to be substantiated, rendering invalid the provisions of section 10 of the Regulation concerning the programme of assessment which provides that workers who do not attend the appraisal on the dates scheduled will be made redundant. On this basis a new assessment was made of the work performance of those INS employees who had not attended the corresponding tests. This took place in the presence of representatives of the Office of the Public Prosecutor nominated by the corresponding judicial authority. Following the assessment of their work performance, 60 INS employees were deemed redundant and were dismissed, their results being inadequate.

440. As regards the Committee's request to take measures to redress any prejudice suffered if it is found that the dismissals occurred for trade union reasons, allowing the trade union leaders and members to be reinstated in their posts if they so wish, the Government states that the dismissal of the 60 INS employees is unrelated to trade union matters, being carried out in strict compliance with Act No. 26093 which, as indicated previously, authorizes decentralized public institutions to dismiss on the grounds of redundancy staff who fail the above-mentioned assessment.

441. With reference to the allegations by SUTEP relating to the Ministry of Education's refusal to respond to its petitions, as well as to the refusal of union authorization for its leaders, the Government indicates that these allegations were dealt with in Case No. 1804 (Peru) and repeats its previous comments in this connection.

C. The Committee's conclusions

442. As regards the FEB's allegations concerning the threats of dismissal and pressure placed on employees of the Banco de Crédito of Peru and Interbanc who are union members (a situation which has led a large number of employees to give up their FEB membership), the Committee notes the Government's statement that national legislation protects employees against anti-union dismissal. However, it regrets that the Government has once again failed to give a specific reply to the alleged anti-union acts which led a large number of employees to give up their trade union membership in the institutions under reference. In this connection, the Committee requests the Government to take the necessary measures to ensure that employees also enjoy adequate protection in practice against any act of discrimination which could be detrimental to freedom of association in respect of their employment, particularly against any act calculated to make the employment of a worker subject to the condition that he or she shall not join a union or shall relinquish trade union membership, as provided in Article 1 of Convention No. 98.

443. With respect to the result of the appeal lodged on the grounds of unconstitutionality by FENUTSSA concerning the dismissal of 66 unionized employees of the National Health Institute (INS), including all the union leaders, the Committee notes the Government's statement that the judge found the appeal lodged on the grounds of unconstitutionality to be substantiated, and therefore the INS proceeded to carry out another assessment of the work performance of those employees who had not attended the original tests. The Government indicates that following the new assessment, 60 INS employees were deemed redundant and were dismissed, on account of their poor results, in compliance with Act No. 26093 (which authorizes decentralized public institutions to dismiss on the grounds of redundancy staff who fail the labour assessment). The Committee considers that it does not have sufficient information to determine if the assessments were based on discriminatory criteria. The Committee recalls that it has already examined a similar case [see 304th Report, Case No. 1796, para. 458] regarding programmes of assessment of employee work performance provided for in Act No. 26093 and urges the Government to ensure that these programmes are not used in practice to perpetuate acts of anti-union discrimination. The Committee urges the Government to ensure in practice the application of this criterium.

444. With reference to the allegations by SUTEP relating to the Ministry of Education's refusal to respond to its petitions, as well as to the refusal of union authorization for its leaders, the Committee observes, as the Government pointed out, that these allegations were dealt with in Case No. 1804 (Peru) and repeats the conclusions in that case [see 300th Report, paras. 322-324]:

Concerning the refusal of the authorities to discuss a list of claims submitted by the SUTEP, the Committee recalls that teaching personnel should enjoy the right of collective bargaining. Similarly, the Committee feels bound to point out in view of the fact that true and constructive collective bargaining is necessary to establish and maintain a relationship of confidence between the parties, it is important that both employers -- including the State in its capacity as employer -- and trade unions bargain collectively in good faith, trying their utmost to reach an agreement, which presupposes that there is no unjustified delay in their discussions. Under the circumstances, the Committee requests the Government to take measures to bring the parties together and facilitate discussions between the SUTEP and the Ministry of Education.

As regards the authorities' refusal to grant trade union leave of absence to the SUTEP's Secretary of International Affairs, Nicolás Olmedo Auris Melgar, the Committee notes that the documentation enclosed by the trade union organizations reveals that: (1) in 1990 the Ministry of Education granted Mr. Melgar, who held the position of Secretary of International Affairs, the trade union leave of absence he requested; (2) in March 1994, the SUTEP once again requested that Mr. Melgar be granted trade union leave of absence; and (3) in April and August 1994 the authorities of the Ministry of Education declared that the request for trade union leave of absence was inadmissible on the grounds that "in accordance with section 80 of the regulations contained in the Act pertaining to the teaching profession, teachers representing their trade union shall be entitled to leave of absence with pay throughout the period of their term of office when they have been appointed Secretary-General, Deputy Secretary-General, Organizational Secretary, Secretary of Pedagogical Affairs, Secretary of Defence, Secretary of Economy, Secretary of the Interior, Secretary of Press and Propaganda, in so far as these are at the level of the national executive committee; as there is no position which the appellant was elected, i.e. Secretary of International Affairs, it is irrelevant to grant the trade union leave of absence requested".

In this respect, the Committee notes that section 80 of the regulations contained in the Act pertaining to the teaching profession stipulates in the last part of paragraph (a) that in addition to the persons carrying out the responsibilities mentioned by the Government, "four representatives of each of the educational levels in question" are also entitled to leave of absence with pay. In these circumstance, noting that under section 80 of the Act pertaining to the teaching profession Mr. Auris Melgar may be entitled to trade union leave of absence and taking into account that in 1990 the authorities of the Ministry of Education authorized him to take this leave, the Committee requests the Government to take measures to ensure that the trade union official in question be granted the trade union leave of absence requested and to keep it informed in this respect.

The Committee's recommendations

445. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:

(a)As regards the FEB's allegations concerning the threats of dismissal and pressure placed on employees of the Banco de Crédito of Peru and Interbanc, the Committee requests the Government to take the necessary measures to ensure that employees also enjoy adequate protection in practice against any act of discrimination which could be detrimental to freedom of association in conjunction with their employment, particularly against any act intended to make an employee's employment conditional on his or her not becoming a member of a trade union or on giving up his or her membership of a trade union, as provided in Article 1 of Convention No. 98.

(b)With respect to the dismissal of 66 unionized employees of the National Health Institute (INS), including all the union leaders, following the assessment procedures, the Committee requests the Government to ensure that the evaluations are not used in practice for the commission of acts of anti-union discrimination.

(c)With reference to the allegations by SUTEP relating to the Ministry of Education's refusal to respond to its petitions, as well as to the refusal of union authorization for its leaders, the Committee observes , as the Government pointed out, that these allegations were dealt with in Case No. 1804 (Peru), and repeats its previous recommendations as follows:

REPORT IN WHICH THE COMMITTEE REQUESTS TO BE KEPT INFORMED OF
DEVELOPMENTS 

Complaints against the Government of Peru
presented by
-- the Single Trade Union of Technicians and Specialized Auxiliaries
of the Peruvian Social Security Institute (SUTAEIPSS) and
-- the Single Trade Union of Workers of the Peruvian Broadcasting
Company (SUTRACPR)

Allegations: Acts of discrimination through the
reclassification of workers into positions of trust

446. The Committee examined this case at its meeting of March 1997 and presented an interim report to the Governing Body [see 306th Report of the Committee, paras. 520 to 540, adopted by the Governing Body at its 268th Session (March 1997)].

447. The Government sent new observations in a communication dated 28 February 1997.

448. Peru has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No.87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98) and the Labour Relations (Public Service) Convention, 1978 (No. 151).

A. Previous examination of the case

449. In the recommendations that it formulated at its meeting in March 1997, the Committee proposed to examine the allegation by the Single Trade Union of Workers of the Peruvian Broadcasting Company (SUTRACPR) concerning the carrying out of acts of anti-union discrimination by the enterprise in the light of the Government's reply received on 28 February 1997 [see 306th Report, para. 540].

450. In it allegations, the SUTRACPR states that the Peruvian Broadcasting Company imposed a programme for the mass reclassification of 230 workers, all trade union members including all the union's leaders, into positions of trust. Since under national legislation workers in positions of trust can neither be union members nor bargain collectively, it can be concluded that this measure is an attempt by the enterprise to eliminate the trade union organization.

B. The Government's reply

451. In its communication of 28 February 1997, the Government states that the Peruvian Broadcasting Company, pursuant to Legislative Decree No. 728, an Act to promote employment and its Regulations, validly reclassified 218 workers as employees in positions of trust or managerial staff. The Government adds, however, that under section 35 of the above-mentioned Regulations, workers may appeal to the judicial authority in the event that they disagree with the employer's classification. None of the 218 workers classified as employees in positions of trust or managerial staff took any legal action against the enterprise in this respect. Finally, the Government states that under section 12(b) of the Act respecting collective labour relations, workers who are members of the managerial staff or hold positions in the trust of the employer may not belong to a trade union, except where the statutes make express provision for such a situation.

C. The Committee's conclusions

452. The Committee, in noting the information, regrets that the Government has not provided any information to clarify the allegedly anti-union nature of the programme for the mass reclassification of 218 workers into positions of trust or as managerial staff, especially bearing in mind that as pointed out by the complainant, all the workers classified as employees in positions of trust or managerial staff are trade unionists, and include all the union's leaders, a fact which was not denied by the Government.

453. In this respect, the Committee once again draws the Government's attention to the fact that

It is not necessarily incompatible with the requirements of Article 2 of Convention No. 87 to deny managerial or supervisory employees the right to belong to the same trade unions as other workers, on condition that two requirements are met: first, that such workers have the right to form their own associations to defend their interests and, second, that the categories of such staff are not defined so broadly as to weaken the organizations of other workers in the enterprise or branch of activity by depriving them of a substantial proportion of their present or potential membership.

The Committee recalls that -- "An excessively broad interpretation of the concept of "worker of confidence", which denies such workers their right of association, may seriously limit trade union rights and even, in small enterprises, prevent the establishment of trade unions, which is contrary to the principle of freedom of association."

In this context, "Legal provisions which permit employers to undermine workers' organizations through artificial promotions of workers constitute a violation of the principles of freedom of association." [See Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 231, 233 and 234 respectively.]

The Committee requests the Government to ensure that in future the application of such classification programmes is not used to carry out acts of anti-union discrimination, and to examine the relevant legislation to ensure that it takes into account fully the principles already cited.

The Committee's recommendations

454. In the light of the foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:

(a)As regards the allegation by the Single Trade Union of Workers of the Peruvian Broadcasting Company (SUTRACPR), the Committee requests the Government to carry out an investigation into the allegedly anti-union nature of the programme for the mass reclassification of 218 workers into positions of trust and as managerial staff and to keep it informed in this respect.

(b)The Committee requests the Government to ensure that in future staff reclassification programmes are not used to carry out acts of anti-union discrimination, and to examine the relevant legislation to ensure that it takes into account fully the principles cited in the conclusions concerning the right of workers in positions of trust to organize and the abuse of artificial promotions.

Case No. 1886

REPORT IN WHICH THE COMMITTEE REQUESTS TO BE KEPT INFORMED OF
DEVELOPMENTS 

Complaint against the Government of Uruguay
presented by
the Association of Banking Employees of Uruguay (AEBU

Allegations: Acts of anti-union discrimination

455. This complaint was presented in a communication from the Association of Banking Employees of Uruguay (AEBU) dated 6 June 1996. The Government sent its observations in a communication dated 23 January 1997.

456. Uruguay has ratified 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).

A. The complainant's allegations

457. In its communication dated 6 June 1996, the Association of Banking Employees of Uruguay (AEBU) states that on 17 January 1991 it lodged a complaint with the General Inspectorate of Labour and Social Security (IGTSS) concerning anti-union conduct by Lloyds Bank (BLSA) Limited against members of the banking union. The complainant adds that in an IGTSS administrative decision dated 10 March 1994, Lloyds Bank (BLSA) Limited was fined R.U.1,440 (one thousand, four hundred and forty readjustable units), as a penalty for the following anti-union conduct in violation of paragraphs 1 and 2, Article 1, of Convention No. 98: (a) awarding bonuses in 1990 to staff who worked during collective protest action; (b) only nominating non-union members for executive posts; and (c) granting a salary increase of 6 per cent in 1985 to non-union members. Lloyds Bank (BLSA) Limited subsequently submitted a request for review to the IGTSS and, as a back-up, an application for hierarchical remedy to the Executive Power. The complainant adds that on 12 February 1996 the Executive Power, citing errors of interpretation of the facts and of the applicable legal principles, revoked the administrative decision handed down by the General Inspectorate of Labour and Social Security dated 10 March 1994 imposing punitive action on Lloyds Bank for involvement in acts of anti-union discrimination. The complainant annexes copies of the report of the legal advisory office of the General Labour Inspectorate and of the administrative decisions handed down by the General Inspectorate of Labour and Social Security and by the Executive Power.

458. The complainant adds that it was informed of the Executive Power's administrative decision on 28 February 1996 and that within the legal deadline it lodged an action for annulment of the decision with the Administrative Court. Lodging an action for annulment entails a judicial process which last an average of three years. The complainant explains that the Administrative Court does not specialize in collective labour law and that, therefore, a complaint lodged by a trade union relating to anti-union conduct by a transnational enterprise will take at least nine years to determine. The time already spent and that will continue to be spent in litigation is testimony to how suitable national mechanisms are for obtaining redress for violated legal rights.

459. In conclusion, the complainant declares that Conventions Nos. 87 and 98 have not been respected in this case.

B. The Government's reply

460. In its communication dated 23 January 1997 the Government states as follows: (1) on 10 March 1994 the General Inspectorate of Labour and Social Security of the Ministry of Labour and Social Security handed down an administrative decision -- concluding the corresponding administrative investigation -- in which Lloyds Bank (BLSA) Limited was fined for infringement of international labour Convention No. 98 as a result of anti-union conduct; (2) Lloyds Bank (BLSA) Limited made the corresponding applications for administrative remedy against the administrative decision in accordance with the provisions of article 317 et seq. of the National Constitution, that is to say a request for review and an application for hierarchical remedy; (3) on 12 February 1996 the Executive Power, delivering its decision on the hierarchical remedy sought, revoked the administrative decision handed down by the General Inspectorate of Labour and Social Security, rendering the punitive action invalid; (4) on 6 June 1996 the Association of Banking Employees of Uruguay presented a complaint to this body concerning the administrative decision handed down by the Executive Power, maintaining that it contains errors both in its reasoning and its substance; and (5) furthermore, the AEBU concurrently lodged an action for annulment with the Administrative Court to obtain the annulment of the Executive Power's decision.

461. The Government stresses that the Administrative Court is the highest jurisdiction for administrative matters, that it tries requests for the annulment of definitive administrative instruments, judging their lawfulness. When it hands down the final judgement it either confirms or annuls the contested instrument. If it hands down a decision for annulment, the instrument is extinguished automatically, the extinction applying retroactively, the scope of the extinction being examined on a case-by-case basis. In the case under consideration, the annulment process referred to is currently at the proof stage, the request having been responded to by the administration, meaning that several procedural stages still remain to be completed (the parties' allegations, the report of the State Attorney-General) before a final decision is reached. The Government states that it will inform the Committee on Freedom of Association at the appropriate time of the results of this judicial process.

C. The Committee's conclusions

462. The Committee observes that the allegations in this case refer to acts of anti-union discrimination by Lloyds Bank against workers belonging to the Association of Banking Employees of Uruguay. More specifically, the complainant organization alleges that on 17 January 1991 it lodged a complaint with the General Inspectorate of Labour and Social Security of the Ministry of Labour concerning salary increases for non-union members, the appointment to executive posts only of workers not belonging to the union, and the granting of bonuses to workers who carried on working during a collective dispute.

463. The Committee notes that in its reply the Government states as follows: (i) on 10 March 1994, following an investigation, the General Inspectorate of Labour and Social Security of the Ministry of Labour handed down an administrative decision in which it imposed a fine on Lloyds Bank for infringement of international labour Convention No. 98 as a result of anti-union conduct; (ii) the enterprise applied for an administrative remedy against the administrative decision of the General Inspectorate of Labour and Social Security; (iii) on 12 February 1996 the Executive Power revoked the administrative decision handed down by the General Inspectorate of Labour and Social Security penalizing the enterprise; (iv) on 6 June 1996 the Association of Banking Employees of Uruguay applied for an administrative remedy and an application for annulment with the judicial authorities (Administrative Court) against the administrative decision handed down by the Executive Power; and (v) the judicial process is at the proof stage, meaning that various procedural stages still remain to be completed before a final decision is reached.

464. With respect to the allegation concerning a salary increase of 6 per cent for workers who were not affiliated to the union in 1985, the Committee notes that, as the complainant points out, and as the administrative decisions of the General Inspectorate of Labour and Social Security and of the Executive Power show, the increase did not become effective for union members initially. Although it was subsequently also granted to them, notably following collective action by the union, the Committee considers that union members clearly were prejudiced due to their trade union membership. In these conditions, the Committee, stressing that "no person shall be prejudiced in his employment by reason of his trade union membership or legitimate trade union activities, whether past or present" [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 690], requests the Government to take steps to ensure that in future such discriminatory acts do not occur.

465. Turning to the allegations relating to bonuses granted during a collective dispute to workers not belonging to the union, the Committee observes that on the one hand, the administrative decisions of the General Inspectorate of Labour and Social Security and of the legal advisory office provide as follows:

...Thus, it is fully proven in these proceedings that the advantages referred to were granted exclusively to officials who were not members of the union and during a period of considerable conflict in the banking sector given that the renewal of the collective agreement was being negotiated;

and

If the measure is neither in the nature of a sanction, nor constitutes a reward for excellent work independently of trade union membership as maintained by Lloyds Bank in a line of argument that it has now abandoned, the question should be asked what its true purpose is. And that purpose can be no other than the one mentioned in the report of the legal advisory office ... to reward during periods of conflict, staff who do not support trade union measures. This impairs trade union activity leading to the discriminatory anti-union conduct constituting the complaint.

On the other hand, the Committee observes that the Executive Power's administrative decision revoking the decision of the General Inspectorate of Labour provides as follows:

... It appears from the documentation available that the bonus was not granted to all non-union employees, but to a number representing less than 30 per cent of non-union employees, meaning that this award of bonuses cannot be deemed an act of discrimination against union members. Bonuses are not a form of compulsory remuneration but are sums of money that the employer, without being obliged to pay them, decides to grant to those officials he believes deserves them ... .

466. In this connection, notwithstanding the Executive Power's statement in its administrative decision that the bonuses were not granted to all workers who were non-union members, the Committee observes that no trade union member received a bonus and that the bonuses were granted during a period of conflict related to the negotiation of a collective agreement. This being the case, the Committee considers that granting bonuses to non-union member staff -- even if it is not to all non-union workers -- and excluding workers who are union members from such bonuses during a period of collective conflict, constitutes an act of anti-union discrimination contrary to Convention No. 98. The Committee therefore requests the Government to take the necessary measures to ensure against the repetition of such acts.

467. Concerning the allegation relating to the appointment of non-union workers to executive posts, the Committee observes that the administrative decisions of the General Inspectorate of Labour and Social Security and of the legal advisory office provide that

... The infringement of Convention No. 98 is proven in these proceedings in that it is evidently impossible for staff who are members of the banking union to be promoted to executive duties. It is not then a matter of making the employer responsible for proving his claims by producing generic and negative proof, but of carefully analysing the concrete elements of proof made available in these proceedings. Reference can therefore be made to testimonial declarations and documentary proof in support of the conclusion that the bank's promotion policy has been discriminatory vis-à-vis AEBU members ... Of the declarations made in the above-mentioned proceedings, emphasis is placed on those which relate to the personal experiences of members who received proposals of promotion on condition that they ceased their membership (Mr. Vietez and Mr. Tucuna) as well as those of current executives who were promoted once they had ceased their membership ... the declaration made by Mr. David Oscar Vietez takes on fundamental importance in clarifying the subject in question. He testifies having received from Mr. Máximo Domínguez the insinuation that if he ceased his membership of AEBU he had a chance of being appointed as an executive. This leads us to the conclusion that there was clear anti-union conduct which was repeated over time, mention being made in various testimonies of specific cases of workers who were promoted to managerial positions once they had ceased their membership.

The Executive Power's administrative decision revoking the decision of the General Inspectorate of Labour provides as follows:

Our judicial practice in the labour sphere distinguishes as a determining factor in the duties of executive and managerial officials, as distinct from other officials, their leading role in decision-making and in guiding the enterprise. This is why it is not possible to restrict the selection process for the enterprise's executive staff, which cannot be seen to be discriminatory. It has not been proven that the cessation of membership of officials was due to promotion to executive positions as, in the cases referred to in these proceedings, the promotion occurred a number of years after the cessation of membership, and thus a causal link cannot be established between the two events.

468. The Committee observes that the conclusions of the administrative decisions of the General Inspectorate of Labour and Social Security and of the Executive Power differ. Given this situation, the Committee considers that it does not have sufficient information to determine whether it was for anti-union reasons that the executive posts were reserved only for workers who did not belong to the trade union organization. In these conditions, the Committee requests the Government to send it the text of the Administrative Court's decision as soon as it is handed down.

469. Lastly, the Committee notes with concern that the alleged acts of discrimination in this case were reported to the administrative authorities in January 1991, that three years and two months later, in March 1994, the General Inspectorate of Labour and Social Security of the Ministry of Labour handed down an administrative decision imposing punitive action on the enterprise in question, that one year and 11 months after that, in March 1996, the Executive Power ruled on the applications for remedy made by the enterprise, revoking the administrative decision of the Labour Inspectorate, and that in June 1996 the complainant initiated administrative and judicial actions against the administrative decision of the Executive Power (according to the Government in its January 1997 reply the process is still at the proof stage). While noting that over six years have passed since the complaint was initially lodged through administrative channels, the Committee observes that in a recent case it examined relating to a complaint against the Government of Uruguay, it had already had occasion to regret the slowness of administrative inquiries into acts of discrimination and had requested the Government to take measures to ensure that in future investigations of this kind were completed rapidly [see 283rd Report, Case No. 1596 (Uruguay), paras. 371 and 374(b)]. In light of the foregoing and recalling that "cases concerning anti-union discrimination contrary to Convention No. 98 should be examined rapidly, so that the necessary remedies can be really effective. An excessive delay in processing cases of anti-union discrimination [...] constitutes a denial of justice and therefore a denial of the trade union rights of the persons concerned" [see Digest, op. cit., para. 749], the Committee urges the Government to take the necessary measures to ensure that in future, in the event of complaints of acts of anti-union discrimination, the corresponding authorities immediately carry out an investigation and take the appropriate measures to remedy the proven acts of discrimination.

The Committee's recommendations

470. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:

(a)With respect to the allegation concerning a salary increase granted to workers not affiliated to the AEBU trade union, the Committee, while emphasizing that nobody should be subject to discrimination in employment by reason of trade union membership or legitimate trade union activities, whether past or present, requests the Government to take measures to ensure that similar acts of discrimination do not occur in the future.

(b)In relation to the allegations concerning the bonuses granted to non-union workers during a collective conflict, the Committee requests the Government to take the necessary measures to ensure that such actions, which are contrary to Convention No. 98, do not occur.

(c)As regards the allegation concerning the appointment to executive posts at Lloyds Bank only of workers not belonging to the union, the Committee requests the Government to send it the text of the Administrative Court's decision on this matter as soon as it is handed down.

(d)Recalling that cases concerning anti-union discrimination contrary to Convention No. 98 should be examined rapidly so that the necessary remedies can be really effective, and that an excessive delay in processing cases of anti-union discrimination constitutes a denial of justice and therefore a denial of the trade union rights of the persons concerned, the Committee urges the Government to take the necessary measures to ensure that in future, in the event of complaints of acts of anti-union discrimination, the corresponding authorities immediately carry out investigations and take the appropriate measures to remedy the proven acts of discrimination.

Case No. 1812

INTERIM REPORT

Complaint against the Government of Venezuela
presented by
the International Secretariat of Arts, Communications
and Maintenance Trade Unions/International Federation
of Audio-visual Workers (ISETU/FISTAV)

Allegations: Employer interference in the establishment of a trade union

471. The Committee examined this case at its March 1996 meeting and submitted an interim report to the Governing Body [see 302nd Report, paras. 519 to 534, approved by the Governing Body at its 265th Session (March 1996)].

472. The Government sent its observations in a communication dated 20 May 1997.

473. Venezuela has ratified 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).

A. Previous examination of the case

474. In the previous examination of the case carried out in March 1996 [see 302nd Report, paras. 519-534] the allegations remained pending that the management of the CORAVEN-RCTV Broadcasting Company had encouraged the establishment of a new trade union (SINATRAINCORATEL) by means of a number of anti-union activities (presence of representatives of the enterprise at the constituent meeting of the new trade union, threats of dismissal against workers who did not join the new union, negotiation of a collective agreement with the new trade union when an earlier agreement was still in force, etc.) and that the administrative authorities committed certain irregularities in the registration of the new trade union. The already existing trade union (SRTVA) lodged various appeals against the acts mentioned.

475. The Committee observed with concern the extremely long period of time taken by the administrative authorities to examine this matter (from March 1994 to January 1996) and made the following recommendation [see 302nd Report, para. 534]:

The Committee requests the Government to provide information on the outcome of the appeal lodged by SRTVA with the Higher Labour Tribunal concerning the alleged interference of the management of CORAVEN-RCTV in the establishment and functioning of SINATRAINCORATEL.

B. The Government's reply

476. In a communication dated 20 May 1997, the Government states that the Ministry of Labour rejected two appeals from the SRTVA to have the registration of SINATRAINCORATEL cancelled. It could have instituted legal proceedings within a period of six months after the last decision (3 January 1996). The Government indicates that it is not competent to cancel the registration of an organization since it would amount to a dissolution by administrative authority, which is in violation of Convention No. 87. Since SINATRAINCORATEL was created with employer interference, the parties concerned should appeal to the competent judicial organ.

C. The Committee's conclusions

477. The Committee takes note of the Government's observations, and notes that it is not clear whether the union SRTVA has submitted an appeal to the judicial authority or not. In this regard, the Committee requests the Government to indicate whether the SRTVA has instituted legal proceedings concerning the allegations of interference by the management of CORAVEN-RCTV in the creation as well as in the activities of the union SINATRAINCORATEL and, if this is the case, to inform it of the decision in question.

478. Just as in its previous examination of the case, the Committee once again highlights the extremely long period of time (from March 1994 to January 1996) taken by the Ministry of Labour to rule on SRTVA's appeal to have the registration of the new trade union (SINATRAINCORATEL), created with the interference of the employer, cancelled, and hopes that the judicial authority will be able to deliver a decision shortly.

The Committee's recommendation

479. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendation:

Case No. 1909

DEFINITIVE REPORT

Complaint against the Government of Zimbabwe
 presented by
the International Confederation of Free Trade Unions (ICFTU)

Allegations: Violation of the right to demonstrate, assaults on,
and arrest of, trade union officials

480. In a communication of 15 November 1996, the International Confederation of Free Trade Unions (ICFTU) submitted a complaint of infringements of trade union rights against the Government of Zimbabwe.

481. The Government supplied its observations on the case in a communication dated 20 January 1997.

482. Zimbabwe 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. The complainant's allegations

483. In its communication of 15 November 1996, the ICFTU asserts that this case involves significant violations of trade union rights involving leaders and members of its affiliate, the Zimbabwe Congress of Trade Unions (ZCTU). The ICFTU indicates more specifically that on 11 November 1996 a group of about 100 workers gathered peacefully near the Ministry of Justice in Harare to express solidarity with striking doctors and nurses. While sitting under the trees they were brutally attacked by some 50 police officers firing tear gas grenades. Those attempting to escape were beaten by the police wielding clubs. A number of trade union officials, including ZCTU General Secretary, Morgan Tsvangirai, and ZCTU Vice-President, Isaac Matongo, were arrested and questioned at police headquarters before being released. This provocation has led to a threat to call a general strike by the ZCTU.

484. The ICFTU contends that the Government's continued refusal to promote dialogue through the industrial relations process has led to repeated unrest in the public sector throughout 1996. The most recent case was the unilateral decision to dismiss 1,000 doctors and nurses rather than discuss grievances. This resulted in a three-week health sector strike, further eroding labour relations in Zimbabwe.

485. The ICFTU points out that workers and their organizations should have the freedom to peacefully express their dissatisfaction as regards economic and social matters which affect their members. The systematic denial of legitimate requests for dialogue and the brutal repression of protest are violations of the most basic principles of freedom of association. The ICFTU concludes that as an ILO member State, Zimbabwe is bound to respect the fundamental Conventions on freedom of association.

B. The Government's reply

486. In its communication of 20 January 1997, the Government categorically denies that a group of about 100 workers who had demonstrated peacefully near the Ministry of Justice in Harare on 11 November 1996, had been brutally attacked by the police. First of all, the Government points out that freedom of association is enshrined in the country's Constitution which states that: "No person shall be hindered in the enjoyment of his freedom of assembly and association, that is to say, his right to assemble freely and associate with other persons and in particular, to form or to belong to political parties or trade unions or other associations for the protection of his interests".

487. Since it is a constitutional right to demonstrate peacefully and to associate freely in any organization of one's choice, the Government asserts that the persons involved could have taken the matter to a court of law since their constitutional rights had been allegedly infringed. The Government assumes that they did not do so because they knew they had no case against the police. Moreover, if indeed the ICFTU's and ZCTU's allegations (to the effect that the workers sitting under a tree were brutally attacked by the police) are genuine, the Government states that one could assume that some people were injured. The Government indicates, however, that it has no report or record of any one person who was hospitalized as a result of this alleged incident.

488. The Government indicates that what actually happened on 11 November 1996 was that a group of people gathered outside a courtroom at Rotton Row Regional Courts with the intention of hearing the case regarding the illegal strike by nurses and doctors. However, some people began to violently force their way into the courtroom as it could only take in 30 people. After repeatedly warning them no to do so, the police used tear gas to disperse these persons in order to restore law and order. It is the Government's understanding that the policemen involved were highly trained officers who used quantities of tear gas in accordance with professional standards to disperse the crowd. After the crowd dispersed, there was no need for the use of any other force. Therefore, no person was assaulted thereafter.

489. Regarding the allegation that Morgan Tsvangirai, ZCTU General Secretary, and Isaac Matongo, ZCTU Vice-President, were arrested, the Government states that no one was arrested. It acknowledges that two officials of the ZCTU were taken to the police station for questioning, to enlighten the police on the general strike that they intended to call. This was in the public interest to make sure the strike would be orderly.

490. Referring to the doctors' and nurses' strike mentioned by the ICFTU in its complaint, the Government emphasizes that under the country's laws, doctors and nurses are considered to be persons working in essential services and therefore cannot go on strike. By going on strike, their action was illegal. ZCTU's demonstration therefore was in support of an illegal strike. In the Government's view, the police acted within their constitutional rights to restore law and order in a situation which was certain to disturb public order and peace as well as to endanger human life and property.

C. The Committee's conclusions

491. The Committee notes that the allegations in this case concern the breaking up by the police of a peaceful demonstration held by members of the Zimbabwe Congress of Trade Unions (ZCTU), as well as physical assaults carried out on these workers by the same police force. These allegations further refer to the arrest of the ZCTU General Secretary, Morgan Tsvangirai, and the ZCTU Vice-President, Isaac Matongo, following this demonstration.

492. As regards the alleged breaking up of a ZCTU demonstration by the police on 11 November 1996, the Committee observes the very large contradiction between the complainant's and Government's statements as to the nature of the demonstration. The complainant asserts that the 100 or so workers were brutally attacked by 50 police officers when they were sitting under some trees near the Ministry of Justice to express solidarity with striking doctors and nurses. The Government contends, however, that these persons tried to violently force their way into the courtroom in order to hear the case regarding the illegal strike by doctors and nurses. The police were obliged to use tear gas to disperse these persons in order to restore law and order. The Government categorically denies, however, that any other force was used by the police, as alleged by the complainant.

493. In these conditions, the Committee can only recall that workers should enjoy the right to peaceful demonstration to defend their occupational interests. The authorities should resort to the use of force only in situations where law and order is seriously threatened. The intervention of the police should be in proportion to the threat to public order and governments should take measures to ensure that the competent authorities receive adequate instructions so as to avoid the danger of excessive violence in trying to control demonstrations that might undermine public order [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 132 and 137]. The Committee requests the Government to respect these principles.

494. As regards the complainant's contention that the ZCTU General Secretary, Morgan Tsvangirai, and ZCTU Vice-President, Isaac Matongo, were arrested and questioned at police headquarters before being released, the Government denies that these two trade union officials had been arrested. The Government acknowledges none the less that two officials were taken to the police station for questioning, in order to enlighten the police on the general strike that the ZCTU intended to call. In this respect, the Committee reminds the Government that measures depriving trade unionists of their freedom on grounds related to their trade union activity, even where they are merely summoned or questioned for a short period, constitute an obstacle to the exercise of trade union rights [see Digest, op. cit., para. 77]. The Committee therefore requests the Government to ensure that the authorities concerned refrain from having recourse to such measures in the future.

The Committee's recommendations

495. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:

(a)The Committee requests the Government to respect the principles relating to the right to demonstrate of workers.

(b)The Committee reminds the Government that measures depriving trade unionists of their freedom on grounds related to their trade union activity, even where they are merely summoned or questioned for a short period, constitute an obstacle to the exercise of trade union rights. It therefore requests the Government to ensure that the authorities concerned refrain from having recourse to such measures in the future.

Geneva, 6 June 1997.

Max Rood,
Chairman.

Points for decision:


Updated by VC. Approved by NdW. Last update: 26 January 2000.

For further information, please contact the Official Relations Branch at Tel: +41.22.799.7732, Fax: +41.22.799.8944 or by e-mail: RELOFF@ilo.org

Governing Body: [ Top | Previous sessions | Records of Decisions ]

© 1996-2022 International Labour Organization (ILO) | Copyright and Permissions | Privacy policy | Disclaimer